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The opinion of the court was delivered by
Six, J.:
This is a summary judgment appeal by a parent, as plaintiff, seeking to impose civil liability on a handgun owner for the death of the parent’s son. The claim arises from the fatal shooting of Alice Long’s son, Tony, by defendant Steven Turk’s son, Matthew. Both boys were minors. Tony was killed by a hollow point bullet from a .357 Magnum handgun owned by Steven Turk.
Jurisdiction is under K.S.A. 20-3018(c), a transfer from the Court of Appeals on our motion.
The issues are:
(1) Does the inherently dangerous instrument doctrine require an owner of a .357 Magnum handgun to exercise the highest degree of care in safeguarding it?
(2) Did the district court err in granting summary judgment for the defendant father?
The answer on both issues is, “yes.” We reverse the summary judgment.
FACTS
Matthew, age 17, was driving his car in Topeka around 9:30 p.m. on October 18, 1994. He knew it was illegal to carry a concealed weapon in the car. He encountered a van in which Tony, also 17, was a passenger. A shouting match followed. After driving side-by-side for a few blocks, the van turned. Matthew followed. He reached under the floor mat of his car, pulled out his father’s .357 Magnum handgun, and fired one shot out the passenger side window. The hollow point slug went through the back window of the van, killing Tony. Matthew was tried as an adult and convicted of involuntary manslaughter.
At the time of the shooting, Matthew, who lived with his parents, was 37 days short of his 18th birthday. Matthew’s father, Steven, owned many guns, which were locked in a gun safe. (The .357 Magnum was registered in Steven’s wife’s name although Steven bought it and his wife never used it.) Matthew knew where the keys to the safe were. He had access to all his father’s guns. The .357 Magnum was in a hidden compartment of a cabinet. The compartment was secured by 2-Vz inch screws. Matthew helped his father build the compartment. The .357 Magnum and the hollow point bullets were in the same cabinet.
There is conflicting evidence in the record about whether Matthew took the gun without his father’s permission or whether his father gave him the gun for protection. Matthew, in his deposition here and at his criminal trial, testified that: (1) he took the gun when his parents were not home and (2) he was not supposed to take the gun without his father’s permission.
Police and expert witness reports from the criminal case attached to Matthew’s deposition, however, suggest that: (1) Steven had given Matthew permission to use the gun for protection on previous occasions, (2) the handgun had been provided for him for protection by his family as part of the security system the family believed was necessary because of the neighborhood conditions where they lived, and (3) Steven knew Matthew was carrying a handgun for his own protection as people had been bothering him.
Steven objects to consideration of the reports on appeal, contending that they are not affidavits and were not adopted by Matthew. Long counters that the reports were exhibits attached to the deposition and the district court referred to facts contained in the reports in making its ruling.
The district court’s Memorandum Decision and Order says in part:
“While defendant [Steven Turk] had not given Matthew permission to carry the gun on the day in question, he regularly gave him permission to carry it on other occasions. He did so believing that his son needed protection given the level of crime activity in their neighborhood (Emphasis added.)
During Matthew’s deposition, he was asked to read a report of his examination by Dr. R.E. Schulman, a clinical and forensic psychologist. Counsel for Long instructed Matthew: “You can stop reading when it gets down to collateral contacts. The rest is his analysis. What I’m trying to cover is your information you gave to him.”
The questioning continued:
“Q. Okay. Now, did you look over [the Schulman] report?
“A. Yes, I did.
“Q. Is there anything in the report where you didn’t tell the truth to the doctor that you can tell?
“A. No. Those — I don’t believe those are my exact words. Those are like his summary of our, you know, times together.”
At this point counsel for Steven objected to the form of the question and said:
“[The Schulman report and a report from William S. Logan, M.D.] are both in juvenile court proceedings to determine whether [Matthew] should be tried as an adult. I’ll make my objection for the record. We’ll deal with it later.”
Dr. Schulman said in the PRESENT CIRCUMSTANCES section of his report referencing the date of the fatal shooting:
“[Matthew] noted, too, that on the previous day when he had been working on his automobile, people had bothered him and frightened him while he was at his own home. Under the seat of his car was a revolver. The revolver had been provided for him for protection by his family. This was part of the security system that the family believed was necessary because of the circumstances surrounding their home as described above. He did take the revolver and discharge it in the direction of the van. Apparently shooting through the open passenger side window of his vehicle.”
Matthew was cross-examined by his father’s counsel using Dr. Logan’s report. (Section F is labeled “Mr. and Mrs. Turk (Matthew’s parents.)” Section F says, in part:
“At the police station Officer Young spoke with Mr. and Mrs. Turk. Mr. Turk knew his son was carrying a gun for his own protection as people had been bothering him. They said they lived in a rough neighborhood and that he needed it for protection. They knew Matt was proficient with the firearm and practiced with the weapon on occasion ‘but described him as a veiy good boy and one who took care of them.’ (See report of Officer Young).”
The objection to the reports was never ruled on. No objection to the reports was made in the summary judgment submission Steven presented to the district court. The reports marked as deposition exhibits were in the record before the district court and indirectly referenced in the district court’s decision. They are in the record on appeal.
Alice Long alleges in her amended petition that Steven Turk was responsible for the death of her son
“as the owner of the handgun in question and/or the ammunition used in this shooting because,
“(a) He failed to properly secure the weapon and/or the ammunition;
“(b) He was negligent in his instruction of Matthew Turk with respect to the use of weapons;
“(c) He failed to take adequate safeguards to keep Matthew away from both this gun and/or the ammunition after Matthew had been apprehended with a sawed-off shotgun in his possession.”
Steven and Matthew were deposed. Steven moved for summary judgment.
The District Court Opinion
The district court granted summary judgment for Steven relying on Capps v. Carpenter, 129 Kan. 462, 283 Pac. 655 (1930), and Restatement (Second) of Torts § 308 (1964). The district court said, in part:
“From Capps and the Restatement, it is clear that it is not enough that defendant allowed his son to carry one of his guns in order to find liability on part of the defendant. Instead, from Matthew’s past or from his disposition, it must have been clear to defendant that it was foreseeable that Matthew was likely to use the gun to commit a tort against another. Anything less results in no liability on the part of defendant for the acts of his son.
“Because Matthew had no previous violent tendencies, nor had he shown any likelihood that he would ‘use the thing in such a matter as to create an unreasonable risk of harm to others,’ there is no liability on the part of defendant for entrusting a gun to his son. Consequently, defendant is entitled to summary judgment.”
Alice Long appealed. The Center to Prevent Handgun Violence of Washington, D.C., and the Kansas Trial Lawyer’s Association have filed amicus curiae briefs. Both amicus briefs support and supplement Long’s contentions.
DISCUSSION Inherently Dangerous
Initially, we ask, does the inherently dangerous instrument doctrine, as Long contends, require an owner of a .357 Magnum handgun to exercise the highest degree of care in safeguarding it? We characterize this inquiry as the centerpiece of Long’s appeal.
Long submits handgun statistics and reprints from published materials to persuade us that handguns are inherently dangerous. We are invited by the parties to review gun/death/injury civil cases from other jurisdictions. See Annot, 68 A.L.R. 2d 782, and Later Case Service, 67-69 A.L.R. 2d, p. 234.
We have no difficulty concluding that a .357 Magnum handgun is a dangerous instrumentality. The highest degree of care is required in safeguarding such a handgun. Even Steven, in advancing the argument that strict liability does not apply here, quotes Wroth c. McKinney, 190 Kan. 127, 129, 373 P.2d 216 (1962), for the position that
“liability for keeping a dangerous instrumentality is not an absolute liability so as to make the defendant an insurer . . . , but that liability for negligence in respect to dangerous instrumentalities, as liability for negligence, generally arises from the failure to use due care.”
We have characterized certain instrumentalities, i.e., explosives, gas distribution systems, electrical transmission lines, and firearms, to be inherently dangerous. Pleightened care in their safekeeping is required. See Cope v. Kansas Power & Light Co., 192 Kan. 755, 391 P.2d 107 (1964) (a high voltage wire); Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P.2d 162 (1940) (gas leaking from a utility’s lines); Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320 (1915) (solidified glycerine explosive).
We turn now to our firearms cases. In Wroth, 190 Kan. 127, a plumber had, according to his custom and with the prior knowledge and acquiescence of the homeowner, taken his 4-year-old son along with him to work at the McKinney home. McKinney owned a loaded revolver that he kept in his bedroom in an easily accessible location. The plumber’s child found the revolver and shot and killed himself.
In holding that a cause of action was stated against McKinney, we addressed liability for keeping a dangerous instrumentality, 190 Kan. at 129.
In Wroth, we summarized our position as follows:
“Kansas has long followed the rule that the highest degree of care is required of all responsible persons having ownership or control of dangerous explosives such as dynamite and firearms. [Citing Clark v. Powder Co., 94 Kan. 268.] Under the Clark case the degree of care has to be commensurate with the dangerous character of the instrumentality and a duty to exercise the highest degree of care never ceases.” 190 Kan. at 130. (Emphasis added.)
In Wroth, we cited the Restatement of Torts, Negligence § 308, comment b, p. 836 (1934) (190 Kan. at 130), the forerunner of Restatement (Second) of Torts § 308 (1964).
Section 308 of the Restatement (Second) of Torts (1964) provides:
“§ 308. Permitting Improper Persons to Use Things or Engage in Activities It is negligence to permit a third person to use a thing or to engage in an activity which is under the control of the actor, if the actor knows or should know that such person intends or is likely to use the thing orto conduct himself in the activity in such a manner as to create an unreasonable risk of harm to others.”
Comment b of the Restatement (Second) of Torts § 298 (1964) is also pertinent here. Comment b says, in part:
“Care required. The care required is always reasonable care. This standard never varies, but the care which it is reasonable to require of the actor varies with the danger involved in his act, and is proportionate to it. The greater the danger, the greater the care which must be exercised.
"... Thus those who deal with firearms . . . are required to exercise the closest attention and the most careful precautions, not only in preparingfor their use but in using them.” (Emphasis added.)
See Prosser and Keeton, The Law of Torts § 34, p. 208 (5th ed. 1984).
The district court relied on Capps v. Carpenter, 129 Kan. at 463, a 1930 case involving a spring gun “of the size, weight, and appearance of the familiar 'air gun.’ ” Capps is not a dangerous instrumentality case. The defendant father in Capps allowed his 8 year-old son to have a BB gun. Carrol, a boy nearly 7 years of age, was shot in the eye. The BB gun “was not a firearm, did not belong to any branch of the weapon family, and was used for diversion and amusement.” 129 Kan. at 463. The juiy was instructed that the air gun was a “dangerous agency or weapon.” 129 Kan. at 464. We reversed the plaintiff’s recovery, holding that the subject of dangerous agency should not have gone to the jury. 129 Kan. at 465.
The injury in Capps occurred while the boys were sitting on a porch swing. The flavor of another era is found in the language of Justice Burch: “A boy’s sword of lath can injure an eye, and innumerable toys and house and garden and farm articles, utensils and implements are capable of inflicting serious bodily injury. That does not make them dangerous instrumentalities.” 129 Kan. at 465.
We acknowledged the nonliability of a parent for torts of a minor child in Capps, 129 Kan. at 469. Capps, however, after invoking an auto analogy of the “doting parent” consenting to the “beseeching minor child” to drive the parent’s car, reasoned:
“The parent, however, is subject to liability, not because of his relation to the automobile as owner, or because of his relation to the child as parent, but because of his own negligence — because of not taking reasonable precaution against an injurious result which he could well foresee.” 129 Kan. at 469.
Parman v. Lemmon, 119 Kan. 323, 244 Pac. 227 (1925), and Parman v. Lemmon, 120 Kan. 370, 244 Pac. 232 (1926), are gun cases of interest. Justice Mason’s dissent in Parman 1, 119 Kan. at 332, became the opinion of the court on rehearing in Parman II, 120 Kan. at 372-73. Parman II held that a 20-gauge Winchester pump shotgun is not a dangerous weapon under R.S. 1923, 38-701 or R.S. 1923, 38-702 which prohibited possession of dangerous weapons by a minor. Parman II concluded that if the 1883 legislature had intended to include shotguns in the prohibited list of dangerous weapons, it would have specifically mentioned them. 120 Kan. at 372.
The 1920’s pastoral hunting scene, described in Parman I and 11, provides a stark contrast to the facts here. The boys in Parman were 14 and 16, hunting ducks on an October Sunday afternoon. William fired at a “hell-diver” (dabchick or grebe) on a small pond. Some of the shot glanced on the water, striking the 16-year-old plaintiff and putting out his eye.
The statutes involved in Parman 1 and II were R.S. 1923, 38-701 (prohibiting furnishing a pistol, revolver and other enumerated items as well as “other dangerous weapons” to a minor) and R.S. 1923, 38-702 (prohibiting a minor from possessing any items listed in 38-701). A conviction under either statute was a misdemeanor and resulted in a fine.
R.S. 1923, 38-702 and R.S. 1923, 38-701 were similar to the legislative expression in place in 1994 when Matthew killed Tony. Long does not rely on K.S.A. 21-4203(a)(l) to assert a private cause of action arising from the statute. However, K.S.A. 21-4203(a)(l) reflects the public policy of Kansas to restrict handgun access of persons under 18. It provides in part:
“(a) Criminal disposal of firearms is knowingly: (1) Selling, giving or otherwise transferring any firearm with a barrel less than 12 inches long to any person under 18 years of age.”
K.S.A. 21-4204a provides in part:
“(a) Criminal possession of a firearm by a juvenile is knowingly possessing a firearm with a barrel less than 12 inches long by any person less than 18 years of age.”
(Seven exceptions are fisted. None apply here.) A conviction under either statute is a misdemeanor.
The parties are before us on summary judgment. We do not know if Steven knowingly gave or otherwise transferred the .357 Magnum to Matthew. Steven was not charged under K.S.A. 21- 4203(a)(1). The stories vary on Matthew’s possession of the .357 Magnum the night Tony was killed. Steven’s negligence, if any, will be decided by the trier of fact. The jury must assess Steven’s conduct under all surrounding circumstances.
The legislative policy behind K.S.A. 21-4203 and 21-4204a supports our holding that Steven owes the public a duty to store his .357 Magnum in a safe and prudent manner, taking into consideration the type of handgun, where the ammunition is located, and the circumstances of the gun’s use. See Estate of Strever v. Cline, 278 Mont 165, 174-75, 924 P.2d 666 (1996).
A review of Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980), is appropriate as we look to the interplay of the criminal statutes K.S.A. 21-4203 and 21-4204a, and civil liability. Arredondo held that K.S.A. 60-258a (the comparative negligence statute) applies in a personal injury action where liability is based on a violation of K.S.A. 21-4209, which prohibits the sale of explosives to minors.
Arredondo, a 16-year-old, bought gunpowder from Duckwall Stores. He reloaded shotgun shells and was injured when the gun fired. In discussing the legislative intent behind K.S.A. 21-4209, we observed:
“In 1969, the firearms and explosives sections were grouped together in article 42 of chapter 21 as ‘Crimes Against the Public Safety.’ This placement and caption were the result of legislative action. The Judicial Council comment acknowledges the public safety purposes of the act. Sale or transfer of either handguns or explosives to minors, habitual drunkards, narcotic addicts, or recently convicted felons might result in injury to the purchaser or transferee, but injury to the public seems more probable and is the more logical and compelling reason for the enactment of both the firearms and the explosives acts. We cannot attribute the purpose of protecting minors, habitual drunkards, narcotic addicts, or felons from themselves as the impelling reason for this enactment; the safety of the public— including minors and the other classes — is the paramount purpose.” (Emphasis added.) 227 Kan. at 847.
K.S.A. 21-4203 (giving or otherwise transferring a handgun to a minor) and K.S.A. 21-4204a (minor knowingly possessing a handgun) are located in the same Chapter 42.
A factual determination is required to decide whether the steps Steven took to safeguard the gun met the highest degree of care test.
Foreseeability
We turn now to the foreseeability issue. We disagree with the district court in granting summary judgment for Steven on the ground that the harm caused by Matthew was as a matter of law not foreseeable.
Our summary judgment standard has been frequently expressed. All facts must be taken in the light most favorable to Long, who opposed summary judgment. See Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 60-256(c). Our standard of review is de novo. See Mark Twain Kansas City Bank v. Rroh Bros. Dev. Co., 250 Kan. 754, Syl. ¶ 2, 863 P.2d 355 (1992).
The district court properly assumed handgun entrustment in the light most favorable to Long — that Steven had entrusted the .357 Magnum to Matthew. This fact is disputed. (Steven contends Matthew unscrewed the hidden compartment and took the .357 Magnum without permission.) The district court noted that it did not reach the permission question because it found permission to be irrelevant to the ultimate legal question of foreseeability.
According to the district court, Matthew had not shown any likelihood that he would use the handgun in a manner creating an unreasonable risk of harm to others. We have held that whether risk of harm is reasonably foreseeable is a question for the trier of fact. Only when reasonable persons could arrive at but one conclusion may the court decide the question as a matter of law. Nero v. Kansas State University, 253 Kan. 567, 583, 861 P.2d 768 (1993). In Nero, we reversed summary judgment for the university. The issue was whether the university had a duty to protect residence hall students and, if so, the nature and extent of that duty. See also Kansas State Bank & Tr. Co. v. Specialized Transportation Services, Inc., 249 Kan. 348, 362, 819 P.2d 587 (1991), on the issues of risk of harm and foreseeability.
Long contends that the record shows that Steven knew Matthew drank alcohol, had been stopped for an alcohol-related offense, and had taken and concealed Steven’s sawed-off shotgun. Matthew was involved in the shotgun incident in June 1993 while driving with three other teenage boys as passengers. (Tony was killed on October 18, 1994.) The car was stopped. A stolen stereo speaker was in the car. A sawed-off shotgun was found under the driver’s seat, and Matthew admitted the shotgun belonged to him. The gun was taken by the authorities. Two shotgun shells were in the ashtray, and a third was loaded in the gun. Steven identified the shotgun as his but did not realize Matthew had removed it.
A month later Matthew was arrested for the alcohol-related offense while driving again with teenagers. Open containers were found in the car. He was placed on diversion. Matthew at age 14 had been arrested with two other youths who had attempted to start a fire on Burnett’s Mound in southwest Topeka. Matthew had thrown a botde of sulfuric acid against a wall at school a month before he killed Tony. We believe Matthew’s past, when viewed in the light most favorable to Long, raises a disputed risk of harm foreseeability issue. Based on the record, the trier of fact should decide if it was foreseeable that Matthew would use the .357 Magnum to protect himself from the people who were bothering him. Reasonable persons could disagree whether Matthew’s use of the .357 Magnum was foreseeable.
Strict Liability and Proximate Cause
Two additional matters deserve comment. Long advocates adoption of the doctrine of abnormally dangerous activity as a form of strict liability for handgun owners. The position advanced is that entrusting a handgun to (or failing to prevent access to a handgun by) a minor is so dangerous and socially undesirable that imposition of the burden of strict liability is appropriate. We are asked to follow Berry v. Shell Petroleum Co., 140 Kan. 94, 33 P.2d 953 (1934) (salt water damage to land); Laterra v. Treaster, 17 Kan. App. 2d 714, 844 P.2d 724 (1992) (suicide by automobile exhaust); Mills v. Smith, 9 Kan. App. 2d 80, 673 P.2d 117 (1983) (wild animals); and Hahn v. Kordula, 5 Kan. App. 142, 48 Pac. 896 (1897) (vicious dog). One aspect of Long’s argument is the mounting evidence that handguns in the hands of teenagers pose a great risk to society.
The doctrine of abnormally dangerous activity/strict liability was not considered by the district court. We have reversed summary judgment. We need not extend our appellate reach to address strict liability under the facts here.
The issue of proximate cause is raised by Steven. He argues that the killing of Tony by Matthew was an intervening criminal act that excludes any of his negligence as a cause of Long’s damages. Steven’s contention on the proximate cause question is not well taken. See Citizens State Bank v. Martin, 227 Kan. 580, 588, 609 P.2d 670 (1980). Relying on Restatement (Second) of Torts § 448 (1964), Citizens State Bank, 227 Kan. 580, Syl. ¶ 5, says:
“One who has a duty to protect others, and who negligently breaches that duty, resulting in injury, is not excused by intervening innocent, negligent, intentionally tortious, or criminal acts of a third person.”
Reversed and remanded.
On the day in question, Matthew obtained the gun he used to shoot Tony Long by unscrewing the bottom of the gun cabinet and removing the gun from the bottom compartment. This leads to the factual questions as to whether Matthew had permission to use the gun at all, and whether you could keep a gun out of a minor’s hands when they are willing to go to such extreme measures to obtain the gun. The Court does not resolve these questions because the Court finds them irrelevant to the ultimate legal question.
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator’s office against Michael L. Lewis, of Topeka, an attorney admitted to the practice of law in Kansas.
The formal complaints filed against respondent consist of eight counts and allege violations of MRPC 1.1 (1997 Kan. Ct. R. Annot. 268), 1.3 (1997 Kan. Ct. R. Annot. 276), 1.4 (1997 Kan. Ct. R. Annot. 282), 1.5 (1997 Kan. Ct. R. Annot. 289), 1.15 (1997 Kan. Ct. R. Annot. 316), 1.16 (1997 Kan. Ct. R. Annot. 324), 7.3 (1997 Kan. Ct. R. Annot. 360), and 8.4(a), (c), (d), and (g) (1997 Kan. Ct. R. Annot. 366), and Supreme Court Rule 207 (1997 Kan. Ct. R. Annot. 213).
On November 13, 1997, this court issued a show cause order why respondent should not be temporarily suspended from the practice of law. Respondent appeared before this court on December 9, 1997. Respondent denied that he violatéd the Model Rules of Professional Conduct as alleged by the Disciplinary Administrator and indicated that he was anxious to appear before the panel and would be able to successfully respond to the charged violations. Based upon respondent’s appearance and the fact that the panel hearing on the alleged violations was set for January 6, 1998, this court discharged the show cause order.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held January 6, 1998. The Disciplinary Administrator appeared by Frank D. Diehl, Deputy Disciplinary Administrator. Respondent did not appear in person or by counsel. The panel, based on clear and convincing evidence, made the following findings and conclusions:
“FINDINGS OF FACT
“The panel unanimously concludes there is clear and convincing evidence to establish the following findings of fact:
“1. Respondent is an attorney at law. His Kansas Registration Number is 08641. His last registration address with the Clerk of the Appellate Courts is P.O. Box 67058, Topeka, Kansas [66617], The last known street address for the Respondent’s office is 5709 SW 21st Street, Topeka, Kansas [66617].
“[Complaint] No. A6622
“2. Betty L. Howey (now Betty Helms), complainant, and her daughter-in-law, Pamela Howey, hired the Respondent to represent them in a personal injury claim which was the result of an automobile accident which occurred May 1,1994. The complainant at the time of the accident was approximately sixty-seven (67) years old and was a passenger in a car driven by her daughter-in-law.
“3. The complainant suffered a broken neck, broken pelvis and other injuries in the automobile accident and suffered from some type of memory loss. The complainant’s medical bills exceeded $70,000.00.
“4. The Respondent visited with the complainant at her home on at least two (2) occasions and took photographs. The complainant went to the Respondent’s office on four (4) or five (5) occasions without appointments but the complainant was unsuccessful in meeting with the Respondent at his office due to various excuses for his absences.
“5. The complainant’s insurance carrier, Kemper Mutual, agreed to pay $4,500.00 in medical bills. The $4,500.00 check was sent to the complainant and was made out to the complainant and Stormont Vail Hospital. The Respondent took the check from the complainant during the course of one of his home visits.
“6. The $4,500.00 from Kemper Mutual was never sent to Stormont Vail Hospital. The complainant questioned the Respondent about the check and the Respondent indicated that there was nothing to worry about as the check would ‘rmi out’ and the company would renew it.
“7. The complainant and Pamela Howey then fired the Respondent due to his failure to return their phone calls, failure to keep them informed as to the status of the case, failure to respond to unannounced office visits and the manner in which he handled the check from Kemper Mutual. The complainant stopped payment on the insurance company check because the Respondent held it for so long.
“8. The complainant and her daughter-in-law then hired a new lawyer, Mr. Jack Heath, of the firm of Heath & Fisher. The complainant informed Mr. Heath that she was unable to reach the Respondent by telephone or in writing. The complainant was finally able to discharge the Respondent in March of 1995.
“9. Between March 23, 1995 and April 13, 1995, Mr. Heath called the Respondent’s office and was informed that Mr. Lewis, the Respondent, was not available. Mr. Heath left a message for the Respondent to return his phone call but no phone call was ever returned by the Respondent.
“10. On April 13,1995, Mr. Heath mailed a certified letter to the Respondent and asked that he communicate with Mr. Heath. The letter was returned unclaimed and unopened. On June 7,1995, Mr. Heath forwarded to the Respondent by certified mail a copy of the letter of June 7,1995 addressed to Greg Joens [sic] of State Farm Insurance indicating that the Respondent had not returned his phone calls or answered letters. This June 7,1995 letter was returned unclaimed as well. The letter was resent to the Respondent and was accepted on June 28, 1995 and signed for by Margaret K. Telthorst.
“11. Kemper Mutual then forwarded a PIP check in the amount of $400.00 payable to the complainant, the Respondent and Jack Heath. Because Mr. Heath was unable to communicate with Mr. Lewis and could not secure his signature on the check, the check was rendered non-negotiable. The check was returned to Kemper Mutual with a request to issue another check made payable to Betty L. Howey, the complainant. Kemper Mutual indicated they would only issue PIP checks to Ms. Howey and the Respondent, Michael Lewis until Mr. Lewis confirmed he was no longer representing the complainant. Kemper Mutual stated that they were also having a difficult time contacting the Respondent,
“12. Mr. Heath attempted to secure the files for the complainant from the Respondent’s possession but the Respondent was never available and did not return phone messages.
“13. Mr. Heath attempted to have Kemper Mutual issue a check payable only to the complainant but Kemper forwarded two (2) additional checks made payable to the complainant and the Respondent.
“14. On April 15, 1995, Mr. Heath received a letter from Pat Mann of the Kemper Insurance Company which states that the Respondent’s lack of communication caused the company great difficulty in making payment to the client, the complainant Betty L. Howey. Since the insurance company could receive no response from the Respondent, they agreed to issue the checks direcdy to the complainant, Betty L. Howey. A carbon copy of the letter stating this position was mailed to the Respondent.
“15. The Respondent failed to communicate with the client, Betty Howey, and to communicate with her new attorney, Mr. Jack Heath. Neither Mr. Heath nor Ms. Howey had any knowledge of outstanding medical bills since Mr. Lewis would not respond or turn over the client’s files. As a result, the complainant received numerous pieces of correspondence having to do with outstanding bills. Without the information of the bills outstanding, it was not possible for Mr. Heath and Ms. Howey to submit the bills to Medicaid or Medicare for payment.
“16. The Respondent did not open a trust account until May of 1996, long after he had received the check for $4,500.00 from Kemper Insurance.
“17. John Ambrosio, a Topeka lawyer, was assigned to investigate [Complaint] No. A6622 involving the complaint of Betty Howey. The Respondent failed to cooperate with Mr. Ambrosio in that he did not promptly respond to Mr. Am brosio’s letters and failed to promptly file a response as well as meet with the investigator.
“[Complaint] No. A6682
“18. The Respondent was hired by the complainant, Jory V. Reedy, to handle an uncontested divorce. She paid him $500.00 as his attorney’s fee at their initial meeting. The Respondent met with the complainant and her spouse and prepared a Property Settlement Agreement along with a Divorce Decree. The sixty (60) day waiting period ran and the case was set for hearing. During this time Respondent did not provide the complainant with copies of documents filed with the Court or respond to her telephone calls.
“19. On May 14,1996, the complainant called the Respondent to find out if a court date had been set. This was the third call made by the complainant and the only one which was returned. The call was returned by the Respondent’s secretary. She advised Ms. Reedy her hearing date was May 23, 1996, at 8:30 a.m. before Judge Nancy [Parrish].
“20. The complainant arrived at the judge’s chambers and Mr. Lewis was not present. The complainant waited approximately one hour and fifteen minutes in the hallway at the courthouse and at 9:45 a.m. called the Respondent’s office. The complainant was unsuccessful in reaching the Respondent but was informed about thirty (30) minutes later that the Respondent would not be at the hearing. She was told the Respondent was out of town.
“21. Judge [Parrish] interceded on Ms. Reedy’s behalf and informed the complainant that she would grant the divorce if the paperwork arrived. Judge [Parrish] then telephoned and instructed Respondent’s secretary to hand deliver the paperwork to her chambers. About thirty (30) minutes later the paperwork did arrive and the divorce was granted in the absence of counsel. The complainant told Respondent’s secretary that she did not hire the Respondent to be treated in that manner. The Respondent never called the complainant to apologize or to explain his lack of appearance.
“[Complaint] No. A6704
“22. The Respondent was hired by Russell Walker in Shawnee County, Case No. 94-CR-1243, to represent him in a criminal matter.
“23. A disciplinary complaint was filed by District Court Judge, the Honorable James Buchele, concerning the Respondent’s failure to appear at two (2) show cause dockets. Respondent failed to appear at a hearing before Judge Buchele for order to show cause by Mr. Walker’s probation officer. Judge Buchele continued the matter for two weeks so that Mr. Walker could secure Respondent’s attendance. Respondent failed to appear the second time. The Respondent’s client, Mr. Walker, advised the judge that he had paid the Respondent $1,000.00 to attend the hearing and that the Respondent would not return his phone calls. He stated Respondent had assured him of his attendance.
“24. Judge Buchele was never contacted by the Respondent about a continuance of the show cause hearing nor has the Respondent been in touch with the judge concerning the failures to appear. Judge Buchele testified his office either sent out a written order or advised Respondent of the continued date of the hearing. He further testified his office had difficulty communicating with Respondent on other cases.
“25. The investigation of this case was assigned to John J. Ambrosio. Mr. Ambrosio wrote a letter to Mr. Lewis on July 16,1996, advising the Respondent that the Respondent should call Mr. Ambrosio’s secretary and set up a time for a conference. Mr. Lewis never answered this letter. On July22,1996, Mr. Ambrosio sent a second letter to Mr. Lewis advising that if Mr. Ambrosio could not set up an appointment by Wednesday at 5:00 p.m. that the Respondent would be reported as failing to cooperate in the investigation.
“26. The Office of Disciplinary Administrator sent out two (2) investigators to attempt to locate Mr. Lewis and he was finally located on July 31, 1996 at his office. Respondent said he would file a response with the office and contact the investigator, John Ambrosio, on August 1,1996. The Respondent never contacted Mr. Ambrosio, the investigator.
“27. The Office of Disciplinary Administrator finally received a response from Mr. Lewis, the Respondent, on October 30, 1996.
“[Complaint] No. A6745
“28. Rosalie Crume hired Respondent to represent her in a bankruptcy action in 1994. Between 1994 and 1996, despite his promises to represent Ms. Crume, Respondent did not return her telephone calls or make himself available to meet with her. Respondent also failed to keep Ms. Crume advised of the status of her case.
[29. does not appear in the findings of fact.]
“30. Ms. Crume contacted Joe Patton, a Topeka attorney, to represent her when Respondent failed to file her bankruptcy pleadings as discussed or meet with her. Mr. Patton was unable to represent Ms. Crume because in her words, he was unable ‘to sort out the mess’ Mr. Lewis had created by filing a Chapter 13 Bankruptcy proceeding and failing to convert it to a Chapter 7 Bankruptcy proceeding. Ms. Crume paid Respondent a total of $1,680.00 for both bankruptcies.
“31. After Ms. Crume wrote a letter of complaint, Respondent called her to his office and voiced his displeasure with her for filing a complaint. He indicated he would file the Chapter 7 Bankruptcy for her if she would dismiss her complaint.
“32. This case was assigned to a Mr. John Ambrosio for investigation. Mr. Ambrosio sent a letter on September 13, 1996, to the Respondent asking the Respondent to call the investigator before September 19,1996, to set up a time for an interview. The Respondent never responded to this letter nor set up a time for an interview. The certified letter which was sent on September 13,1996 was returned unclaimed.
“33. On October 18,1996, Mr. Ambrosio again sent a letter,to the Respondent advising the Respondent that he had set up an interview on October 25,1996, at 1:30 p.m. at Mr. Ambrosio’s office. The Respondent was informed that if he did not attend this meeting on October 25, 1996, that Mr. Ambrosio would recommend to the local committee that the Respondent had failed to cooperate. The Respondent failed to reply to the investigator by the date set and did not reply until October 30,1996 after the investigator’s report was submitted.
“[Complaint] No. A6797
“34. David Kaberline retained the Respondent on April 5, 1996, and paid the Respondent a total of $500.00 plus $61.50 for a filing fee to file a divorce action. Mr. Kaberline initially met with the Respondent on March 28, 1996, when the Respondent indicated that they should meet at a McDonald’s restaurant. A Petition for Divorce was filed on April 5, 1996, and Mr. Kaberline and his wife agreed on a settlement.
“35. Mr. Kaberline, after the. filing of the divorce petition, had no contact with the Respondent and was unable to find out from the Respondent why the case was not proceeding to hearing.
“36. On October 3,1996, Mr. Kaberline wrote a letter to the Respondent setting forth the many times during the six (6) month period the Respondent never returned any of the phone calls which were left with the Respondent’s secretary or on the Respondent’s answering machine.
“37. The Respondent failed to show up at a court date set July 30, 1996 to conclude the divorce.
“38. David Kaberline then gave Respondent until October 18,1996 to complete the divorce or refund the $500100 which had been paid for the services. The Kaberline divorce was set to be dismissed on November 6,1996 for lack of prosecution.
“39. After the complaint was filed by Mr. Kaberline, Jack Ford, an investigator with the Office of Disciplinary Administrator, contacted the Respondent and it was not until this contact that the Respondent finally concluded the Kaberline divorce.
“40. The Respondent never told Mr. Kaberline that he needed to attend a divorce workshop to conclude the divorce. Mr. Kaberline found out this information by making his own inquiries. ■
“[Complaint] No. A6843
“41. Gerald Davis paid the Respondent $500,00 to help him get his grandson, Fred A. Davis, II, out of the custody of SRS.
“42. Mr. Davis met Mr. Lewis, the Respondent, at a track meet and told Mr. Lewis that Davis had arranged to make an appointment with Nancy Freund to see about taking legal action against SRS.
“43. The Respondent said that he could represent Mr. Davis a lot cheaper and that he would only charge about $500.00 and Davis agreed to meet Respondent at his office on September 11,1996. It was at that meeting that Davis paid Lewis $500.00
“44. The Respondent said that he would get right to work on the ease and Davis left. After a month, Mr. Davis had heard nothing from the Respondent and began calling him almost daily, leaving his number on the Respondent’s voice mail.
“45. After numerous attempt[s], the Respondent finally did call Mr. Davis and promise to start on the case the next day and to tell Mr. Davis the status at the next meeting.
“46. After this promise, Mr. Davis went to Mr. Lewis’ office several times but found no one there. Davis left numerous messages that went unanswered. On October 14, 1996, Davis wrote a letter to the Respondent which was returned ‘unclaimed.’
“47. Mr. Davis had to hire attorney Cathleen Downey on November 18,1996 and pay this attorney $500.00. Ms. Downey was able to resolve the case in one (1) week on November 25,1996.
“48. Mr. Davis sued the Respondent in Small Claims Court to attempt to recover the $500.00. Mr. Lewis subsequently returned $450.00 of the fee after he was served by the sheriff.
“49. The disciplinary case was assigned to investigator Thomas Stratton. Mr. Stratton sent a letter to the Respondent on December 24,1996 asking for a written response to the complaint and reminding the Respondent that he had not responded to the December 4, 1996 letter from the Office of Disciplinary Administrator.
“50. On January 24,1997, Mr. Stratton sent a follow-up letter to the Respondent reminding the Respondent that he had contacted the Respondent by letter on December 24,1996, and by telephone message on January 7,1997. This letter urged the Respondent to cooperate in the investigation.
“51. The Respondent left a message on January 28, 1997 for Mr. Stratton to return his telephone call. Mr. Stratton returned that call later in the day on January 28, 1997, but heard nothing further from the Respondent.
“52. Again, on February 3,1997, Mr. Stratton left a message for the Respondent that Mr. Stratton needed to talk to the Respondent prior to the local committee meeting on February 4, 1997. This call was unanswered. The Respondent failed to cooperate in this investigation.
“[Complaint] No. A6999
“53. Michael L. Lewis was attorney of record for David Amo, petitioner, in Case No. 96-D-733 in Shawnee County, Kansas. The case is captioned In the Matter of the Marriage of Arno.
“54. A Petition For Divorce was filed on August 2, Í996 and a filing fee of $61.50 was paid at that time.
“55. On August 5, 1996, a summons was issued to the Respondent and was later returned, ‘no service.’
“56. Recause there was no service in the case, the court’s Administrative Assistant, Dana Cole, called the Respondent with Mrs. Amo’s address. Judge Leuenberger’s Administrative Assistant left two (2) messages at the Respondent’s office informing the Respondent of the correct address for the opposing party so that the matter could proceed after proper service.
“57. On February 19,1997, the Arno divorce case was continued for publication service.
“58. On May 21,1997, Mr. Amo appeared but the Respondent failed to appear. At that hearing, Mr. Amo told the court that he had made numerous efforts to contact the Respondent but that the Respondent would not return his telephone calls.
“59. Mr. Amo also, on at least one (1) occasion, went to Respondent’s office and was informed that Respondent was not there and they did not know when he would return. Mr. Amo could never reach the Respondent and the case was again continued until June 11, 1997, to give Mr. Amo an opportunity to advise the court of the status of the divorce.
“60. On May 28, 1997, Judge Leuenberger filed a complaint [with] the Office of Disciplinary Administrator. The investigation was assigned to Jack Ford. On June 2, 1997, a letter was sent from the Office of Disciplinary Administrator advising die Respondent that a complaint had been filed and docketed as [Complaint] No. A6999. The Respondent was requested to file his response within seven (7) days of the date of that letter.
“61. On September 4,1997, investigator Ford sent a letter to the Respondent advising that he had not received his response to [Complaint] No. A6997 or A6999. On September 15,1997, the Respondent advised that he was represented by attorneys Arthur Glassman and William Logan and that they were to file the responses. William Logan and Arthur Glassman had withdrawn from their representation of the Respondent on September 9, 1997. A copy of this notice was mailed to the Respondent at his home address. Mr. Logan states in his letter of September 18,1997 to the Disciplinaiy Administrator that neither that notice nor the formal letter of withdrawal sent to the Respondent’s office address was returned.
“62. Mr. Ford sent a copy of the September 18,1997 letter to the Respondent advising the Respondent that he was no longer represented and that he should respond to the complaint. The Respondent failed to respond to Mr. Ford’s letter of October 1,1997, and failed to cooperate in the investigation.
“[Complaint] No. A6997
“63. Laura and Russell Cobb were injured in an automobile accident in August 1994. Russell Cobb suffered great bodily injury in the accident and was still in the hospital when Mrs. Cobb was given a leave from the hospital and went to Shoney’s restaurant in Topeka, Kansas.
“64. At the Shoney’s restaurant, Laura Cobb was approached by the Respondent and the Respondent inquired as to what was happening. Mrs. Cobb told Mr. Lewis that she had hired Dan Lyldns to handle the personal injury matter resulting from the automobile accident. Respondent told Laura Cobb that she should fire Mr. Lyldns since he was an ambulance chaser and that she should hire the Re spondent and that the Respondent would recover $1,000,000.00 for the Cobbs. He dictated letters terminating Mr. Lyldns and then had Mrs. Cobb sign a contingency fee contract with him.
“65. At the time of his discharge, Mr. Lykins had been able to obtain the policy limits of the other driver’s insurance company, Farm Bureau, in the amount of $100,000.00 for the claimants. He was willing to only charge the Cobbs an hourly rate fee [for a total] amount of $2,500.00 for his work on the file.
“66. Upon being hired by the Cobbs, the Respondent did nothing on the case other [than] finalize the paperwork with the insurance company to settle for the policy limits of $100,000.00. Respondent then took one-third {Vs) of the settlement amount and did nothing further.
“67. The Cobbs filed suit against the Respondent in Case No. 96-CV-256, Cobb vs. Michael L. Lewis. That case was assigned to Judge Marion Chipman because all of the Shawnee County judges recused themselves in the Respondent’s case.
“68. During the course of the litigation the Respondent failed to respond to discovery requests or to appear for hearings and allowed a default judgment to be taken against him on March 20,1997.
“69. A default judgment was entered against Respondent in the amount of $2,273,333.33. The court found that the Respondent had breached his fee agreement contract and found that the Cobbs were damaged in the amount of $33,333.33 since that fee was excessive when Mr. Lykins had agreed to do the work for approximately $2,500.00.
“70. Mr. Lykins testified that he was hired on a contingency basis but he knew that the policy limits of the driver who was at fault were only $100,000.00. Because of the catastrophic damage to Mr. Cobb, he agreed to take the case on an hourly basis and his fee was approximately $2,500.00 for settling for the policy limits. Mr. Lykins took the case on an hourly basis because of the injuries to Mr. Cobb and the fact that a contingency fee recovery of one-third {Vs) would have left very little for the Cobbs to recover.
“71. Mr. Lykins testified he had also contacted an expert to check the crash worthiness of the Cobb vehicle to find any possible defects which may have contributed to Mr. Cobb’s injury. Mr. Lykins advised the Cobbs that he would enter into a contingency fee arrangement with them in the products case and assume the risk in that case for his fee. Mr. Lykins was also looking to other means of recovery for Mr. Cobb’s loss of wages.
“72. Upon his hire, Respondent told the Cobbs to get rid of the car and said that Mr. Lykins was incompetent and there was no reason to keep the automobile. The Cobbs let the car go for storage fees. Mr. Lyldns testified that the car should have been retained for the expert to check the crash worthiness of the vehicle.
“73. The Cobbs were never successful in being able to contact the Respondent although they made numerous attempts to find out what was going on with their case. The Respondent told Laura Cobb that the $100,000.00 was a drop in the bucket and that he would do further work on the personal injury case but the Respondent never did anything further. Mrs. Cobb even attempted to call the Respondent’s wife to try to locate the Respondent to gather information about the case when she could not find the Respondent.
“74. The court in 96-CV-256 found that the Respondent was negligent in handling the case and awarded damages in the amount previously stated. The court ruled that the Cobbs were damaged in the amount of $740,000.00 for medical bills; $1,000,000.00 for loss of wages; $250,000.00 for the plaintiff’s pain and suffering and $250,000.00 for the plaintiff’s loss of consortium. In addition, the previously mentioned sum of $33,333.33 was awarded in attorney’s fees.
“75. Judge Chipman found that the Respondent’s conduct in ‘pirating plaintiff’s case away from capable counsel and taking a full one-third (%) recovery when the work had been practically done by previous counsel’ was reprehensible conduct and the court ordered that the transcript of the hearing be delivered to the Office of Disciplinary Administrator.
“76. The case was assigned to Jack Ford for investigation. The Respondent ignored the letters from the Office of Disciplinary Administrator and then stated that counsel was to represent him and file his response. Counsel had previously withdrawn and notice was sent to Mr. Lewis. Mr. Ford gave Lewis a deadline of October 17, 1997 for his response but the Respondent failed to respond even though he was personally served with the letter giving him the October 17,1997 deadline. Respondent failed to cooperate with this investigation.”
The panel concluded that respondent’s actions violated MRPC 1.1, 1.3, 1.4, 1.5, 1.15, 1.16, 7.3, and 8.4(a), (c), (d), and (g), and Supreme Court Rule 207. The panel unanimously recommended that respondent be disbarred pursuant to Supreme Court Rule 203(a)(1) (1997 Kan. Ct. R. Annot. 201).
In making its recommendation, the panel found no mitigating circumstances. The panel found the following aggravating factors:
“1. Respondent has been informally admonished on three previous occasions for lack of competence, diligence, and improper handling of client’s funds in a probate and wrongful death matter; for lack of diligence relative to his action in filing a divorce action; and for failure to provide a client with documents and failing to protect his client’s interests.
“2. Respondent’s actions in the present cases and his prior disciplinary proceedings evidence a continuing pattern of neglect and a continuing pattern of failure to communicate with his clients and the courts and multiple offenses.
“3. Respondent’s actions in the [Complaint] Numbers A6997 and A6843 evidence dishonest and selfish motive.
“4. Respondent failed to cooperate with the various investigators assigned to investigate his complaints.
“5. Respondent failed to appear at the disciplinary hearing or file an answer to the complaints. He seemingly refuses to acknowledge the wrongful nature of his conduct.
“6. The panel is advised Respondent told the Kansas Supreme Court in proceedings before it in December of 1997 to have him temporarily suspended that ‘I’m looking forward to my day before the hearing panel so that I can express my views and I expect to be exonerated.’ Despite the assurances to the Supreme Court, Respondent failed to appear for the hearing. The panel believes these statements made by Respondent to the Kansas Supreme Court during the disciplinary process were false.
“7. The complainants in the above-referenced cases were vulnerable.
“8. Respondent has practiced law for 23 years and has substantial experience in the practice of law.
"9. Respondent did not refund monies to his clients in all cases. Refunds in two of the cases were not made until legal or disciplinary action had been instituted.”
The panel elaborated on its reasoning in recommending disbarment:
“Testimony by the Shawnee County district judges at the hearing established the judges in Shawnee County have been extremely lenient towards Respondent concerning his repeated missed court appearances and lack of diligence on his files.
“Respondent’s conduct with respect to representation of his clients in the cases before the panel is reprehensible. One after another, the complainants each described the same scenario of events of unanswered messages on answering machines and neglect over a significant time period. Respondent’s conduct in attempting to sneak out the back door of his law offices to avoid his anxious clients and leaving messages posted on the door at their scheduled appointment times without meeting them cannot be condoned. Most troubling to the panel, however, is the Respondent’s ‘piracy’ of clients from competent attorneys and his failure to adequately represent the clients after stealing them away from other counsel. His motives were selfish and for purely personal gain. These actions, together with his misrepresentations to the Kansas Supreme Court about his upcoming appearance before the panel, and his failure to appear at the hearing make it clear to the panel that the Respondent is unfit to practice law.”
On January 8, 1998, based upon its findings and the failure of respondent to appear for the hearing, the Kansas Board for Discipline of Attorneys filed a motion requesting this court to compel respondent to appear before this court and show cause why he should not be temporarily suspended pending the final hearing before this court. The panel found that respondent had violated the Model Rules of Professional Conduct as charged and that he failed to appear before the panel on January 6, 1998. A second show cause order was issued. Respondent again appeared before this court on January 23, 1998, and again denied that he had vio lated the Model Rules. He stated that his failure to appear before the panel was due to not receiving notice of the hearing and, on that date, he was attending his aunt’s funeral. On February 5,1998, this court entered an order temporarily suspending respondent pending the final disciplinary hearing before this court.
Respondent filed exceptions to the panel report. He first claimed that he did not receive notice of the January 6 hearing before the panel. He further contended that if he had been notified, he would have appeared and refuted all charges. He prays that this court grant him a rehearing to allow him to present evidence to refute the panel’s findings. He further takes issue with the panel’s recommendation that he be disbarred. This court responded to his filing of exceptions to the panel report by order dated April 20, 1998, limiting oral argument before this court to whether this matter should be remanded to the panel for rehearing or, in the alternative, whether the recommended discipline should be imposed.
At oral argument, respondent reiterated that he did not receive notice of the January 6,1998, panel hearing and that if he had been notified, he would have appeared. Respondent’s argument raises an important question and one that is fundamental to the validity of the disciplinary proceedings. However, for several reasons, respondent’s argument has no merit. First, the Disciplinary Administrator served respondent with notice of the hearing before the panel by both regular and certified mail. Respondent failed to claim the certified mailing, and it was returned before the January 6, 1998, panel hearing. The regular mailing was returned after the hearing and marked “return to sender.” Service by mail is complete upon mailing. Supreme Court Rule 224(b) (1997 Kan. Ct. R. An-not. 253); K.S.A. 60-205(b).
Second, at the first show cause hearing on December 9, 1997, in respondent’s presence, Deputy Disciplinary Administrator Frank Diehl, in his oral argument to the court, stated that the complaints against respondent were originally set for hearing in April 1997 and were continued at that time by respondent and reset for hearing before the panel on January 6,1998. He concluded his comments to the court indicating his satisfaction that this matter would be resolved very shortly by the panel.
After a careful review of the record and oral arguments, we concur in the findings and conclusions of the hearing panel; however, a majority of the court finds that respondent should be indefinitely suspended from the practice of law and not disbarred.
It Is Therefore Ordered that Michael L. Lewis be and he is hereby disciplined by indefinite suspension for his violations of the Model Rules of Professional Conduct.
It Is Further Ordered that Michael L. Lewis 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 Ordered 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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The opinion of the court was delivered by
Beier, J.:
This probate appeal requires us to determine the first-impression issue of whether a contract containing an attorney fees clause, attached to a creditor s petition for allowance and classification of a demand against an estate, constitutes an adequate and timely claim for such fees;
The district court held the petition in this case properly included a claim for attorney fees. The Court of Appeals reversed in In re Estate of Wolf, 32 Kan. App. 2d 1247, 96 P.3d 1110 (2004). This court granted the creditors petition for review under K.S.A. 20-3018(b).
Marino and Wolf, Inc. (M&W), the creditor, was an insurance brokerage company owned by Francis J. “Frank” Wolf and Jasper Marino. Wolf and Marino were among the parties to an Option Agreement, which contained a provision stating that the prevailing party in any action to enforce the terms of the agreement would be entitled to recover attorney fees and other costs and expenses.
Wolf died on September 24, 1998. After filing a petition for probate of a lost will in Wyandotte County District Court, his wife, Nancy J. Wolf, was named executrix. Among the assets identified in the estate’s inventory and valuation were 333 shares of M&W stock.
Nancy issued a notice to creditors, and M&W filed two petitions for allowance and classification of demands within the 4-month limitations period provided in the nonclaim statute, K.S.A. 59-2239. In one of the petitions, M&W sought to “purchase 333 shares of stock in Petitioner owned by the decedent . . . pursuant to the terms and conditions of a certain Option Agreement, as amended, a copy of which is attached hereto as Exhibit ‘A’ at the price of $625.00 per share.” Copies of the Option Agreement and an amendment to the Option Agreement were attached to the petition. No mention of attorney fees was included in the petition itself.
Nancy disputed the validity of the Option Agreement and asserted a right to a setoff for all monies and commissions owed by M&W to Frank Wolf at the time of his death. After several years of litigation between the parties, M&W ultimately obtained summary judgment in its favor, and the district court ordered Nancy to convey the stock in exchange for payment of $625 per share. Initially, Nancy appealed the district court’s summary judgment in favor of M&W, but she later voluntarily dismissed that appeal.
After M&W advised Nancy it would seek attorney fees under the terms of the Option Agreement, Nancy filed a petition for declaratory relief in probate court. Nancy argued M&W’s attorney fees claim was barred by the 4-month statute of limitations in K.S.A. 59-2239, the nonclaim statute, because it had not been included in M&W’s petition.
M&W then filed a “Bill of Costs and Expenses of Suit,” asserting that the Option Agreement entitled it as the prevailing party in the stock option dispute to recover attorney fees, costs, and expenses incurred in litigating its demand. M&W claimed $143,659.41 in attorney fees and expenses and requested that the amount be offset against the price of the stock. Although the district court reduced the amount of attorney fees awarded by 1 percent, it otherwise allowed M&W to recover its full fees and expenses.
A majority of the reviewing Court of Appeals’ panel reversed the district court; Judge Tom Malone dissented. See 32 Kan. App. 2d at 1253.
The Court of Appeals majority first considered and rejected Nancy’s contention that the district court lacked subject matter jurisdiction to award M&W attorney fees. 32 Kan. App. 2d at 1250-51. It observed that trial courts clearly have subject matter jurisdiction in probate proceedings to determine the validity of claims and demands made against an estate. See K.S.A. 59-2204; K.S.A. 2004 Supp. 59-2237(b). The majority identified the issue before it as whether the district court exceeded its statutory authority to allow certain claims to be assessed against the estate. It concluded the district court lacked authority to allow M&W’s claim for attorney fees because “M&W’s written demand made no explicit mention of attorney fees in its timely filing . . . [and] M&W could have amended its demand to include the contingent attorney fee in a timely manner under the nonclaim statute.” 32 Kan. App. 2d at 1253.
In his dissent, Judge Malone reasoned that M&W’s petition substantially complied with K.S.A. 59-2202 and put Nancy on notice of the contingent claim for attorney fees. The Option Agreement was M&W’s claim, in Judge Malone’s view, and Nancy was at all times represented by legal counsel who could have understood the exact nature of M&W’s claim by reading die contract. See 32 Kan. App. 2d at 1253-54 (Malone, J., dissenting).
Our standard of review on appeal is unlimited because the question of whether M&W’s attorney fees claim was adequately and timely pled requires statutory interpretation. See Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003); Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000).
M&W’s attorney fees claim is based on Section 7.13 of the Option Agreement, which stated:
“7.13 Attorneys’ Fees. If any party to this Agreement brings an action to enforce the terms hereof or to declare rights hereunder, the prevailing party in the final adjudication of any such action, at trial or on appeal shall be entitled to costs and expenses of suit, including without limitation actual attorneys’ fees borne by such party, to be paid by the losing party as fixed by the Court.”
M&W contends that merely attaching the Option Agreement to its petition was sufficient to comply with the nonclaim statute, K.S.A. 59-2239. K.S.A. 59-2239(1) reads in relevant part:
“All demands . . . against a decedent’s estate, whether due or to become due, whether absolute or contingent, . . . and including the individual demands of executors and administrators, not exhibited as required by this act within four months after the date of the first published notice to creditors . . . shall be barred from payment . . . .” (Emphasis added.)
In addition, K.S.A. 59-2202 prescribes the contents of petitions in probate cases:
“Every petition in a probate proceeding shall state: (1) The name, residence, and address of the petitioner; (2) the interest of the petitioner and his or her right to apply to the court; (3) the jurisdictional facts; (4) the facts, in ordinary and concise language, showing that the petitioner is entitled to the relief sought; and (5) a prayer for relief.”
M&W correctly asserts that this court has held the legislature did not intend for claimants to lose their rights in probate proceedings for failure to file pleadings in strict compliance with a particular form. See First National Bank of Topeka v. Hiatt, 201 Kan. 50, 56, 439 P.2d 373 (1968); see also K.S.A. 59-2201 (no defect in form to impair substantial rights).
We also note that the final adjudication of the stock option dispute did not occur until Nancy, as executrix for the estate, dismissed the estate’s appeal. M&W’s right to recover attorney fees did not actually arise until that time. However, there can be little serious question that the attorney fees claim qualified as contingent from the moment M&W was forced to litigate over the Option Agreement. If M&W prevailed in the litigation, the plain language of the Option Agreement would allow it to recover its “costs and expenses of suit, including without limitation actual attorneys’ fees borne,” and K.S.A. 59-2239 required this contingent claim to be pled in M&W’s probate petition.
M&W relies on In re Estate of Moe, 11 Kan. App. 2d 244, 719 P.2d 7, rev’d on other grounds, 240 Kan. 242, 729 P.2d 447 (1986), and In re Estate of Ray, 180 Kan. 634, 306 P.2d 190 (1957), to support its argument that attaching the Option Agreement containing the attorney fees provision satisfied its pleading obligations under the Kansas Probate Code, K.S.A. 59-101 et seq.
In Estate of Moe, the claimant filed a petition against the estate to recover payment for services under a theory of quantum meruit. The district court found instead that the decedent orally promised to will certain property to the claimant, and it ordered specific performance. The Court of Appeals affirmed, concluding the petition gave adequate notice of the facts giving rise to a cause of action on the oral contract to will. 11 Kan. App. 2d at 249-50. The Court of Appeals stated: “[I]t has long been held that a petition for allowance of demand in probate proceedings is to be liberally construed.” 11 Kan. App. 2d at 250.
In Estate of Ray, the district court found the probate claimant could no longer be awarded tire decedent’s home on her claim for breach of an oral contract to transfer the home because the property was no longer part of the estate. However, the court construed the petition liberally to allow the claimant to recover in quantum meruit. See 180 Kan. at 636-37.
M&W argues that, like the claimants in Moe and Ray, it should be able to rely on a liberal construction of its probate petition and, specifically, that the attachment of the Option Agreement to its petition should be sufficient to constitute pleading of its contingent claim for attorney fees and costs. It asserts that the language of its petition should have been read to include a demand for enforcement of the entire Option Agreement. We disagree. The petition explicitly referenced only the stock purchase provided for in the agreement.
In addition, both Estate of Moe and Estate of Ray are distinguishable. In each case, the label of the cause of action changed but the reason to allow recoveiy from the estate’s assets and the magnitude of that recovery remained the same. All of the facts justifying any recovery appeared on the face of each petition. Here, there were actually two separate and distinct claims, the noncontingent claim for purchase of the stock and the contingent claim under the agreement’s attorney fees provision. The reasons they would affect estate assets and the size and character of their impacts were distinct. The facts justifying only one of the claims appeared on the face of the petition.
In In re Estate of Reynolds, 266 Kan. 449, 455, 970 P.2d 537 (1998) (quoting In re Estate of Watson, 21 Kan. App. 2d 133, Syl. ¶ 5, 896 P.2d 405 [1995]), this court stated:
“ ‘K.S.A. 59-2239 is a special statute of limitations. The words ‘all demands’ are all-inclusive and include claims and demands of every type and character against a decedent’s estate except for those particular cases where the statute expressly provides otherwise. A party seeking to remove something from a decedent’s estate must comply with the nonclaim statute in the absence of an express statutory exception such as set forth in K.S.A. 59-2239(2).’ ” (Emphasis added.)
Further, in Young v. Wheeler, 234 Kan. 845, 851, 676 P.2d 748 (1984) (quoting Atkinson, Law of Wills § 127, p. 691 [2d ed. 1953]), this court recognized that legislatures and courts in general have thought “ ‘ “it is better policy to deny exceptions to the bar of the nonclaim statute rather than to impair its final effect by allowing exceptions, however meritorious.” ’ ” The plain language of the nonclaim statute also is emphasized in 3 Bartlett, Kansas Probate Law and Practice § 1316 (rev. ed. 1953):
“The language of the nonclaim statute is clear, unambiguous, and comprehensive. Words more significant to express every demand to which a personal representative can or ought to respond, or which can charge the assets in his hands subject to administration, or more expressive of every liability, resting upon the decedent, could not have been employed.”
Having failed to satisfy the requirements of the nonclaim statute, M&W is now barred from collecting its attorney fees, costs, and expenses under the Kansas Probate Code.
In the alternative, M&W argues that its pleading was adequate when measured against the requirements of the Kansas Code of Civil Procedure, K.S.A. 60-101 et seq.
K.S.A. 2004 Supp. 60-209(h) provides:
“Whenever a claim, defense or counterclaim is founded upon a written instrument, the same may be pleaded by reasonably identifying the same and stating the substance thereof or it may be recited at length in the pleading or a copy may be attached to the pleading as an exhibit.” (Emphasis added.)
K.S.A. 60-210(c) provides: “Statements in a pleading may be adopted by reference in a different part of the same pleading or in another pleading or in any motion. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.” (Emphasis added.)
M&W argues that K.S.A. 2004 Supp. 60-209(h) was satisfied because M&W’s claim against the estate was founded upon a written statement, the Option Agreement, which was identified in the petition and attached to the petition. M&W further contends that pursuant to K.S.A. 60-210(c), the Option Agreement was a part of the petition for “all purposes,” including enforcement of the provision allowing M&W to recover its attorney fees and expenses.
“General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.” In re Estate of Antonopoulos, 268 Kan. 178, 189, 993 P.2d 637 (1999).
We hold that neither K.S.A. 2004 Supp. 60-209(h) nor K.S.A. 60-210(c) apply in this case because the probate code has its own specific pleading statute, K.S.A. 59-2202, and makes clear in the nonclaim statute, K.S.A. 59-2239, that contingent claims must be set forth in a creditor’s petition. Unlike the civil procedure code, the more specific probate code does not contain a provision permitting exhibits to pleadings to be considered “a part thereof for all purposes.” We also see nothing in either the probate code or the civil procedure code that would lead us to believe the legislature intended the specific probate statute to be controlled by the general civil procedure statute.
Judgment of the Court of Appeals is affirmed; judgment of the district court is reversed.
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The opinion of the court was delivered by
Nuss, J.:
The district court of Ellis County found Jarad A. Jones guilty of driving or attempting to drive a vehicle while having a blood alcohol level greater than .08 in violation of K.S.A. 8-1567(a)(2). Jones appealed, claiming that the district court erred by denying his motion to suppress an alleged involuntary preliminary breath test (PBT) and the resultant blood test. The Court of Appeals held that Jones consented to the PBT and affirmed the district court in State v. Jones, No. 89,658, unpublished opinion filed October. 31, 2003. This court granted Jones’ petition for review under K.S.A. 20-3018(b).
According to the petition for review, the sole issue on appeal is whether Jones gave voluntary, knowing, and intelligent consent to the search of his deep lung air through the use of a PBT. Under these facts presented, we hold that the State failed to prove that he did. Accordingly, we reverse the Court of Appeals and the district court.
FACTS
Jones and the State submitted the case to the district court on stipulated facts. The following are relevant to the issue on appeal:
“5. That on August 16, 2001, at approximately 11:23 p.m., Officer Mark Windholz of the Hays Police Department responded to work a vehicle accident in the 1400 Block of Ellis Avenue.
“6. Officer Windholz made contact with tire driver, Jarad Jones, and observed that the driver had a cut on the side of his head [and] was bleeding, however, Jones refused treatment from the EMS personnel and was released.
“7. Jones confirmed that he was the driver of the vehicle and that nobody else was with him when the accident occurred.
“8. Jones stated that he did not remember exactly what happened to cause him to have the accident, however, Jones did state he felt very tired before the accident.
“9. Officer Windholz conducted no field sobriety testing other than a preliminary breath test [PBT].
“10. Officer Windholz properly conducted his 15 minute deprivation period and properly conducted the [PBT] on defendant.
“11. The parties stipulate [Jones] was not free to leave at this time, that Officer Windholz was detaining him as part of his investigation, that Officer Windholz read [Jones] the statutory warnings under K.S.A. 8-1012, and it was not until after reading [Jones] the statutory warnings that [Jones] did submit to tire preliminary breath test.
“12. That a preliminary breath test requires a sample of deep lung air which can only be extracted from defendant after defendant forcibly blows air into the PBT device for a period of three to five seconds.
“13. The parties stipulate that deep lung air is not normally held out to the public and must be extracted by forcing the individual to blow into the PBT device for between three to five seconds.
“14. The PBT test result indicated a breath alcohol greater than 0.08 and Officer Windholz then placed [Jones] under arrest for driving under the influence.
“15. The parties stipulate and agree that absent die preliminary breath test results, the Officer did not have probable cause to believe that [Jones] was driving under the influence, a violation of K.S.A. 8-1567, further, the parties [stipulate] that if the preliminaiy breadi test search did not violate [Jones’] Fourth Amendment rights, that die Officer did possess probable cause to place [Jones] under arrest for driving under the influence.
“16. After being arrested, [Jones] was transported by Officer Windholz to Hays Medical Center where he submitted to a blood test.
“17. The parties stipulate that Officer Windholz complied with Kansas Department of Health and Environment protocol, the Implied Consent Law as prescribed in K.S.A. 8-1001 et seq., and diat the blood sample was properly drawn and submitted to die KBI Lab for testing.
“18. The parties further stipulate that the blood test sample was taken witiiin two hours of the last time [Jones] drove or attempted to drive a vehicle and revealed a blood alcohol content of 0.14 grams for 100 milliliters of blood.”
On July 1, 2002, Jones filed a motion to suppress the results of the PBT and the subsequent blood test. He asserted that he did not voluntarily, knowingly, or intelligently give consent for the PBT and that his Fourth Amendment rights were violated. On July 16, 2002, the district court concluded that, based upon the stipulated facts and the law, the PBT results were admissible and the arrest was lawful, which led to a finding that Jones was guilty of driving under the influence in violation of K.S.A. 8-1567(a)(2).
Jones appealed to the Court of Appeals, which held Jones had given consent when he stipulated that Officer Windholz had complied with the statutory procedure set forth in K.S.A. 8-1012. It upheld the district court.
ANALYSIS
Issue: Did Jones give voluntary, knowing, and intelligent consent to the search of his deep lung air through the use of a PBTP Generally, when reviewing a motion to suppress evidence, an appellate court reviews the factual underpinnings of a district court’s decision “ ‘by a substantial competent evidence standard and the ultimate legal conclusion drawn from those facts by a de novo standard. An appellate court does not reweigh tire evidence. The ultimate determination of the suppression of the evidence is a legal question requiring independent appellate review.’ ” State v. Horn, 278 Kan. 24, 30, 91 P.3d 517 (2004) (quoting State v. Men dez, 275 Kan. 412, 416, 66 P.3d 811 [2003]). In this case, however, where submitted on stipulated facts, we only examine the question of whether to suppress, a question of law over which this court has unlimited review. Moreover, the issue on appeal raises questions of statutory interpretation upon which our review also is unlimited. State v. Gray, 270 Kan. 793, 796, 18 P.3d 962 (2001).
We begin our review of the propriety of the denial of the motion to suppress by examining K.S.A. 8-1012, the statutory basis for administering the PBT. It provides:
“A law enforcement officer may request a person who is operating or attempting to operate a vehicle within this state to submit to a preliminary screening test of the person’s breath to determine the alcohol concentration of the person’s breath if the officer has reasonable grounds to believe that the person: (a) Has alcohol in the person’s body; (b) has committed a traffic infraction; or (c) has been involved in a vehicle accident or collision. At the time the test is requested, the person shall be given oral notice that: (1) There is no right to consult with an attorney regarding whether to submit to testing; (2) refusal to submit to testing is a traffic infraction; and (3) further testing may be required after the preliminary screening test. Failure to provide the notice shall not be an issue or defense in any action. The law enforcement officer then shall request the person to submit to the test. Refusal to take and complete the test as requested is a traffic infraction. If the person submits to the test, the results shall be used for the purpose of assisting law enforcement officers in determining whether an arrest should be made and whether to request the tests authorized by K.S.A. 8-1001 and amendments thereto. A law enforcement officer may arrest a person based in whole or in part upon the results of a preliminary screening test. Such results shall not be admissible in any civil or criminal action except to aid the court or hearing officer in determining a challenge to the validity of the arrest or the validity of the request to submit to a test pursuant to K.S.A. 8-1001 and amendments there. Following the preliminary screening test, additional tests may be requested pursuant to K.S.A. 8-1001 and amendments thereto.”
Jones concedes that the language of the statute expressly authorized Officer Windholz to request him to perform a PBT because he had been involved in a vehicle accident. He disputed the admissibility of the PBT results, however, for the reasons set forth in his brief to the Court of Appeals. First, he asserted that the PBT requires him to provide deep lung air which, because it infringes upon his privacy, constitutes a search that is subject to the protections of the Fourth Amendment to the United States Constitution. Second, since the PBT is a search, it cannot be administered absent probable cause or his consent. Third, his mere involvement in a vehicle accident does not, without more, constitute probable cause to believe he was operating the vehicle under the influence of alcohol; thus, this provision in K.S.A. 8-1012 justifying the search is unconstitutional. See Gross v. Kansas Dept. of Revenue, 26 Kan. App. 2d 847, 849, 994 P.2d 666, rev. denied 269 Kan. 932 (2000) (Probable cause is synonymous with the statutory term “reasonable grounds.”). Fourth, his “consent,” if any, was involuntary. If he refused, he would have been issued a traffic citation per the statute. Moreover, the State failed to demonstrate he did more than merely acquiesce to authority.
We hold that (1) taking Jones’ deep lung air is a search requiring, under these circumstances, Jones’ consent; (2) the State did not meet its burden of estabhshing that Jones’ consent to this search was voluntarily, knowingly, and intelligently given; and (3) the State did not meet its burden of establishing that Jones’ consent was impliedly given. Since the parties stipulate that absent the PBT results Officer Windholz did not have probable cause to believe Jones was driving under the influence, and since addressing that factual stipulation is unnecessary to resolving this appeal, we will not consider Jones’ accompanying argument, i.e., whether parts of K.S.A. 8-1012 are unconstitutional.
Search
The Fourth Amendment to the United States Constitution provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shah not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
A “search” occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A “seizure” of property occurs when there is some meaningful interference with an individual’s possessoiy interests in that property. United States v. Jacobson, 466 U.S. 109, 113, 80 L. Ed. 2d 85, 104 S. Ct. 1652 (1984).
In Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616-17, 103 L. Ed. 2d 639, 109 S. Ct. 1402 (1989), the Supreme Court held: “Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis, . . . implicates similar concerns about bodily integrity and, like the blood-alcohol test . . . considered in Schmerber [v. California, 384 U.S. 757, 16 L. Ed. 2d 908, 86 S. Ct. 1826 (1966)], should also be deemed a search. [Citations omitted.]”
The parties stipulated that a PBT requires a sample of deep lung air which can only be extracted from a person after the person forcibly blows air into the PBT device for a period of 3 to 5 seconds and that deep lung air is “not normally held out to the public.” Jones notes that there are devices used in other states that detect the presence of alcohol by holding the device in the area where a person is breathing normally. It would be overbroad to declare that all PBT’s are searches. It is clear, however, that the particular PBT used on Jones tested his deep lung breath for chemical analysis and, under Skinner, was a search subject to the strictures of the Fourth Amendment.
Express Consent
Unreasonable searches and seizures are constitutionally prohibited and, unless a search falls within one of a few exceptions, a warrantless search, as in the instant case, is per se unreasonable. Horn, 278 Kan. at 31 (citing Mendez, 275 Kan. at 420-21). Moreover, the exclusionary rule prohibits the admission of the “fruits” of illegally seized evidence, i.e., any information, object, or testimony uncovered or obtained, directly or indirectly, as a result of the illegally seized evidence or any leads obtained therefrom. Horn, 278 Kan. at 31 (citing Mendez, 275 Kan. at 421).
While a warrantless search was performed in the instant case, the State argues that the search was valid under the consent exception to the search warrant requirement. See Mendez, 275 Kan. at 421. Jones responds that he did not voluntarily give his consent to the search. While he may waive the requirement of a search warrant or may consent to a search without a warrant, the State has the burden to show such consent or waiver is voluntarily, intelligently, and knowingly given. See State v. Rexroat, 266 Kan. 50, 54-55, 966 P.2d 666 (1998). The State must prove voluntariness by a preponderance of the evidence, and the existence and voluntariness of a consent to search and seizure is a question of fact that the trier of fact must decide in light of the totality of the circumstances. 266 Kan. at 54-55. See Ohio v. Robinette, 519 U.S. 33, 39-40, 136 L. Ed. 2d 347, 117 S. Ct. 417 (1996).
While Rexroat also stated that the “voluntariness of consent” determination will not be overturned on appeal unless clearly erroneous, that particular language of review is disapproved; questions of fact are reviewed in Kansas under a substantial competent evidence standard. As support for its statement, Rexroat had cited cases whose predecessors stemmed from a case in the Tenth Circuit Court of Appeals, White v. United States, 444 F.2d 724, 726 (10th Cir. 1971), which correctly used the federal appellate standard for factual review, i.e., clearly erroneous. See Fed. R. Civ. Proc. 52.
The instant case was submitted on stipulated facts, but the trial court made no findings on the specific issue of consent. Whether the facts support a voluntary consent is therefore for our determination.
The Court of Appeals in this case found that Jones’ consent could be inferred from his stipulation of compliance with K.S.A. 8-1012 and that Officer Windholz’ giving notice of the PBT warning advisories did not make Jones’ consent involuntary. Jones, Slip op. at 4. We disagree with this finding of inferred consent through K.S.A. 8-1012. Our disagreement renders the Court of Appeals’ latter finding moot.
The stipulated facts provide little detail about the events between the request for Jones to submit to the PBT and the administration of the PBT. The facts do reveal that the statutory PBT warnings of K.S.A. 8-1012 were read, that Jones was not free to leave, and that Jones “did submit” to the PBT. The State bears the burden of showing by a preponderance of the evidence that the consent was voluntary; it failed to do so here. Under the scant facts in the stipulations, Jones’ mere acquiescence to the PBT does not establish voluntary consent. Contrast City of Kingman v. Lubbers, 31 Kan. App. 2d 426, 429, 65 P.3d 1075, rev. denied 276 Kan. 967 (2003), where the Court of Appeals held: “In the present case, [Officer] Woodson correctly advised Lubbers of the consequence of refusing the request to take a preliminary breath test. And the record contains ample evidence that Lubbers freely consented to the procedure.” (Emphasis added.)
As the Court of Appeals stated in another consent to search case, State v. Kriegh 23 Kan. App. 2d 935, 941, 937 P.2d 453 (1997):
“As noted above, consent ‘must be given voluntarily, intelligently, and knowingly.’ Johnson, 253 Kan. at 362. ‘[I]t must be clear that the search was permitted or invited by the individual whose rights are in question without duress or coercion.’ Crowder, 20 Kan. App. 2d at 120. ‘To be voluntary, the defendant’s consent must be “ ‘unequivocal and specific.’ ” ’ State v. Henry, 14 Kan. App. 2d 416, 420, 792 P.2d 358, rev. denied 247 Kan. 706 (1990).
“ ‘In determining whether consent was voluntary, the trial court should consider whether the individual was threatened or coerced, and whether he was informed of his rights.’ Ruden, 245 Kan. at 105; cf. Schneckloth v. Bustamante, 412 U.S. 218, 248-49, 36 L. Ed. 2d 854, 93 S. Ct. 2041 (1973) (holding that a defendant’s knowledge of the right to refuse to consent is not a requirement for a valid consent, but is a factor to be considered).
“ ‘Mere submission to lawful authority does not equate to consent, rather valid consent must be unequivocal and specific, and freely and intelligently given.’ U. S. v. Manuel, 992 F.2d 272, 275 (10th Cir. 1993) (citing Florida v. Royer, 460 U.S. 491, 497, 75 L. Ed. 2d 229, 103 S. Ct. 1319 [1983]); cf. Johnson, 253 Kan. at 362-63.”
In short, the State failed to prove by a preponderance of the evidence that Jones unequivocally, specifically, freely, and intelligently consented to the search of his deep lung air and did not merely submit to lawful authority.
Implied Consent under K.S.A. 8-1001
In Jones’ petition for review, and again at oral argument, he offhandedly asserted that the implied consent provisions of K.S.A. 8-1001 could not supply the necessary consent for PBT testing in the instant case. The State filed no response to the petition but summarily disagreed with Jones’ assertion at oral arguments. Al though neither side briefed the issue, we will address it. See State v. Coleman, 271 Kan. 733, 735, 26 P.3d 613 (2001) (newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case).
K.S.A. 8-1001, states in relevant part at subsection (a):
“Any person who operates or attempts to operate a vehicle within this state is deemed to have given consent, subject to the provisions of this act, to submit to one or more tests of the person’s blood, breath, urine or other bodily substance to determine the presence of alcohol or drugs. The testing deemed consented to herein shall include all quantitative and qualitative tests for alcohol and drugs.” (Emphasis added.)
The PBT is a general test for alcohol; accordingly, at first blush the implied consent provisions from 8-1001 would appear to apply to Jones’ situation. For a number of reasons, however, we hold that they do not.
We begin our analysis with a review of State v. Gray, 270 Kan. at 798, where we stated: “It must be recognized that the tests which may be requested under K.S.A. 1999 Supp. 8-1012 [PBT] and K.S.A. 1999 Supp. 8-1001 [implied consent] are completely separate in purpose, usage, and legal effect.”
We then proceeded to discuss a number of the fundamental differences between the two. We recognized that on the one hand:
“The applicable portions of K.S.A. 1999 Supp. 8-1012 state that if a person submits to the test when requested, the results of a PBT ‘shall be used for the purpose of assisting law enforcement officers in determining whether an arrest should be made and whether to request the tests authorized by K.S.A. 8-1001 and amendments thereto. A law enforcement officer may arrest a person based in whole or in part upon the results of a preliminary screening test.’
“K.S.A. 1999 Supp. 8-1012 additionally states: ‘Refusal to take and complete the test as requested is a traffic infraction.’ [subject to fine]
“The recent case of Gross v. Kansas Dept. of Revenue, 26 Kan. App. 2d 847, Syl. ¶ 2, 994 P.2d 666 (2000), discusses the usage of a PBT as ‘an unobtrusive test given in conjunction with other field sobriety tests to determine probable cause to arrest for driving under the influence.’
“The results of a PBT have greatly limited application in that they are ‘not admissible in any civil or criminal action except to aid the court or hearing officer in determining a challenge to the validity of the arrest or the validity of the request to submit to a test pursuant to K.S.A. 8-1001 and amendments thereto.’ K.S.A. 1999 Supp. 8-1012.” 270 Kan. at 798-99.
We recognized that on die other hand, however,
“[t]he extensive provisions of K.S.A. 8-1001 etseq. allow the evidentiary testing of individuals who have been arrested for DUI or involved in a vehicle accident. The Kansas Implied Consent statutes require that the person to be tested be given the oral and written notices set forth in K.S.A. 1999 Supp. 8-1001(f)(1). After compliance with statutory requirements, if a test is administered with results over the specified legal limit, or if a test is refused, a person’s driving privileges are subject to suspension and restrictions as provided in K.S.A. 1999 Supp. 8-1002 and K.S.A. 1999 Supp. 8-1014. Test results are admissible in evidence at any trial, as are test refusals. [See K.S.A. 8-1005], Pursuant to K.S.A. 1999 Supp. 8-1013(h) and (i), the definitions of ‘test failure’ and ‘test refusal’ clearly do not include the PBT for purposes of evidentiary alcohol testing under the implied consent statutes.” 270 Kan. at 799.
In addition to the differences discussed by the Gray court, we observe two others of significance, both of which concern pretesting requirements in the two statutes.
First, we examine pretest warnings. K.S.A. 8-1001(f) states in relevant part:
“Before a test or tests are administered under this section, the person shall be given oral and written notice that: (A) Kansas law requires the person to submit to and complete one or more tests of breath, blood or urine to determine if the person is under the influence of alcohol or drugs, or both.”
Subsection (f) then lists eight additional required elements of the oral and written warnings. See K.S.A. 8-1001(f)(B)-(I).
By contrast, K.S.A. 8-1012 requires only a three-part, oral warning before the PBT administration:
“At the time the test is requested, the person shall be given oral notice that: (1) There is no right to consult with an attorney regarding whether to submit to testing; (2) refusal to submit to testing is a traffic infraction; and (3) further testing may be required after the preliminary screening test.”
We acknowledge that two of these pre-PBT warnings are similar to those in K.S.A. 8-1001, i.e., K.S.A. 8-1001(f)(C) (no right to consult with an attorney regarding whether to submit to testing) and K.S.A. 8-1001(f)(D) (refusal to submit to testing carries a consequence). Nevertheless, die additional seven elements in the warnings of 8-1001, some of which are discussed in Gray, evidence that the legislature meant for the two tests to be markedly different, i.e, “separate in purpose, usage, and legal effect.” 270 Kan. at 798.
Second, we examine additional law enforcement predicates to testing under the statutes. K.S.A. 8-1001(b) requires the establishment of two of those listed, stating in relevant part:
“A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a)[implied consent provision] if [First] the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or both, or to believe that the person was driving a commercial motor vehicle, as defined in K.S.A.8-2,128, and amendments thereto, or was under tire age of 21 years while having alcohol or drugs in such person’s system, and [Second] one of the following conditions exists: (1) the person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence of alcohol or drugs, or both, or for a violation of K.S.A. 8-1567a, and amendments thereto, or involving driving a commercial motor vehicle, as defined in K.S.A. 8-2,128, and amendments thereto, while having alcohol or other drugs in such person’s system, in violation of a state statute or a city ordinance; or (2) the person has been involved in a vehicle accident or collision resulting in property damage, personal injury or death.”
By contrast, K.S.A. 8-1012 provides that only one of three possible predicates to PBT testing need be established, i.e., “if the officer has reasonable grounds to believe that the person: (a) Has alcohol in the person’s body; (b) has committed a traffic infraction; or (c) has been involved in a vehicle accident or collision.”
These marked differences between the statutes further evidence that the legislature meant for the tests to be “completely separate in purpose, usage, and legal effect.” Gray, 270 Kan. at 798.
Finally, and most persuasive, is the language in K.S.A. 8-1001(b), which provides that if a law enforcement officer can establish two of the listed predicates, then the “officer shall request a person to submit to a test or tests deemed consented to under subsection (a).” (Emphasis added.) By contrast, 8-1012 contains no implied consent language. Accordingly, if an officer establishes only the minimum of one of the predicates for testing listed in 8-1012, he or she cannot request that the vehicle operator be tested via the implied consent provisions contained in 8-1001(a); application of the im plied consent provisions requires meeting two predicates in 8-1001(b).
We conclude that because of the substantial differences discussed in Gray and here, the clear language of 8-1001(b), and the absence of implied consent language in 8-1012, the implied consent provisions of K.S.A. 8-1001 do not apply to the administration of PBT’s.
We also observe that without the PBT results, the State did not meet the predicates from 8-1001 that would permit die subsequent blood test. The State met the requirement of a vehicle accident resulting in personal injuiy but failed to meet the other, i.e., the officer had no reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs, or botii. The officer had performed no field sobriety tests and had made no observations suggesting alcohol use such as Jones’ physical characteristics or confession to alcohol consumption. Contrast State v. Chacon-Bringuez, 28 Kan. App. 2d 625, 18 P.3d 970, rev. denied 271 Kan. 1038 (2001) (In addition to PBT results showing breath sample over legal limit, odor of alcohol was on defendant’s breath, eyes were bloodshot and watery, he confessed to alcohol consumption, 9 beers were left in 12-pack box in the truck, and defendant had problems performing field sobriety tests.). Here, the officer’s “reasonable grounds to believe” were based entirely upon the PBT, which we hold was involuntarily performed by Jones.
Accordingly, under both the express and implied consent scenarios in die instant case, the results of the PBT were not admissible. Whether characterized as the result of failure to meet the requirements for testing under K.S.A. 8-1001 or as fruit of the poisonous tree, the subsequent blood test results were also inadmissible. Without this evidence, the conviction cannot stand.
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|
The opinion of the court was delivered by
Davis, J.:
John Keith Calvin appeals his convictions of felony first-degree murder and attempted robbery. He contends insufficient evidence supported his felony-murder conviction, the information was fatally defective, and several instructional errors require reversal of his convictions. Our review fails to disclose reversible error and we affirm.
John Coates died of multiple gunshot wounds outside his residence in Kansas City, Kansas. At the time he was killed he was a drug dealer and was living with his younger brother, Leslie Mark Coates. Leslie testified that someone knocked on the back door around 9 p.m., which was the normal procedure when the victim sold drugs. Leslie let the man inside, recognizing him as the defendant because he was a customer of the victim’s and had been at the house at least 20 times. The defendant tried to sell the victim CDs, the victim said he did not want them, and Leslie left the kitchen and went into another room while they continued talking.
About a minute later, Leslie heard shots, grabbed a pistol from under his bed, and ran to the kitchen, but the victim was not there. The door was not shut all the way so he went outside and saw his brother lying on the ground. Leslie saw two men run from behind a tree toward a car parked on a street behind the victim’s backyard. He shot at them a few times before they got into the back seat of the car, with the driver waiting inside. Leslie identified one of the individuals running from the house and getting into the car as the defendant.
A neighbor named Wally hollered out, “Who is that in the back yard?” Leslie told Wally to come over and asked him to call an ambulance. Leslie left the residence before the police arrived, intending to hide his gun with the victim’s son, Adrian Coates; however, Adrian was not home. He returned to Adrian’s residence around 3 a.m. and hid the gun. Adrian subsequently convinced Leslie to turn the gun over to the police.
Another neighbor testified that she heard an apparent argument between two men and then heard two sets of gunshots. She could not identify the silhouette she saw running through the yard because it was pitch black and the person was wearing dark clothes. She heard someone from the victim’s residence yelling at someone who had run out into a field, and she heard a response. Someone drove away from the victim’s residence at a high, rate of speed before the police arrived.
Three suspects were developed during the homicide investigation, the defendant; Melvin Lee White, a.k.a. “Snooky” or “Snake Eyes,” and Benjamin Russell. Leslie was not aware of any problems between the defendant and his brother; however, Leslie, Adrian, and Christina Burton told the police that White and the victim had a bad relationship. White had robbed and pistol-whipped the victim on a prior occasion and had threatened the victim as recendy as 4 days before the murder. Adrian testified that White had left threatening messages on the victim’s answering machine and had stalked the victim. Adrian also testified that White and the victim had dated the same woman and White was jealous of the victim’s successful business. Adrian had heard that White was saying he was going to kill the victim. White’s alibi did not check out.
Russell was a 17-year-old friend of White’s stepson and he testified at trial pursuant to a plea agreement. Around 8 p.m. on the night of the incident, Russell ran into White and the defendant at a gas station. White gave Russell $20 to drive White and the defendant to someone’s house. Russell parked on a street behind the house, and the defendant got in the back seat with White and discussed White’s plan to rob someone. The defendant agreed to try to sell CDs in an effort to get inside the home because they knew that the victim would not let White in. They discussed who was going to carry the gun before they got out of the car, climbed the fence, and walked toward the house. Russell told officers that he got out of the car and watched the incident from the fence, but at trial he claimed that he remained in the car. Russell told White that if White gave him more money, Russell would take White home after White and the defendant went their separate ways.
Russell watched White hide by the side of the house while the defendant went inside. After 5 to 10 minutes, White grabbed the victim when he walked out die door with the defendant. The defendant stood watching as White and the victim wrestled, grabbed each other, yelled, and fell to the ground to the sound of gunshots. Russell told police that the defendant then ran away between the houses. Russell claimed that he drove away after he heard the gunshots and that no one came back and got into his car.
The defendant’s sister, Gloria Calvin, lived a block from the victim’s residence. She testified that the defendant came to her house between 9 and 10 p.m. and said someone was shooting on the other street. She said the defendant was out of breath as if he had been running. When hearing sirens, the defendant and Gloria drove to another sister’s house who lived on the same street as the victim, to see what was happening. Gloria went into her sister’s house and did not see the defendant again that evening.
The Kansas Bureau of Investigation firearm and tool mark examiner testified that three of the .25 caliber auto bullets recovered from the victim’s body were identified as being fired from the same firearm; however, she could not conclusively say that the fourth bullet which was also a .25 caliber auto came from the same weapon. Six .25 caliber shell casings recovered from the scene were tested. Testing showed that two of the casings were fired from the same firearm, another two were fired from another firearm, and the other two were inconclusive. Tests were inconclusive as to whether the one spent .38 caliber shell casing found at the scene was fired by the .380 caliber Locin handgun used by Leslie Coates, which was recovered at Adrian’s residence.
The defendant did not testily at trial or present any witnesses. In an interview with police, defendant denied involvement with the crime. However, 3 days later he made two more statements, which were videotaped and played at trial. The transcripts of these statements are contained in the record on appeal.
In the first statement, the defendant denied any knowledge of the robbery. He said that White came to his house with his nephew, later identified as Russell, and gave him several CDs. The defendant went to the victim’s house to sell the CDs and he guessed that White had followed him, but he did not see him. He said that when he opened the door to leave, Russell came into the house with a gun. The victim tried to push Russell out, they struggled, they ended up on the ground with the victim on top, and shots were fired. The defendant ran to his sister’s house fearing he would be shot because Russell was following after him. He denied knowing White and Russell were going to rob the victim.
During the defendant’s later interview, officers made it very clear that they did not believe the defendant’s version of events. The videotape was turned off and the officers continued to point out the inconsistencies in the defendant’s statement. About 15 minutes later, the defendant said he wanted to tell the truth and they turned the videotape back on. The defendant admitted that White asked him to sell the CDs to get the door open for Russell to rob the victim. White said the defendant could keep the money he made from the CDs. The defendant maintained that he walked to the victim’s house, Russell pointed the gun at the victim when he tried to get through the door, and the defendant took off running when he heard the gunshots.
In opening and closing argument, the theory of defense was that the defendant was not aware that a robbery was going to take place, he was used by White and Russell to at least rob the victim, he was innocently at the victim’s house selling CDs, and the officers coerced him into making the incriminating second statement.
The defendant was convicted of felony first-degree murder and attempted robbery. The defendant’s alternative motions for judgment of acquittal notwithstanding the verdict and motion for new trial were denied. He was sentenced to life imprisonment with the possibility of parole after 20 years.
A. SUFFICIENCY OF EVIDENCE
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Beach, 275 Kan. 603, Syl. ¶ 2, 67 P.3d 121 (2003).
The amended information charged the defendant with felony murder committed by “unlawfully and feloniously, in the perpetration, attempt to perpetrate, or flight from an inherently dangerous felony, to wit: Robbery, kill a human being, to wit: John Coates.” Count II charged the defendant with attempted robbery by: “unlawfully, feloniously, knowingly and willfully committing] an overt act to-wit: distracted one John Coates in order to facilitate a robbery, toward the perpetration of the crime of robbery . . . with the intent to commit said crime, but failed or was prevented or intercepted in the execution of said crime.”
The defendant argues that insufficient evidence supported his conviction of felony murder based upon the underlying crime of robbery. He reasons that no evidence was presented that an actual robbery took place, such as a demand for money, property, or drugs; testimony that any property was taken by force or threat from the victim; or testimony that any property was missing from the house or the victim. He contends the mere discussion of a robbery was insufficient to establish the underlying felony of robbery.
The defendant further argues that although he was convicted of attempted robbexy, that was not alleged as the underlying felony. He argues the terms “in the commission of,” “attempt to commit,” and “flight from,” used in the felony-murder statute, are temporal requirements delineating when a killing may occur and still be part of the underlying felony. See State v. Kleypas, 272 Kan. 894, 938, 40 P.3d 139 (2002). He contends it is possible the jury could have believed that he committed an overt act towards the commission of a robbery and was attempting to commit a robbery by going into the victim’s home, but since no robbery actually occurred, there was no underlying felony, making it impossible for him to be found guilty of felony murder.
The State counters that no evidence of a robbery actually taking place was presented or required because the underlying felony was really attempted robbery. It points to language in the felony-murder statute that the ldlling may occur during an “attempt to commit” an inherently dangerous felony. K.S.A. 21-3401(b). The State argues that the murder interfered with the completion of the underlying felony of robbery. We agree.
Felony murder is the killing of a human being in the commission of, attempt to commit, or flight from an inherently dangerous felony as defined in K.S.A. 2003 Supp. 21-3436. K.S.A. 21-3401(b). “Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21-3426. “An attempt is any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 21-3301(a).
An overt act cannot be defined by applying a set of definitive rules; rather, each case must be decided based on the unique facts presented and the inferences which might reasonably be drawn from those facts. State v. Salcido-Corral, 262 Kan. 392, 398, 940 P.2d 11 (1997). “In order to prove the defendant attempted an underlying felony (and thereby committed felony murder), the State must show that die defendant took a step beyond mere preparation so that some appreciable fragment of the underlying crime was committed.” 262 Kan. at 398.
Under the facts of this case, the defendant is correct that insufficient facts were presented that a robbery was completed, as no evidence was presented that White, Russell, or the defendant intentionally took any property from the victim or that any property was missing from the victim’s residence. However, the State is also correct in pointing out that felony murder is supported if the killing was committed during “an attempt to commit” the robbery. See K.S.A. 21-3401(b). A robbery does not need to be completed in order to support the attempt for the purposes of K.S.A. 21-3401(b). State v. Bradford, 254 Kan. 133, 140, 864 P.2d 680 (1993). Moreover, the element of attempt to commit an underlying felony may be proven by circumstantial evidence so long as the jury could draw from the evidence a reasonable inference of guilt. State v. Sanford, 237 Kan. 312, 317, 699 P.2d 506 (1985).
The question becomes whether the noncriminal act by the defendant of selling CDs to the defendant was a sufficient overt act toward the perpetration of a robbery. The defendant’s action in selling the CDs to the victim was not in and of itself an element of the crime of robbeiy. However, evidence was presented that the defendant gained access to the victim’s home with the intent of getting the door open for one of the codefendants so he could rob the victim. The defendant’s efforts to aid and abet the robbeiy were prevented or intercepted when, according to the defendant, Russell pointed a gun at the victim, struggled with him, and the victim was shot.
An appreciable fragment of the crime was proven by the defendant’s statement that when he got the victim to open the door, Russell pointed the gun at the victim while tiying to force his way inside of the home (threat of bodily harm). The inference that Russell was intending to rob the victim is certainly reasonable based upon the evidence of White and the defendant’s plan to commit the robbery in this manner with the use of a gun. Viewing the evidence in the light most favorable to the State, sufficient evidence was presented that the killing happened during the attempt to commit the underlying felony of robbery.
B. A LESSER INCLUDED OFFENSE
When discussing jury instructions at trial, both parties agreed with the following erroneous statement made by the district court: “There is no lesser included offense I don’t believe of felony murder and I don’t think that there’s any evidence that this was a premeditated murder or anything of that nature, which would require an instruction on second degree or voluntary or anything of that nature.”
On appeal, the defendant argues the district court erred in failing to instruct the jury on second-degree murder as a lesser included offense of felony murder.
“When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence of the underlying felony is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required.” State v. Boone, 277 Kan. 208, Syl. ¶ 6, 83 P.3d 195 (2004).
As demonstrated in the first issue, evidence that the victim was killed during an attempt to commit the underlying felony was sufficient to support the conviction, and thus was not weak, inconclusive, or conflicting. As such, no lesser included offense instructions were required to be given. However, even if we were to conclude otherwise, the defendant has not demonstrated that the district court’s failure to instruct the jury on second-degree murder was clearly erroneous.
“No party may assign as error the giving or failure to give an instruction, including a lesser included crime instruction, unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection unless the instruction or the failure to give an instruction is clearly erroneous. The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict.” Boone, 277 Kan. 208, Syl. ¶ 8.
Second-degree murder is a lesser included offense of felony murder. State v. Sandifer, 270 Kan. 591, 597-98, 17 P.3d 921 (2001). “Murder in the second degree is the killing of a human being committed: (a) Intentionally; or (b) unintentionally but recklessly under circumstances manifesting extreme indifference to the value of human life.” K.S.A. 2003 Supp. 21-3402.
The defendant argues that the jury should have been instructed on intentional second-degree murder based on evidence that White and the victim had a bad relationship which involved White threatening the victim. The defendant contends it is possible that White was thinking of committing robbery but changed his mind and decided to kill the victim. As the evidence of the robbery was weak, he contends that the jury could have doubted that the motive for the murder was robbery. See State v. Shumway, 30 Kan. App. 2d 836, 848, 50 P.3d 89, rev. denied 274 Kan. 1117 (2002) (district court properly instructed on second-degree murder in felony-murder case where evidence that witness saw the defendant rifling through the victim’s pockets after the beating and claimed the defendant took money and credit cards was far from overwhelming to prove aggravated robbery).
The defendant speculates that had the court instructed on second-degree murder, the issue would have become whether or not he was an aider or abettor, and he would have argued that he did not have the intent to be involved in or participate in a murder because he had no knowledge that a murder was going to be committed. As such, he concludes that a real possibility exists that a different verdict would have been reached.
The defendant’s arguments are conflicting and without merit. He contends that he could not have been convicted of second-degree murder based on the evidence presented at trial, yet maintains he was still entitled to a second-degree murder instruction based upon evidence regarding White’s relationship with the victim. “An instruction on a lesser included crime, however, is not required if the jury could not reasonably convict the defendant of the lesser crime based on the evidence presented.” Boone, 277 Kan. at 220-21.
The defendant rightly acknowledges that no evidence was presented at trial that he aided or abetted the intentional murder of the victim; rather, the only evidence of his involvement in any possible crime related to robbery of the victim. Thus, even if the jury had been so instructed, no real possibility exists that it would have reached a different verdict. The district court’s failure to give an unrequested lesser included second-degree murder instruction was not clearly erroneous.
C. OVERT ACT INSTRUCTION
In this case, the jury was instructed without objection that in order to establish the charge of attempt to commit robbery, the following claims must be proved:
“1. That the defendant performed an overt act, to-wit: distracted one John Coates in order to facilitate a robbery, toward the commission of the crime of Robbery;
“2. That the defendant did so with the intent to commit the crime of Robbery;
“3. That the defendant failed to complete commission of the crime of Robbery; and
“4. That this act occurred on or about the 12th day of December, 2002, in Wyandotte County, Kansas.”
The defendant argues the district court’s failure to include the following definition of the term “overt act” in the attempted robbery instruction was clearly erroneous:
“An overt act necessarily must extend beyond mere preparations made by the accused and must sufficiently approach consummation of the offense to stand either as the first or subsequent step in a direct movement toward the completed offense. Mere preparation is insufficient to constitute an overt act.” PIK Crim. 3d 55.01.
The defendant reasons that without this definition, the jury could have concluded that the conversations the defendant had with the others about robbing the victim or the defendant’s entry into the victim’s home constituted an overt act, when in fact, both could be considered mere preparations and insufficient to constitute an overt act. The defendant argues that counsel should have been able to make these arguments in front of a jury that was properly instructed as to what constitutes an attempt and an overt act. This argument is without merit.
As the defendant did not request this instruction, this court reverses only if a real possibility exists that the jury would have rendered a different verdict if the instruction had been given. Moreover, “if the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.” State v. Aikins, 261 Kan. 346, Syl. ¶ 25, 932 P.2d 408 (1997).
The jury in this case could not have been misled into believing that mere preparations constituted the overt act because the attempted robbery instruction clearly defined what conduct was alleged to be the overt act: “distracted one John Coates in order to facilitate a robbery.” While the better practice would have been to include the definition of “overt act” as provided in the pattern instruction, this error was harmless as the instruction properly and fairly stated the law as applied to the facts of this case. See State v. Kleypas, 272 Kan. at 940-941 (recommending language that “[m]ere preparation is insufficient to constitute an overt act” be added to the pattern instruction, but finding instruction which omitted the word “overt” and did not define the term was not clearly erroneous). Thus, the court’s failure to define overt act was not clearly erroneous.
D. FELONY-MURDER INSTRUCTION
The defendant argues that the following portion of the felony-murder jury instruction was erroneous because it did not require the jury to find the defendant participated in the underlying felony: “(2) That such killing was done while in the commission of, or the attempt to commit, or in flight from committing or attempting to commit an inherently dangerous felony, to wit: Robbery.”
The defendant explains that the jury may have believed that White killed the victim in the act of robbery and convicted the defendant because he was at the scene, even if it believed the defendant’s first version of events indicating that he did not know about the robbery. He contends the instruction should have refer enced the defendant’s participation in the underlying felony: “ ‘Such killing was done while defendant and others committed . . . [r]obbery.’ ” (Emphasis added.) As the defendant did not request this instruction, the clearly erroneous standard of review is applicable. See Boone, 277 Kan. 208, Syl. ¶ 8.
The State argues that when the felony-murder instruction is reviewed in conjunction with the aiding and abetting instruction, the jury instructions as a whole, in light of the evidence and the opposing theories of the case, were not confusing and properly informed the jury of the law as applied to the facts of the case.
Both arguments fail to acknowledge that the defendant was also convicted of the separate crime of attempted robbery. To support that conviction, the jury was instructed that it had to find that the defendant performed the overt act of distracting the victim in order to facilitate the commission of the crime of robbery, that the defendant did so with the intent to commit the crime of robbery, and that the defendant failed to complete commission of the crime of robbery.
The jury could not have found that the defendant went to the house to distract the victim with the intent of committing robbery and also that he did not know about the robbery. Under the facts of this case, no reasonable possibility exists that the jury would have reached a different verdict if this amended instruction had been given. See Boone, 277 Kan. 208, Syl. ¶ 8.
E. REQUESTED CAUTIONARY EYEWITNESS IDENTIFICATION INSTRUCTION
At trial, defense counsel orally requested an eyewitness identification instruction based on Leslie Coates’ testimony that he saw the defendant running from the scene and getting into a car. The district court ruled the instruction was unnecessary because Leslie testified that he knew the defendant and had seen him at least 20 times at the victim’s house. The defendant appeals this decision and argues the following instruction should have been given:
“The law places the burden upon the State to identify the defendant. The law does not require the defendant to prove (he)(she) has been wrongly identified. In weighing the reliability of eyewitness identification testimony, you first should determine whether any of the following factors existed and, if so, the extent to winch they would affect accuracy of identification by an eyewitness. Factors you may consider are:
“I. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of the time of observation, and any limitations on observation like an obstruction or poor fighting;
“2. The emotional state of the witness at the time including that which might be caused by the use of a weapon or a threat of violence;
“3. Whether the witness had observed the defendant(s) on earlier occasions;
“4. Whether a significant amount of time elapsed between the crime charged and any later identification;
“5. Whether the witness ever failed to identify the defendant(s) or made any inconsistent identification;
“6. The degree of certainty demonstrated by the witness at the time of any identification of the accused; and
“7. Whether there are any other circumstances that may have affected the accuracy of the eyewitness identification.” PIK Crim. 3d 52.20.'
“In any criminal action in which eyewitness identification is a critical part of the prosecution’s case and there is serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony.” State v. Mann, 274 Kan. 670, Syl. ¶ 1, 56 P.3d 212 (2002).
“The reliability of the identification and the credibility of an eyewitness are not the same thing.” 274 Kan. at 679.
However, the factors set out in PIK Crim. 3d 52.20 contemplate an eyewitness who does not know the defendant personally. See State v. Saenz, 271 Kan. 339, 354, 22 P.3d 151 (2001). “Where the witness personally knows the individual being identified, the cautionary eyewitness identification instruction is not necessary and the accuracy of the identification can be sufficiently challenged through cross-examination.” Mann, 274 Kan. 670, Syl. ¶ 2.
The defendant argues that Mann and its predecessor cases should be overruled because it is illogical to conclude that because an eyewitness knows someone, they cannot make a mistake in an identification of that person. He points to evidence that the witness was in an extreme emotional state, that his opportunity to observe the individuals was limited because of the darkness and the movement of the individuals, that Russell claimed he drove away alone, and that the defendant’s sister verified that he came to her house after the incident. He argues it was possible the two men that Leslie saw running were Russell and White.
As the evidence cited by the defendant on appeal to challenge the accuracy of the identification was brought to the jury’s attention at trial, the defendant has not shown how the failure to give the cautionary eyewitness instruction has prejudiced him. Even if Leslie was mistaken and saw Russell and White getting into the car, the defendant has maintained that he went to the victim’s house to sell CDs and that he ran from the scene when he heard gunshots. The only disputed fact was whether he got into the car presumably driven by Russell. The principal issue was not whether the defendant got into the car, but whether he was aware that a robbery was going to take place. The defendant has failed to demonstrate that Mann should be overruled under the facts of his case.
F. FATALLY DEFECTIVE INFORMATION
The defendant argues the amended information in this case was fatally defective. He argues it was not properly verified because: (1) it stated that the district attorney had read and verified the contents but it was signed by a different assistant district attorney; and (2) the clerk of the district court’s signature as notary was file-stamped and signed by another individual whose title was not identified.
The defendant acknowledges this issue was not raised below and contends the standard of review is governed by State v. Hall, 246 Kan. 728, 765, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). The State argues that the defendant has waived this issue by failing to object to the amended information at the district court level, under State v. Fraker, 242 Kan. 466, 748 P.2d 868 (1988). The State’s argument is correct.
K.S.A. 22-3208(3) provides:
“Defenses and objections based on defects in the institution of the prosecution or in the complaint, information or indictment other than that it fails to show jurisdiction in the court or to charge a crime may be raised only by motion before trial. The motion shall include all such defenses and objections then available to the defendant. Failure to present any such defense or objection as herein provided constitutes a waiver thereof, but the court for cause shown may grant relief from the waiver. Lack of jurisdiction or the failure of the complaint, information or indictment to charge a crime shall be noticed by the court at any time during the pendency of the proceeding.”
In State v. Graham, 247 Kan. 388, 395, 799 P.2d 1003 (1990), this court found that the defendant’s objection to the unverified complaint after the jury was sworn was untimely and did not deprive the court of jurisdiction to proceed with the trial. Citing Fraker, the court reasoned that the lack of verification on the complaint is not a defect that deprives the court of jurisdiction, a verification defect could be waived, and the right to challenge the verification can be lost through inaction. 247 Kan. at 394.
In this case, the defendant failed to comply with K.S.A. 22-3208(3) by objecting to the verification defect prior to trial. As such, he has waived his right to raise this issue on appeal.
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the Disciplinary Administrator’s office against Jimmie A. Vanderbilt, of Oskaloosa, an attorney admitted to the practice of law in Kansas.
The formal complaint against respondent alleges violations of KRPC 1.1 (2004 Kan. Ct. R. Annot. 342) (competence); 1.3 (2004 Kan. Ct. R. Annot. 354) (diligence); 1.16(d) (2004 Kan. Ct. R. An-not. 426) (terminating representation); 3.2 (2004 Kan. Ct. R. Annot. 440) (expediting litigation); and 8.4(d) and (g) (2004 Kan. Ct. R. Annot. 485) (misconduct). Respondent filed a formal answer admitting the allegations set out in the formal complaint.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on September 21, 2004, in Topeka, Kansas. Respondent appeared in person and through counsel, John J. Ambrosio. The panel found by clear and convincing evidence:
“2. In 1996 and in 2000, the Respondent was elected to serve Jefferson County as the County Attorney. The Respondent presently continues in that capacity. His term will end in January, 2005.
“State v. Mavrovich, No. 79,527.
“3. Andrew Mavrovich appealed the District Court’s approval of a Nunc Pro Tunc Order regarding his sentence to the Kansas Court of Appeals. Mr. Mavrovich questioned whether the amended journal entry should have included credit for time spent in competency testing before trial.
“4. As County Attorney, it was the Respondent’s responsibility to file a brief in behalf of the State of Kansas in Mr. Mavrovich’s appeal. The Respondent failed to file a brief with the Kansas Court of Appeals.
“5. During the disciplinary investigation, the Respondent told the disciplinary investigator that he did not file a brief in the Mavrovich case because he ‘wasn’t going to waste [his] damn time responding to this crap.’
“6. The Kansas Court of Appeals affirmed Mr. Mavrovich’s sentence.
“State v. Robinson, No. 84,806
“7. A jury convicted Randy L. Robinson of manufacturing methamphetamine, possession of drug paraphernalia, and possession of anhydrous ammonia. Mr. Robinson appealed the three convictions and the sentence for manufacturing methamphetamine.
“8. Again, it was the Respondent’s responsibility, as County Attorney, to file an appellate brief in behalf of the State of Kansas in Mr. Robinson’s case. The Respondent failed to file a brief in the Robinson case with the Kansas Court of Appeals.
“9. During the disciplinary investigation, the Respondent told the disciplinary investigator that he did not file a brief because he did not believe that doing so was important.
“10. In its opinion, the Kansas Court of Appeals stated:
“We note with much concern that the State did not file a written brief. This omission hindered our efforts to arrive at a just decision. At best, the State’s failure to file a brief suggests a lack of confidence that the lower court’s decision should be upheld; at worst, a lack of necessary zeal in representing and protecting the interests of the public.’
The Kansas Court of Appeals reversed Mr. Robinson’s conviction for manufacturing methamphetamine and remanded the case for a new trial.
“State v. James, 31 Kan. App. 2d 548, 67 P.3d 857 (2003)
“11. Timothy J. James, contrary to his pleas, was convicted of the felonies of aiding and abetting aggravated burglary, aiding and abetting aggravated robbery, and aiding and abetting aggravated kidnapping. Thereafter, the Honorable Gary L. Nafziger, Jefferson County District Court Judge, sentenced Mr. James to 253 months in prison.
“12. Mr. James filed a timely motion for a new trial. The District Court denied the motion for a new trial. Thereafter, Mr. James filed a timely notice of appeal to the Kansas Court of Appeals. In the appeal, Mr. James alleged that the District Court erred in denying the motion for new trial because (1) the evidence was insufficient, (2) his trial counsel was ineffective, and (3) there was newly discovered evidence.
“13. Again, it was the Respondent’s responsibility to file an appellate brief in behalf of the State of Kansas in Mr. James’ case. The Respondent failed to file a brief with the Kansas Court of Appeals.
“14. On May 2, 2003, the Kansas Court of Appeals issued its opinion. In its decision, the Court stated:
The State’s failure to file a brief and to contest appellant’s allegations concerning his attorney leaves us with little choice but to believe that appellant’s attorney acted as appellant indicates in his brief. This is one consequence of the State’s failure to file a brief with this court or to deny the contents of appellant’s brief.’
State v. James, 31 Kan. App. 3d 548,552-53 (2003). The Kansas Court of Appeals therefore agreed with Mr. James, and concluded that he did not have the benefit of effective assistance of counsel, and reversed Mr. James’ conviction and remanded the case for a new trial. Id. at 554.
“15. On remand, the Respondent hired a special prosecutor to handle the prosecution. At the conclusion of the second trial, Mr. James was convicted of only one of the three crimes originally charged, compared to conviction of three crimes in the first trial. At the second sentencing, Mr. James was sentenced to only 76 months, compared with the 253 months sentenced after the first trial.
“16. At the hearing on this matter, the Respondent acknowledged the serious ramifications that occurred as a direct result of his failure to file a brief in the James case. The Respondent testified that (1) the victims and witnesses had to undergo the stress and strain of testifying a second time, (2) the county had to incur the expense of a second trial, and (3) Mr. James is a dangerous person who will be released back into society after 76 months rather than after 253 months. In addition, the conduct of Mr. James’ original trial counsel was deemed ‘ineffective,’ thereby besmirching his good name, without a defense of that good name in the appellate court.
“Cellular Telephone
“17. In his capacity as the Jefferson County Attorney, the Respondent obtained a cellular telephone. The Respondent’s budget for this item was $150.00 per month.
“18. At some point, the Respondent engaged in a conversation with the cellular telephone company. After the conversation, the Respondent believed that the agreement for the cellular telephone included unlimited calling. The Respondent took no action to obtain written confirmation of the new agreement. Thereafter, the Respondent began using the county-paid telephone for personal calls.
“19. The Respondent’s agreement with the cellular telephone company did not include unlimited minutes. The Respondent’s personal use of his business cellular telephone resulted in added charges. As a result, the Respondent owes Jefferson County $791.00 for the expenses associated with his personal use of the business cellular telephone.
“20. The Respondent has not reimbursed Jefferson County the $791.00 for the personal use of cellular telephone, despite his acknowledgment that he owes it.
“Debit Card
“21. While in Salina for personal reasons, the Respondent used a debit card issued to him for professional use by Jefferson County. The amount of the expense was $80.00.
“22. The Respondent has not reimbursed Jefferson County the $80.00, despite his acknowledgment that he owes it.
“23. While in South Carolina attending a continuing legal education conference, tire Respondent used the debit card issued to him from Jefferson County. The expenses incurred by the Respondent while attending the conference exceeded die amount included in the Jefferson County personnel handbook. At the hearing on this matter, the Respondent agreed to pay back any expenses that exceeded tiróse set forth in the Jefferson County personnel handbook. The Respondent has not reimbursed Jefferson County for excess expenses incurred in South Carolina.
“24. At tire hearing on this matter, the Respondent acknowledged that he owes Jefferson County for the expenses related to the cellular telephone and the debit card. The Respondent agreed that he will reimburse Jefferson County before he leaves office in January, 2005.
“Mental Health
“25. William L. Albott, Ph.D., testified in the Respondent’s behalf at the hearing on this matter. Dr. Albott is a licensed psychologist. Dr. Albott testified that in July, 2003, he evaluated the Respondent. Dr. Albott’s evaluation included psychological tests as well as a personal interview. A report of the evaluation can be found at Disciplinary Administrator’s Exhibit 5.
“26. Based upon the psychological testing and the personal interview, Dr. Albott concluded as follows:
‘There are no indications of any enduring or significant mental illness or psychological problems. That he experienced a great deal of stress and was cognitively and psychologically dysfunctioning at the time of his reported unprofessional conduct seems clearly evident and had he been seen at that time, the most likely diagnosis which would have been given is Adjustment Disorder with Mixed Disturbance of Emotions and Conduct, Acute. At this time, the diagnosis can be seen as continuing to characterize both his behavior and his psychological functioning.
....
‘It is strongly recommended that Mr. Vanderbilt become involved in an individual psychotherapy process which is directed at developing a broader range of interpersonal problem solving skills and means of adapting to stress. . . .
‘To tire question as to whether I see Mr. Vanderbilt able to function as an Attorney and conform to the rules of professional conduct, I see nothing in my interview or the psychological tests that would indicate he is incapable of such functioning. It is my opinion drat Mr. Vanderbilt can function ef fectively and appropriately as an attorney and the therapy process noted above will diminish the possibility of any future unprofessional conduct. It would not be unreasonable for his practice at [sic] an Attorney to be monitored, particularly at this time, to insure that his personal life problems are not becoming again totally consuming of his cognitive and emotional energy.’ ”
The panel made the following conclusions of law:
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.3, KRPC 3.2, KRPC 8.4(d), and KRPC 8.4(g), as detailed below.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent failed to competently represent Jefferson County when he failed to file briefs in the Mavrovich case, the Robinson case, and the James case. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Jefferson County when he failed to file briefs in the Mavrovich case, the Robinson case, and the James case. Because the Respondent failed to act with reasonable diligence and promptness in representing Jefferson County, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“4. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. In this case, the Respondent failed to expedite the Mavrovich case, the Robinson case, and the James case before the Kansas Court of Appeals. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 3.2.
“5. KRPC 8.4 provides, in pertinent part, as follows:
‘It is professional misconduct for a lawyer to:
....
‘(d) engage in conduct that is prejudicial to the administration of justice;
....
‘(g) engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law.’
The Respondent violated KRPC 8.4(d) and KRPC 8.4(g), as detailed below:
‘a. The Respondent engaged in conduct that was “prejudicial to the administration of justice,” when he failed to file briefs in the Miavrovich case, the Robinson case, and the James case. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 8.4(d).
‘b. Using the cellular telephone issued to him in his professional capacity, for personal purposes and failing to timely reimburse Jefferson County adversely reflects on the Respondent’s fitness to practice law. Additionally, using the debit card issued to him in his professional capacity, for personal purposes and failing to timely reimburse Jefferson County adversely reflects on tire Respondent’s fitness to practice law. As such, die Hearing Panel concludes diat the Respondent violated KRPC 8.4(g).’ ”
The panel applied the American Bar Association Standards for Imposing Lawyer Sanctions (1991) and considered ABA Standard 3 in making its recommendation as to the discipline to be imposed against the respondent. The panel stated:
“Duty Violated. The Respondent violated his duty to his client to provide diligent and competent representation. Additionally, the Respondent violated his duty to the legal system to expedite litigation and to refrain from interfering with the administration of justice. Finally, the Respondent violated his duty to the legal profession to maintain personal integrity.
"Mental State. The Respondent laiowingly violated his duties.
“Injury. As a result of the Respondent’s misconduct, die Respondent caused actual harm. Specifically, regarding the James case, Mr. James’ trial counsel was accused of failing to provide effective assistance of counsel. Because the Respondent failed to controvert Mr. James’ claim, the Kansas Court of Appeals concluded that Mr. James’ trial counsel was ineffective and reversed Mr. James’ convictions of three serious felony crimes. The victims and witnesses had to testify a second time, Jefferson County incurred the expense of a second trial, and Mr. James was convicted of only one of the diree crimes and received 76 months in prison, rather than the 253 month sentence he originally received.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Pattern of Misconduct. In addition to the multiple failures to file appellate briefs, there are multiple instances of (he Respondent not repaying Jefferson County and this failure continues still despite his acknowledgment that the debt is owed.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, KRPC 3.2, KRPC 8.4(d), and KRPC 8.4(g). As such, the Respondent committed multiple offenses.
“Indifference to Making Restitution. To date, the Respondent has made no effort to malee restitution to Jefferson County for his personal use of the cellular telephone and debit card.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary process.
“In addition to the above-cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when:
(a) a lawyer knowingly fails to perform services for a client and causes injury or potential injury to a client; or
(b) a lawyer engages in a pattern of neglect and causes injury or potential injury to a client.’ Standard 4.42.”
The panel then concluded its recommendation as follows:
“Based upon the findings of fact, conclusions of law, and the Standard listed above, a majority of the Hearing Panel recommends that the Respondent be suspended from the practice of law in the state of Kansas for a period of six months. The Hearing Panel is mindful of the Disciplinary Administrator’s recommendation for published censure, to which the Respondent did not voice an objection. However, a majority of the Hearing Panel believes that — based on the Standards listed above — the several violations found herein, based on evidence of misconduct which was not controverted, over a three-year period of time, justifies more serious results than a censure. The Hearing Panel further recommends that in order for the Respondent to be reinstated at the end of the six-month period, that the Respondent comply with the following terms and conditions:
“1. The Respondent immediately contact a psychologist and start psychotherapy as strongly recommended by Dr. Albott.
“2. The Respondent meet with the psychologist at least one time per month, continuing throughout the period of suspension.
“3. The Respondent sign an authorization and release of information, enabling the Disciplinary Administrator’s office to discuss his treatment with his psychologist.
"4. The Respondent attend, pay for, and successfully complete a Practical Skills continuing legal education program, as defined by Kan. Sup. Ct. R. 802A [2004 Kan. Ct. R. Annot. 613],
“5. The Respondent make full restitution to Jefferson County and provide proof to the Disciplinary Administrator’s office that full restitution has been made.
“6. The Respondent shall locate a member of the bar of the state of Kansas who is willing to supervise the Respondent’s practice upon reinstatement for at least one year. The practice supervisor must be approved by the Disciplinary Administrator’s office.
“7. The Respondent shall obtain professional liability insurance to be effective upon reinstatement.
“If the Respondent complies with the terms and conditions listed above, the Disciplinary Administrator’s office shall certify to the Kansas Supreme Court that the Respondent has met the conditions precedent to reinstatement and the Respondent should be reinstated subject to the following terms and conditions of probation.
“In the event the Respondent fails to comply with the terms and conditions set forth above, the Disciplinary Administrator’s office shall file a written request that the Respondent be required to undergo a reinstatement hearing, pursuant to Kan. Sup. Ct. R. 219 [2004 Kan. Ct. R. Annot. 312], prior to reinstatement.
“The Hearing Panel recommends that after the Respondent is reinstated into the practice of law that the Respondent comply with the following terms and conditions of probation, pursuant to Kan. Sup. Ct. R. 211(g) [2004 Kan. Ct. R. Annot. 275], for a period of one year:
“1. Psychological Treatment. The Respondent will continue his treatment with his psychologist and follow all treatment recommendations throughout the period of supervised probation unless, in his psychologist’s opinion, continued treatment is no longer necessary. The Respondent and his psychologist shall notify the Disciplinary Administrator in the event that tire Respondent discontinues treatment against the recommendation of the psychologist during the probationary period. The Respondent shall provide the Disciplinary Administrator’s office with quarterly reports from his psychologist regarding the treatment recommendations and the Respondent’s compliance with the treatment recommendations.
“2. Supervision. The Respondent shall allow the practice supervisor access to Iris client files, calendar, and trust account records. The Respondent shall comply with any requests made by the practice supervisor. During the period of probation, tire Respondent shall meet with the practice supervisor at least bi-weekly. The practice supervisor shall prepare a monthly report to the Disciplinary Administrator regarding the Respondent’s status on probation.
“3. Audits. Within thirty (30) days of the date of the Respondent’s reinstatement, the practice supervisor shall conduct an initial audit of die Respondent’s files. Three months after the completion of the first audit, the practice supervisor shall conduct a second audit. At the completion of the one-year supervised probation, the practice supervisor shall conduct a third audit. After each audit, the practice supervisor shall malee a report regarding the audit. If the practice supervisor discovers any violations of the Kansas Rules of Professional Conduct, the practice supervisor shall include such information in his report. The practice supervisor shall provide the Disciplinary Administrator and the Respondent with a copy of each audit report. The Respondent shall follow all recommendations and correct all deficiencies noted in the practice supervisor’s periodic audit reports.
“4. Office Procedures. Within ten days of his reinstatement, the Respondent shall file with the Disciplinary Administrator written office procedures designed to monitor the status, deadlines, and court appearances of all matters in which he has undertaken representation. The Respondent shall modify that procedure if directed to do so by the Disciplinary Administrator. The Respondent shall follow the written office procedure.
“5. Continued Cooperation. The Respondent shall continue to cooperate with the Disciplinary Administrator. If the Disciplinary Administrator requests any additional information, the Respondent shall timely provide such information.
“6. Additional Violations. The Respondent shall not violate the terms of his probation or the provisions of the Kansas Rules of Professional Conduct. In the event that the Respondent violates any of the terms of probation or any of the provisions of the Kansas Rules of Professional Conduct at any time during the probationary period, the Respondent shall immediately report such violation to the Disciplinary Administrator. The Disciplinary Administrator shall take immediate action as required by Kan. Sup. Ct. R. 211(g).”
Panel member E. Roger Horsey filed a concurring and dissenting opinion. He concurred in the findings of fact and conclusions of law, but recommended respondent be sanctioned by published censure.
Respondent has admitted the violations and has taken no exceptions to the panel’s final report.
We conclude that the findings and conclusions of the hearing panel are supported by clear and convincing evidence, and we adopt the findings and conclusions of the hearing panel. However, we do not believe the recommended discipline of supervised probation is realistic or workable in the circumstances in which the respondent presently finds himself.
We conclude that a 1-year suspension from the practice of law is an appropriate discipline in this case.
It Is Therefore Ordered that Jimmie A. Vanderbilt be suspended from the practice of law in the state of Kansas for a period of 1 year, effective the date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2004 Kan. Ct. R. Annot. 237).
It Is Further Ordered that respondent attend, pay for, and successfully complete a practical skills continuing legal education program, as defined by Kansas Supreme Court Rule 802A (2004 Kan. Ct. R. Annot. 613); make full restitution to Jefferson County; and obtain professional liability insurance to be effective upon his reinstatement to the practice of law.
It Is Further Ordered that respondent fully comply with Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301), and at the end of the 1-year suspension, the respondent will be reinstated upon furnishing proof of compliance with Rule 218 and the above conditions.
It Is Further Ordered that this opinion be published in the official Kansas Reports and the costs of these proceedings be assessed to the respondent.
Gernon, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
Gary Jones was terminated from his position as a police officer with the Kansas State University Police Department (KSU Police) for gross misconduct or conduct grossly unbecoming a state officer or employee pursuant to K.S.A. 75-2949f(a). In subsequent appeals, the Kansas Civil Service Board (Board) and the district court upheld the termination. The Court of Appeals reversed and remanded with instructions to reinstate Jones with back pay and benefits in Jones v. Kansas State University, 32 Kan. App. 2d 322, 325-26, 81 P.3d 1243 (2004). This court granted the Kansas State University’s (KSU) petition for review and has jurisdiction pursuant to K.S.A. 60-2101(b).
Gary F. Jones was employed as a police officer with the KSU Police beginning in January 1997. On August 26, 2001, Jones was riding with Student Security Officer Pharaoh Guice when he stopped a vehicle driven by Gretchen Esping for speeding.
Most of the traffic stop was recorded by a video camera in Jones’ police car. The videotape reflects that Esping pulled over approximately 6 feet from the curb, parallel to the curb but perpendicular to the marked parking spaces. Jones approached the vehicle, asked to see her driver’s license, and advised her that she was going at least 32 miles per hour in a 20 miles per hour zone. Jones ran a license check, which revealed that Esping’s license had been sus pended in March 2001. Jones relayed this information to Esping, who denied knowledge of the suspension. Jones told her that by law he had to write her a citation and could not let her drive the car but she could have someone drive the car home for her. When Jones told her that he had to make a criminal report, Esping became upset and started crying.
Jones returned to his car- to verify the suspension. At this point, Jones asked Guice to make sure that the stop was being videotaped because “this lady is gonna be a problem.” Jones then went back and advised Esping that the dispatcher had confirmed the suspension for the third time and asked Esping for her address. Esping, who was still crying, gave Jones her address and said that she lived at the end of the block. Esping told Jones that she wanted to know what court had suspended her license. Jones returned to his car to write out the traffic citation and to get that information for her. Upon returning to his car, Jones again told Guice, “I’m gonna let this run and run. I do not want that turned off for any reason. Any reason.”
Jones returned to Esping’s vehicle, asked Esping to sign the citation, and advised her of the court date. Esping told Jones that he would have to appear in court with her lawyer, and Jones asked if she was threatening him. Esping initially refused to sign the citation and tried to explain to Jones that she was never informed that her license had been suspended and that it was not suspended. Jones informed her that if she did not sign the citation he would have to put her in handcuffs and taire her to jail. Esping then asked Jones to drive her car home. Jones told her that he could not do that but that he would give her a ride home or she could walk home and he would make sure that her car did not get towed. After Jones repeatedly told Esping that signing the citation was not an admission of guilt, Esping finally signed and accepted the ticket.
Esping started crying again and asked Jones if he could follow her home, and he refused. After explaining, the ticket to her, Jones asked again if he could give her a ride home. She asked again if she could just take her car down to the comer to get her groceries to her home. Jones responded, “Okay. One second. One second. I want to tell you something. One second.” He walked back to the police car and said, “Kill the fights, kill all my fights.” This deactivated the camera, and nothing more of the stop was recorded. Later that night, Jones completed a report of the incident which provided in relevant part:
“At this time I informed the suspect that her license was suspended, and that I would issue her a notice to appear (citation # 6638) and she would be released at the scene, the suspect vehicle was legally parked at the time of the stop so the driver agreed to leave the vehicle where it was until she could have a friend drive her vehicle to her apartment building.”
Approximately a month later, Esping filed a complaint claiming that Jones threatened her or conducted himself in a manner that caused her to have concern for her safety. The KSU Police began an internal investigation of the traffic stop. Captain Charles Beck-om conducted the investigation and reviewed the videotape, the tape log, the in-car camera policy, and interviewed various witnesses, including two neighbors of Esping, Ahmed Elshahawi and Samir El-Zarkouny, and Esping, Guice, and Jones.
Esping told Captain Beckom that after ordering Guice to turn off the video camera, Jones said, “My wife is German and you and I are about the same age. . . . Tefi you what. You give us two minutes to get out of here and then you go park your car in front of your apartment and don’t drive it again until this is cleared up.” Guice verified that Jones told him to turn off the camera, spoke with Esping for about 10 seconds, and said something “to the effect of her doing what she wanted to do after he left the area.”
Jones told the investigator that he turned off the videotape for about 2 minutes because he did not want anyone to hear him telling Esping that “he was not going to watch her when they left” and so that the KSU Police would not use it against him for being a caring person. Jones also admitted that he went to Esping’s apartment later that day to tell her about the teletype reflecting the suspension of her driver’s license. He also went to her apartment about a month later to ask for a statement after he learned he was being investigated for the incident.
On December 13,2001, KSU Police Director Ronnie Grice sent a letter to KSU Director of Human Resources Gary Leitnaker requesting that Jones be terminated immediately because Jones knowingly submitted false information in his police report and also violated the in-car camera policy by turning off the camera before the traffic stop was terminated to intentionally prevent any recording of the conversation at the end of the stop. However, the investigation had concluded that insufficient evidence was presented to support Esping’s claim that Jones threatened her or conducted himself in a manner that caused her to have concern for her safety.
On December 14, 2001, Leitnaker sent Jones a letter informing him that the KSU Police requested his dismissal for the reason of gross misconduct or conduct grossly unbecoming a state officer or employee in violation of K.S.A. 75-2949f(a). Jones was advised that he could submit any information to Leitnaker on his behalf. After Leitnaker and Jones met on December 19, 2001, Leitnaker continued to recommend dismissal and informed Jones of his right to appeal to the KSU Classified Employee Peer Review Committee (PRC). The PRC, consisting of five classified employees from across the KSU campus, then conducted a hearing regarding Leitnaker’s recommendation.
After the January 8, 2002 hearing, the PRC unanimously concurred with the KSU Police findings and recommendation for dismissal in concluding that Jones did submit false information in a case report regarding this traffic stop and violated the in-car camera policy that states “every traffic stop shall be recorded until the stop is terminated.” Leitnaker dismissed Jones effective January 10, 2002, for reason of gross misconduct or conduct grossly unbecoming a state officer or employee and informed him of his right to appeal to the Board.
Jones filed a timely request for a hearing before the Board pursuant to K.S.A. 2003 Supp. 75-2949(f), and a hearing was held on May 21, 2002. Leitnaker, Grice, Beckom, and Guice testified on behalf of KSU Police. Leitnaker described his review of the recommendation to terminate Jones and the PRC process. On cross-examination, Leitnaker acknowledged that Jones had an Equal Employment Opportunity Commission (EEOC) charge pending at the time of his termination. Additionally, he testified that the KSU Police had attempted to terminate Jones in the past for falsifying his employment application, but the PRC had recom mended that he be given a second opportunity and be placed on probation for 1 year.
KSU Police Director Grice testified that the KSU Police had received a request from the municipal prosecutor regarding.the traffic stop that was made on August 26, 2001, by Jones. It took the officer in charge of that unit about a month to find the videotape of the stop because it had not been logged in and was on an 8-hour tape. Grice testified that the videotape and Jones’ report of the incident did not match; therefore an internal investigation was conducted which concluded that Jones had violated the KSU Police policy by turning off the camera and by falsifying his police report.
Grice explained that he requested termination in this case because Jones created an integrity issue by covering up something that he did wrong. As an officer with the KSU Police with a credibility or integrity issue, any report, citation, or documentation produced by Jones might be thoroughly questioned by the prosecutor in any case that he would submit paperwork.
Captain Beckom opined that the traffic stop was not terminated when the camera was turned off. Beckom testified that the car was not legally parked because it was parked parallel to the roadway across three parking spaces, and parking in that area is at 90 degrees to the curb. Beckom felt that termination was justified because he had a serious concern about Jones’ credibility. He reasoned that the last paragraph of the report was totally false as the car was not legally parked and the driver did not agree to let a friend drive the car. He explained that at most times this information would not be included in the report, and it was an intentional false statement to cover up something.
Guice testified that he did not consider the stop terminated when Jones told him to turn off the camera and Jones returned to Esping’s vehicle. Upon his return, Jones said that he told Esping she could do what she wanted after they left because she had groceries in the car. Later that night, Guice went back by the location and observed that Esping’s vehicle was legally parked near what he believed was her residence.
Jones testified that he had 17 years of law enforcement experience before beginning employment with the KSU Police in 1997. He said that he was targeted for termination at least 10 times while with KSU Police. Jones indicated that he had filed an earlier EEOC discrimination lawsuit against KSU Police which was settled with the agreement that the KSU Police would officially put in writing that he was a good police officer in good standing. He filed his second EEOC charge 8-9 months before the incident in this case, which dealt primarily with Lieutenant Richard Herman who acted as the spokesperson for the KSU Police at the PRC hearing.
Jones explained that he did not violate the in-car camera policy because the traffic stop was terminated when he gave her the ticket. He explained that he told Captain Beckom drat he had instructed Guice to turn off the camera because the traffic stop was terminated and that he was afraid that the next thing he was going to say to her, “I didn’t care,” referring to whether she moved the car, was going to be used against him.
Jones testified that he typed the report later that evening from memory. He did not intentionally state that the car was legally parked knowing it was illegally parked, but he was more concerned with what was going on with her and “how this would [a]ffect her and me.” Jones said that after the video camera was turned off he told Esping that he understood her plight but he could not legally let her drive in his presence. Esping agreed to let someone else take the car, but Jones concluded the conversation by saying he did not care what she did.
Jones admitted on cross-examination that the two most recent directors of the Riley County Police Department directed the KSU Police not to permit Jones to go off campus to assist with the Riley County Department. Prior to this testimony, the Board members had extensively questioned Jones about the nature of his EEOC complaints and his previous performance evaluations.
KSU Police Officer Timothy Schrog testified on Jones’ behalf and opined that a traffic stop is terminated when the violator signs the traffic ticket and has signed on the line that he or she will contact the court. At that point, the violator is free to leave, even if the officer told the motorist to wait a minute, because the officer no longer had a custodial stop.
At the conclusion of the hearing, the Board unanimously voted to uphold tire termination in concluding that Jones’ actions constituted misconduct or conduct grossly unbecoming a state officer or employee pursuant to K.S.A. 75-2949f(a). The Board reasoned that “the appointing authority considered the totality of circumstances in this matter and that his decision was reasonable and based on the best interests of the agency and the State of Kansas.”
Jones petitioned for judicial review, and die district court heard oral arguments on die case. Jones argued it was not gross misconduct to turn off the video camera regardless of whether the stop had been terminated because the KSU Police did not have any method in place for monitoring and enforcing that policy. Jones alleged that his report’s statement that Esping agreed to have a friend drive the car was not false because she told him that after the videotape was turned off. Jones also argued that it was highly debatable whether the car was legally parked and even if it was not, it was such a “meaningless detail” that it had nothing to do with the element of driving on a suspended license.
Jones further asserted that the KSU Police was seeking to terminate him because of his previous lawsuit and his pending EEOC charge and the Board improperly focused on the merits of these actions. Jones argued that no separate standard for gross misconduct for law enforcement officers exists under the statutes and KSU has essentially said that any smudge to the integrity of an officer renders that officer useless to the KSU Police.
In affirming the Board, the district court noted that the Board did not expressly find a violation of the in-car camera recording policy. However, the court concluded this finding was unnecessary to find evidence of gross misconduct or conduct grossly unbecoming a state officer and employee. The court reasoned that Jones’ actions and the issue of trust, and not a policy violation, were the principal issues. The court found that Jones intentionally shut off the recording and
“[w]hether, objectively, what was done ‘off camera’ was something great or small, the significant point is that [Jones] did not want his actions to be recorded and, while he earlier wanted to ensure that the tape was getting everything, to protect his interest in a somewhat difficult stop, he later acted to malee sure tire tape was stopped, also to protect his interest.”
The court also found that the record supported die Board’s finding that Jones included false information in his report relating to whether Esping’s car was legally parked. The court concluded that the Board applied the correct standard of review in determining that Jones’ termination was reasonable and that substantial evidence supported the Board’s determination.
Jones timely appealed, but his appeal was initially dismissed for failing to timely docket the appeal pursuant to Supreme Court Rule 5.051 (2003 Kan. Ct. R. Annot. 32). Jones’ motion to reinstate the appeal was granted.
A majority of the panel of the Court of Appeals reversed the district court. 32 Kan App. 2d at 314, 326. The majority first found that substantial competent evidence existed in the record to support the accusation that Jones erroneously characterized the vehicle as legally parked, but no evidence was presented that the error was intentional or that the inaccuracy should be characterized as a falsification. The majority also found that substantial evidence was presented that Jones technically violated the in-car camera policy in stopping the camera prior to the end of the “Esping ‘event.’ ” 32 Kan. App. 2d at 319-21.
In determining whether Jones’ actions constituted gross misconduct or conduct grossly unbecoming an officer under K.S.A. 75-2949f, the Court of Appeals majority first examined the legislative history of the Civil Service Act (CSA), K.S.A. 75-2925 et seq., including K.S.A. 75-2949f. As the legislature never defined these terms within the CSA, the majority compared the language in K.S.A. 75-2949f(a) to the language used in describing other grounds for discipline under our statutes and reviewed cases from other jurisdictions where an officer’s misconduct warranted dismissal. It ultimately adopted the definition of gross misconduct from the employment security statutes, K.S.A. 2002 Supp. 44-706(b)(1) (now K.S.A. 2003 Supp. 44-706[d][1]). 32 Kan. App. 2d at 323-25.
The Court of Appeals majority disagreed that the principal issue was one of trust and declined to create a special criteria or test for state-employed officers, reasoning that the statute should be uniformly construed and applied. The majority concluded that the Board and the district court erred in concluding that Jones’ actions were gross misconduct or conduct grossly unbecoming a state employee, “[particularly since Jones’ actions in erroneously stating facts in his incident report were not intentional and may have been mere negligence, and since Jones’ violation of the in-car camera policy was somewhat technical and dependent upon a disputed construction of the policy.” 32 Kan. App. 2d at 326.
Judge Malone wrote a dissenting opinion concluding that Jones’ actions constituted gross misconduct sufficient to support his termination as a police officer. The dissent found that Jones committed two serious violations of police department policy by intentionally turning off the video camera before the stop was terminated and by failing to log the videotape recording on the log-in sheet in an attempt to prevent it from being located. It noted that the purpose of the recording system is to ensure reliable documentation of police stops and Esping had filed a complaint about Jones’ conduct during the stop in this case. By turning off the camera, Jones destroyed evidence and unnecessarily exposed the KSU Police to charges of police misconduct. 32 Kan. App. 2d at 327.
The dissent further found that Jones filed a false report by stating that the vehicle was legally parked, and upon consideration of Jones’ actions, “it is hard to believe this was an unintentional misstatement of fact.” 32 Kan. App. 2d at 327. The report was also false because it failed to state that Jones turned off the camera and told Esping that she could drive home. It found that filing a false report is a particularly serious offense for a police officer because prosecutors regularly inquire if there are any credibility or integrity problems with officers that will arise at trial. The dissent agreed with the district court’s assessment that Jones was terminated because of a question of trust and concluded that Jones committed “misconduct striking at the very essence of law enforcement” which constituted gross misconduct sufficient to support his termination as a police officer. 32 Kan. App. 2d at 328.
KSU petitions for review arguing “substantial competent evidence supports the decision of the Board and the Court of Appeals incorrectly interpreted the phrase ‘gross misconduct or conduct grossly unbecoming a state officer or employee’ ” under K.S.A. 75-2949f(a).
Standard of Review
K.S.A. 2003 Supp. 75-2949(a) provides that an appointing authority may dismiss any permanent employee in the classified service when it considers that the good of the service will be served thereby. When a permanent employee is finally dismissed by the appointing authority, the employee may request a hearing from the Board to determine whether the appointing authority acted reasonably in taking such action under K.S.A. 2003 Supp. 75-2949(f).
The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., is applicable to appeals from orders of the Board. K.S.A. 75-2929h. K.S.A. 77-621(c) sets forth the following applicable scope of review:
“(4) the agency has erroneously interpreted or applied the law;
....
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
The party asserting the agency’s action is invalid bears the burden of proving the invalidity. K.S.A. 77-621(a)(1).
Parties that appeal an agency action to the district court pursuant to the KJRA may appeal the district court decision to the appellate courts, just as parties do in other civil cases. K.S.A. 77-623. When reviewing the district court’s decision reviewing an agency action, the appellate court must first determine if the district court observed the requirements and restrictions placed upon it. R then makes the same review of the administrative agency’s action as did the district court. Connelly v. Kansas Highway Patrol, 271 Kan. 944, 964, 26 P.3d 1246 (2001), cert. denied 534 U.S. 1081 (2002).
In reviewing an agency action, the appellate court is limited to ascertaining from the record if substantial competent evidence supports the agency findings. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issue can reasonably be resolved. Winston v. Kansas Dept. of SRS, 274 Kan. 396, 404, 49 P.3d 1274, cert. denied 537 U.S. 1088 (2002).
The appellate court must accept as true the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the factfinder and must disregard any conflicting evidence or other inferences. A rebuttable presumption of validity attaches to all actions of an administrative agency, and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency’s actions. Connelly, 271 Kan. at 965.
However, when a party disputes the district court’s interpretation of a statute, the issue raised is a question of law, and the appellate court’s scope of review is unlimited. Kansas Dept. of Transportation v. Humphreys, 266 Kan. 179, 182, 967 P.2d 759 (1998).
Evidence Supporting the Board’s Decision
KSU argues that substantial competent evidence supports the Board’s findings that Jones’ actions constituted gross misconduct or conduct grossly unbecoming a state officer or employee under K.S.A. 79-2949f. It contends that the Court of Appeals majority reweighed the facts and substituted its own judgment for that of the Board, the PRC, and the appointing authority. Jones counters that the Court of Appeals majority correctly focused on the lack of evidence of intentional falsification. He contends that KSU is trying to rewrite the Board’s findings of fact in an attempt to include disputed facts not decided in its favor.
The PRC unanimously concurred with the KSU Police findings and recommendation for dismissal on the grounds that Jones violated KSU Police policy by submitting false information in a case report regarding this traffic stop and violating the in-car camera policy that states “every traffic stop shall be recorded until the stop is terminated.”
Without explicitly finding that Jones violated these policies, the Board concluded that Jones’ actions that day constituted gross misconduct or conduct grossly unbecoming a state officer or employee. This finding of gross misconduct, coupled with the specific factual findings discussed below, strongly suggests that the Board found that Jones violated both policies. As such, our analysis will focus first on whether substantial competent evidence supports these factual findings.
a. Submission of False Information in Police Report
KSU Police Policy and Procedure § 12.3.24 provides: “An officer shall not make or submit any false or inaccurate reports or knowingly enter or cause to be entered into any departmental books, records or reports, any inaccurate, false or improper information.”
Relevant to this issue, the Board made the following relevant factual findings:
“8. Mr. Jones then returned to Ms. Esping’s car and informed her that he didn’t care what she did with her car once he left. He then returned to the patrol car and departed the area with Ms. Esping remaining.
....
“11. Mr. Jones stated in his report that Ms. Esping’s vehicle was legally parked at the time of the stop and that the driver had agreed to leave the vehicle where it was until a friend could return the vehicle to her apartment building. Ms. Esping’s vehicle was not legally parked at the time of the traffic stop.
“12. The Manhattan city prosecutor requested from the KSU Police Department, a copy of tlie video and audiotape of the traffic stop of Ms. Esping. In complying with this request, the KSU Police Department discovered that Mr. Jones had turned off the in-car camera prior to the completion of the traffic stop and that his report differed from the information on the tape regarding whether Ms. Esping’s vehicle was legally parked at the time of the traffic stop.”
The videotape of the stop clearly shows that the car was illegally parked 6 feet from the curb and perpendicular to marked parldng spaces, but the written report indicates that it was legally parked. We conclude that substantial competent evidence supports the Board’s finding that Esping’s vehicle was illegally parked at the time of the traffic stop and that Jones indicated that it was legally parked in his report.
The Board did not explicitly find that Jones intentionally falsified his report or that he violated this policy. Where an administrative agency’s findings of fact and conclusions of law are inadequate to disclose the controlling facts or the basis of the agency’s findings, meaningful appellate review is precluded. Citizens’ Utility Ratepayer Bd. v. Kansas Corporation Comm’n, 28 Kan. App. 2d 313, 317, 16 P.3d 319 (2000), rev. denied 271 Kan. 1035 (2001). The appropriate remedy for inadequate findings in a final order of an administrative agency is to remand for additional findings of fact and conclusions of law. Gas Service Co. v. Kansas Corporation Commission, 4 Kan. App. 2d 623, 626, 609 P.2d 1157, rev. denied 228 Kan. 806 (1980).
However, we find it reasonable to conclude that the Board believed the policy was violated and the misstatement in the report was intentional in concluding that Jones committed gross misconduct and conduct grossly unbecoming a state officer and employee and by finding that the appointing authority’s decision, which found the policy was violated, was reasonable. As such, remand is unnecessary for resolution of this issue.
The Court of Appeals majority concluded that no evidence was presented that Jones intentionally falsified the report so as to warrant a finding of gross misconduct. However, intent may be shown by circumstantial evidence and does not need to be directly proven. State v. Whitesell, 270 Kan. 259, 275, 13 P.3d 887 (2000). In this case, circumstantial evidence was presented to support the conclusion that Jones intentionally indicated that the vehicle was legally parked.
First, the videotape clearly shows that Esping’s car was parked approximately 6 feet from the curb, perpendicular to marked parking spaces. Second, Jones acknowledges the car was illegally parked in the video by offering to put his card on the car so that it would not be towed. Third, Jones gave inconsistent explanations for the inaccuracy in his report, saying it was legally parked because it was a Saturday, he was not thinking about it when he wrote the report, or the status of the car was “meaningless detail.” Fourth, Jones failed to log in the stop in the videotape recording log, which made locating the videotaped stop more difficult. Fifth, Captain Beckom testified that at most times this information, i.e., that the car was legally parked and she agreed to leave it until friends would pick it up, would not be included in the report and thus opined that it was an intentional false statement to cover up something. Finally, Jones admitted that he turned off the video camera to hide the fact that he was going to tell Esping that she could do whatever she wanted after he left. Based on these actions, we agree with Judge Malone’s dissenting conclusion that “it is hard to believe this was an unintentional misstatement of fact.”
Both the Court of Appeals and this court are charged only with determining if the Board applied the correct standard of review and if its conclusion that the appointing authority’s actions were reasonable and supported by substantial competent evidence. As the circumstantial evidence described above supported a finding that Jones intentionally falsified the report, the Court of Appeals majority mistakenly disregarded its limited standard of review in this case by reweighing the evidence and substituting its own judgment for that of the Board. Although Jones attempts to argue that this court may not look outside the findings of fact made by the Board, this court must review the evidence presented before the Board to determine whether its findings were supported by substantial competent evidence. Contrary to the Court of Appeals majority, substantial competent evidence supports the finding that Jones intentionally falsified the police report.
b. In-Car Camera Policy
The KSU Police policy regarding in-car camera recording systems, General Order 62.1.18, § B, Operating Procedures, provides in relevant part:
“5. Officers shall record all traffic stops and pursuits, along with major accidents, where practical. ... No officer may terminate recording an event of this type, until the event has been concluded.
“6. Every traffic stop shall be recorded until the stop is terminated.
“7. Incidents that generate reports will be recorded on the MVR tape log sheet.”
Although the Board did not specifically find that the policy was violated, it did note in its factual findings that “the KSU Police Department discovered that Mr. Jones had turned off the in-car camera prior to the completion of the traffic stop.”
Jones does not dispute that he told Esping to wait, that he ordered the video camera to be turned off, and that he returned to her car and told Esping he did not care what she did after he left. Captain Beckom and Pharaoh Guice both testified that the traffic stop was not concluded when Jones ordered the camera to be turned off. Although Jones presented testimony that tire stop was concluded, it is not the function of this court to reweigh this evidence. See In re Tax Appeal of ANR Pipeline Co., 276 Kan. 702, 723, 79 P.3d 751 (2003).
The Court of Appeals majority begrudgingly admits that the opinion testimony of the KSU witnesses provided substantial competent evidence that Jones “technically” violated the policy. 32 Kan. App. 2d at 320-21. It appears that the majority attempts to downplay this violation as a technicality in an attempt to support its ultimate conclusion that Jones’ conduct was not “gross.” The majority seemingly overlooks the fact that Jones admitted that he turned off the camera in order to protect himself from the consequences of what he was planning on telling Esping. Regardless of its characterization, we find substantial competent evidence was presented that Jones violated the policy by ordering the in-car camera to be turned off prior to the termination of the traffic stop.
As substantial competent evidence supports the two grounds for termination, our next relevant inquiiy is whether these actions constituted gross misconduct or conduct grossly unbecoming a state officer or employee under K.S.A. 75-2949f(a).
Interpretation of K.S.A. 75-2949f(a)
KSU argues that the Court of Appeals misapplied K.S.A. 75-2949f(a) by interpreting the terms “gross misconduct” and “conduct grossly unbecoming a state officer” and thereby making a single standard applicable to all cases. It contends that this approach usurps the role delegated to the Board by the legislature to determine the reasonableness of the employer’s decision on a case-by-case basis. Jones argues the definition provided by the Court of Appeals majority is entirely reasonable and urges this court to adopt the Court of Appeals’ reasoning on this issue in its entirety.
As the legislature has not expressly defined these terms, this issue involves the interpretation of a statute that is a question of law over which appellate courts exercise unlimited review. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
The fundamental rule of statutory construction is that tire intent of the legislature governs if that intent can be ascertained. In determining legislative intent, courts are not limited to consideration of the language used in the statute but may look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute might have under the various constructions suggested. In construing statutes, the legislative intent is to be determined from a general consideration of the entire act. Board of Lincoln County Comm'rs v. Nielander, 275 Kan. 257, 265, 62 P.3d 247 (2003).
a. Legislative History of K.S.A. 75-2949f
The Civil Service Act (CSA), K.S.A. 75-2925 et seq., was originally enacted in 1941, and its general purpose is to “establish a system of personnel administration that meets the social, economic and program needs of the people of the state of Kansas as these needs now or in the future may be established.” K.S.A. 75-2925. This system was intended to allow the State to “recruit, select, develop and maintain an effective and responsible work force . . . .” K.S.A. 75-2925. It was designed so that all employment decisions “shall be made without regard to race, national origin or ancestry, religion, political affiliation, or other nonmerit factors” but would “be based on merit principles and fitness to perform the work required and shall provide fair and equal opportunity for public service.” K.S.A. 75-2925
K.S.A. 75-2949d provides that permanent classified employees may be dismissed because of deficiencies in work performance as set forth in K.S.A. 75-2949e or because of “personal conduct detrimental to the state service” as set forth in K.S.A. 75-2949f. K.S.A. 75-2949f sets forth a nonexclusive list of the “[g]rounds for dismissal, demotion or suspension of a permanent employee for per sonal conduct detrimental to the state service.” In this case, Jones was terminated for violating K.S.A. 75-2949f(a): “Gross misconduct or conduct grossly unbecoming a state officer or employee.”
K.S.A. 75-2949f was not part of the original CSA. Prior to 1978, K. S.A. 75-2949 provided that the appointing authority was authorized to dismiss a permanent classified employee after consideration “that the good of the service will be served thereby, and for disciplinary purposes may suspend . . . but no permanent employee in the classified service shall be dismissed for political, religious or racial reasons.” K.S.A. 75-2949 (Weeks 1977).
In 1978, the legislature enacted K.S.A. 75-2949b, dealing with procedures prior to demotion or suspension, suspension without notice and grounds for disciplinary action, and subsection (c) provided 16 situations in which disciplinary action could be undertaken, including when an employee: “(1) Was found guilty of gross misconduct or conduct unbecoming a state officer or employee.” L. 1978, ch. 332, sec. 19.
The legislature repealed this statute in 1981 and enacted K.S.A. 75-2949f. Senate Bills 416 and 417 were proposed to amend the CSA as it pertained to disciplinary actions before the Board. See L. 1981, chs. 334 and 335. The February 23, 1981, Senate Committee on Federal and State Affairs Minutes indicate that Art Griggs of the Department of Administration presented a request for amendments to the CSA relating to disciplinary actions and appeals to the Board, which again included the “[g]ross misconduct or conduct unbecoming a state officer or employee” language at issue in this case under K.S.A. 75-2949f(a).
In a February 16, 1981, Memorandum to the Federal and State Affairs Committee, Norman Hanson, Director of Personnel Services of the Department of Administration, explained the reasoning for the proposed amendments in relevant part:
“The sections of tire Civil Service Act pertaining to dismissals, suspensions, and demotions of permanent state employees, and appeals to the State Civil Service Board, were extensively revised in 1973.
“State administrators and state employees have had difficulty understanding these sections of the Civil Service Act.
“We are proposing amendment of these sections this year, with the principal objective of clarifying the language and, thus, making it easier for state agencies and state employees to know their rights and responsibilities.” Minutes, Sen. Comm, on Fed. and State Affairs, February 23, 1981.
At the March 24,1981, Senate Committee on Federal and State Affairs Hearing, Griggs went over S.B. 417 section by section. Section 5 related to the statute at issue in this case, and the typed notes next to a copy of this section state: “New Sec. 5 replaces K.S.A. 1980 Supp. 75-2949b. These are the same 16 examples listed in present law of reasons for disciplinary action for personal conduct detrimental to the state service. Some of the examples are reworded.” Minutes, Sen. Comm, on Fed. and State Affairs, March 24,1981; see L. 1981, ch. 334, sec. 5. Nothing in the legislative history explains why the examples were reworded.
In 1985, the legislature amended K.S.A. 75-2949f(a) to state: “Gross misconduct or conduct grossly unbecoming a state officer or employee.” L. 1985, ch. 276, sec. 7(a). The 1985 legislature also added what are now subsections (q) and (r), which allow disciplinary actions for “gross carelessness or gross negligence” or “grossly improper use of state property.” L. 1985, ch. 276, sec. 7(q), (r).
Once again, the legislative history provides little guidance as to why the term “grossly” was added to the statute. In a February 6, 1985, Memorandum to the House Ways and Means Committee, Griggs briefly described H.B. 2125, which included the addition of the term “grossly” to conduct unbecoming a state officer or employee, as modifying several CSA statutes and related personnel statutes. He indicated only that “[t]he majority of the changes were suggested by the Division of Personnel Services and constitute minor revisions.” Minutes, House Ways and Means Comm., February 11,1985. Thus, the legislative history provides this court little guidance in defining these terms.
b. Definition Adopted by Court of Appeals
The terms “gross misconduct” and “conduct grossly unbecoming a state officer or employee” have not been defined by the legislature in this context, nor were they defined by KSU, die PRC, the Board, or the district court, all of which simply concluded that Jones’ actions constituted gross misconduct or conduct grossly unbecoming a state officer or employee. The Board made this determination by examining the totality of the circumstances. The Court of Appeals majority opinion was the first to adopt a specific definition for these terms.
In reviewing the history of the statute, the majority noted:
“K.S.A. 75-2949f was added after this court’s decision in Swezey v. State Department of Social & Rehabilitation Services, 1 Kan. App. 2d 94, 562 P.2d 117 (1977). In Swezey, this court held:
‘Legal cause for dismissal exists if the facts disclose the employee’s conduct is of a substantial nature and directly impairs the efficiency of the public service, but there must be a real and substantial relation between the employee’s conduct and the efficient operation of the public service; otherwise, legal cause is not present.’ 1 Kan. App. 2d at 100.
By thereafter enacting K.S.A. 75-2949f, this court subsequently concluded the legislature intended to establish a category of conduct that is per se cause for discipline, obviating the need for the Board to make a case-by-case determination whether there was direct impairment of the public service. Sanstra v. Kansas Highway Patrol, 15 Kan. App. 2d 148, 151, 804 P.2d 1009, rev. denied 248 Kan. 996 (1991). At no time thereafter has the legislature specifically defined ‘gross misconduct’ or ‘conduct grossly unbecoming’ within the CSA; in fact, the terms ‘gross’ and ‘grossly’ now appear throughout the statute without specific definitions.” 32 Kan. App. 2d at 322.
The majority ultimately adopted the definition of gross misconduct provided now in K.S.A. 2003 Supp. 44-706(d)(l) relating to disqualification from unemployment benefits:
“We conclude that, for purposes of K.S.A. 75-2949f(a), ordinary misconduct is to be distinguished from gross misconduct, and conduct unbecoming an officer is to be distinguished from conduct ‘grossly’ unbecoming an officer. Particularly since the legislature concluded that the addition of ‘grossly’ was worthy of a specific amendment in 1985, we must conclude that insertion of such terms in qualifying the conduct justifying dismissal was not meaningless and should not be disregarded. See Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992). Although we decline to establish a general rule that would serve to define ‘gross misconduct’ in every case, we believe that the legislature intended that ‘gross’ and ‘grossly’ in the language of K.S.A. 75-2949f(a) mean something significantly more than ordinary misconduct. Notwithstanding our refusal to provide a missing statutory definition for all purposes, we are convinced that in order for misconduct to be ‘gross,’ it must be aggravated, extreme, or wanton in nature, evincing a knowing and reckless disregard for the rules, policies, or other standards of appropriate behavior.” 32 Kan. App. 2d at 325.
While the majority opinion specifically declined to establish a general rule, it essentially did just that by defining the term gross misconduct. However, the Court of Appeals correctly points out that the legislature intended to establish per se causes for discipline and defining the terms merely provides the Board with guidance in differentiating between ordinary misconduct and gross misconduct in the realm of the Kansas Civil Service statutes. However, as discussed below, we decline to adopt a single definition but rather employ several methods to aid in our interpretation of the statute.
The Court of Appeals reliance solely upon K.S.A. 2002 Supp. 44-706(b)(1) (now K.S.A. 2003 Supp. 44-706[d][1]) as providing a definition is misplaced. K.S.A. 2003 Supp. 44-706(d)(1) provides in relevant part:
“(d) If the individual has been discharged for misconduct connected with the individual’s work . . . [and] is discharged for gross misconduct . . . such individual shall be disqualified for benefits . . . [and] all wage credits attributable to the employment from which the individual is discharged for gross misconduct . . . shall be canceled.
“(1) For the purposes of this subsection (d), ‘misconduct is defined as aviolation of a duty or obligation reasonably owed the employer as a condition of employment. The term ‘gross misconduct’ as used in this subsection (d) shall be construed to mean conduct evincing extreme, willful or wanton misconduct as defined by this subsection (d).”
Significant differences exist between the CSA and the Employment Security Law, K.S.A. 44-701 et seq. The two statutory schemes are enforced by different agencies, and the policies behind the two acts differ significantly. While the CSA is designed to balance the rights of state employees to employment decisions based on merit against the need for the State to maintain an efficient workforce to carry out government functions, the Employment Security Law was designed to protect individuals and the public good from the impact of involuntary unemployment. See K.S.A. 44-702; K.S.A. 75-2925.
If the legislature had intended this definition to apply under K.S.A. 75-2949f, it could have used the definition or, at the very least, referenced the definition now set forth in K.S.A. 2003 Supp. 44-706(d)(1). Moreover, this definition overlooks the definition of “conduct grossly unbecoming a state officer or employee.” We conclude that tire Court of Appeals improperly interpreted K.S.A. 75-2949f by applying this definition of gross misconduct from tire Employment Security Law.
The terms “gross misconduct” and “conduct grossly unbecoming a state officer or employee” were not specifically defined because their meanings within the context of legislation involving state employees are not unfamiliar. For a number of years, these terms have provided guidance to state employers and employees. Their meanings are perhaps similar to the conduct suggested by the definition set forth in K.S.A. 2003 Supp. 44-706(d)(1) but not as rigid or narrow as suggested by tire Court of Appeals. The meanings of these terms are best defined in the dictionary and within the context of K.S.A. 75-2949(f) under the totality of the circumstances.
First, the dictionary defines “gross” as “glaringly noticeable usually because of inexcusable badness or objectionableness.” Webster’s New Collegiate Dictionary 507 (1973). Black’s Law Dictionary 702 (6th ed. 1990), defines “gross” as “[o]ut of all measure; beyond allowance; flagrant; shameful; as a gross dereliction of duty, a gross injustice, gross carelessness or negligence. . . . Such conduct as is not to be excused.” Misconduct is defined as “[a] transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior.” Black’s Law Dictionary 999 (6th ed. 1990).
Second, the statutory construction doctrine of noscitur a sociis, which literally means “it is known from its associates,” is an ancient and well known maxim that is a common sense aid to the construction of doubtful language. This doctrine may be applied when the meaning of a word or phrase might be obscure or doubtful when considered in isolation to clarify or ascertain by reference to those words or phrases with which it is associated. When taken in context, a word may have a broader or narrower meaning than it might have if used alone. State v. Zabrinas, 271 Kan. 422, 432, 24 P.3d 77 (2001).
Other grounds for discipline listed under K.S.A. 75-2949f include a criminal conviction; immoral conduct; willful abuse or misappropriation of state funds, materials, properly, or equipment; making a false statement of material fact in the employee’s application for employment or position description; participation in any action that would in any way seriously disrupt or disturb the normal operation of the agency, institution, department, or any other segment of state government; trespassing on the property of any state official or employee for the purpose of harassing or forcing dialogue or discussion from the occupants or owners of such property; willful damage to or destruction of state property; willful endangerment of the lives or property of others, or both; possession of unauthorized firearms or other lethal weapons while on the job; performing duties in a brutal manner, or mistreating, neglecting, or abusing a patient or resident or other person in the employee’s care; refusal to accept a reasonable and proper assignment from an authorized supervisor (insubordination); being under the influence of alcohol or drugs while on the job; knowingly releasing confidential information from official records; use of the employee’s state position, use of the employee’s time on the state job or use of state property or facilities by the employee in connection with a political campaign; exhibiting other personal conduct detrimental to state service which could cause undue disruption of work or endanger the safety of persons or property of others, as may be determined by the appointing authority; gross carelessness or gross negligence; grossly improper use of state property; and sexual harassment arising out of or in connection with employment. K.S.A. 75-2949f(b)-(s).
Finally, review of what other actions have constituted gross misconduct is helpful to this analysis. We note that while the Court of Appeals cited several cases from other jurisdictions where officers committed much more egregious acts which warranted dismissal, only one of those cases involved the term “gross misconduct.” See City of Minneapolis v. Moe, 450 N.W.2d 367, 370-71 (Minn. App. 1990). As such, the persuasiveness of those cases is minimal.
The following cases provide some guidance as to what other courts have considered to constitute gross misconduct. See De partment of Employment v. Owens, 75 Md. App. 472, 479, 541 A.2d 1324 (1988) (gross misconduct for employee to threaten to Mil his supervisor); Stafne v. City of Center City, unpublished opinion, 1998 WL 778931 (Minn. App. 1998), rev. denied January 21, 1999 (gross misconduct for city maintenance worker to operate a city vehicle without a valid driver s license); In re Claim of Barresi, 232 App. Div. 2d 714, 648 N.Y.S.2d 179 (1996) (officer who misplaced his personally owned revolver and could not locate it for over a year constituted gross misconduct); Bomar v. Tenn. Department of Mental Health, unpublished opinion, 2000 WL 146369 (Tenn. App. 2000) (gross misconduct or conduct unbecoming a state officer for restraining a 7-year-old patient in an abusive manner); Roach v. Regional Jail Authority, 198 W. Va. 694, 482 S.E.2d 679 (1996) (gross misconduct for correctional officer to watch a female inmate use the toilet in her cell and fail to secure a door to the central control room).
After examining the definitions and grounds for discipline set forth above, it is clear that the legislature’s use of the words “gross” and “grossly” in the statute signified that it required something significantly more than ordinary misconduct. All of the grounds for discipline are of a serious or extreme nature, and the actions are generally intentional or willful. When reviewing tire cases involving gross misconduct, it appears that the actions giving rise to termination were more egregious than tiróse committed by Jones in this case.
However, the analysis does not end there. The next issue we must consider is whether his conduct should be viewed in isolation or under the totality of the circumstances including the effect that his actions had on his ability to perform his job. The Court of Appeals refused to consider how the misconduct reflected upon Jones’ credibility as a state officer or employee.
d. Uniform Application of the Statute
The Court of Appeals majority opined that if it looked to how the officer’s misconduct affected his credibility, tiren it would have to create a special criteria or test based upon trust for state-em ployed police officers. This approach would prevent tire statute from being uniformly construed and applied. We disagree.
K.S.A. 75-2949f lists grounds for personal conduct detrimental to state service. As the legislature does not define the terms gross misconduct or conduct grossly unbecoming a state officer or employee, the appointing authority must decide on a case-by-case basis whether the particular misconduct was “gross.” In making that determination, we believe the appointing authority should have the right to consider the totality of the circumstances in determining the severity of the misconduct, which would include not only the specific actions but the ramifications of those actions on the state officer or employee’s ability to perform his or her duties. As the totality of the circumstances must be examined no matter what branch of state service is involved, the statute is still being uniformly applied. It simply means that different factors would be more or less relevant depending on what type of state service is being considered. In this case, tire manner in which Jones’ conduct affected his credibility was but one factor to consider in determining whether his conduct should be characterized as gross misconduct or conduct grossly unbecoming a state officer or employee.
Interestingly, the Court of Appeals majority cites Moe, 450 N.W.2d at 370-71, in which the Minnesota Court of Appeals found that a police officer’s felonious possession of cocaine constituted gross misconduct in light of the nature of his position. The court focused on the issues of trust and integrity as it related to the misconduct:
“The image of integrity and trust is essential to the performance of a police officer’s duties. There must be public confidence in law enforcement, and to ignore felonious possession of cocaine by a police officer could only serve to undermine public confidence in that office.
“This is a time in our society when the scourge of cocaine is running rampant in many parts of our country. We cannot be blind to society’s concern about the adverse influence of cocaine in our midst.
“To some, the result to Moe might seem harsh. He is redirecting his life and that is commendable, but his efforts to rehabilitate are irrelevant to the issue of good cause to discharge. The issue here is the integrity of the police department and under our scope of review we must affirm.” 450 N.W.2d at 370.
Turning back to this case, the Court of Appeals majority should have considered the totality of the circumstances, including the effect on Jones’ integrity and credibility, in determining whether he committed gross misconduct or conduct grossly unbecoming a state officer. As discussed above, substantial competent evidence supported the Board’s findings that Jones turned off the in-car camera prior to the termination of the stop and submitted a report which falsely indicated that Esping’s car was legally parked. By turning off the camera, Jones destroyed evidence and unnecessarily exposed the KSU Police to Esping’s charges of police misconduct. Jones sought merely to protect his own interests, by first ordering the camera to remain on when the stop appeared to be difficult and then by ordering the camera to be turned off so his actions could not be used against him by the KSU Police. He submitted a false report and failed to log in the videotaped stop making it more difficult for the videotape to be located during the investigation.
While the end result, allowing Esping to drive her car a short distance without a license, does not appear to be a major offense, the ramifications of Jones’ actions seriously affected his credibility and integrity as a KSU Police officer. Under the circumstances of this case, we conclude that the Court of Appeals majority improperly substituted its judgment for that of the Board. Substantial competent evidence supports the Board’s conclusion that Jones’ actions constituted gross misconduct or conduct grossly unbecoming a state officer and employee sufficient to support his termination as a KSU Police officer.
Judgment of the Court of Appeals is reversed. Judgment of the district court affirming the Board’s conclusion upholding Jones’ termination is affirmed. | [
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Per Curiam:
The questions presented for decision in this case are all determinable by the application of familiar principles of law and rules of procedure.
, The action in the city court was a statutory action for damages and for attorney’s fees, based upon' the negligence of the defendant in failing to equip one of its engines with proper appliances to prevent the escape of fire. The breaking in upon, and the disturbance of the quietude of, the plaintiff’s possession of land was not the gist of' the action at all. True, the bill of particulars states that the plaintiff was “possessed” of the real estate in question, but it is perfectly manifest that possession was not relied upon as an essential element of the cause of action. The action not being one in the nature of trespass quare clausum fregit at the common law (Wilkins v. Lee, 73 Kan. 321, 85 Pac. 140) the city court had jurisdiction, and the district court acquired jurisdiction by the appeal.
The method of proving damages contended for by the defendant is correct, and it would have been more consonant with good practice if it had been followed exclusively; but as applied to the facts of this case it borders upon the theoretical. Since the burned area seems to have been of the same value per acre before the fire as the remainder of the land, the injury was in fact confined to the burned portion, and, as one witness expressed it, to get the damage to the entire tract you would simply have to distribute the damage to the burned part over the remainder of the land.
The court properly rejected the evidence whereby it was sought to compare the grass on the plaintiff’s land with that growing upon other people’s land, because it would have opened up too large, a field of collateral inquiry.
The abstract furnishes no evidence and no statement relating to evidence upon which the fourth instruction requested by the defendant might have been based. • The sixth requested instruction is covered by the instructions given.
The judgment of the district court is affirmed. | [
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Per Curiam:
This action was brought by John G. Meek to recover damages from the Metropolitan Street-railway Company for personal injuries alleged to have been sustained by him while riding in a street-car of defendant. The car, running at a speed of about three miles an hour, ran into one just ahead of it going in the same direction, and plaintiff claims that the resulting jar injured his back and kidneys.
Under the testimony there was a fair question of fact as to whether he was really hurt by the collision, and it was settled by a verdict in favor of the defendant.
The inquiry as to the plaintiff’s ability to give bond for costs, about which complaint is made, could not have been prejudicial, especially after the full examination on the same subject which had been previously made by both parties.
The hypothetical questions objected to were properly allowed. (Commercial Travelers v. Barnes, 75 Kan. 720, 90 Pac. 293.)
No error was committed in excluding the question propounded to plaintiff: whether the conductor asked him to write his name on a slip of paper; nor do we find any good reason to complain of the rulings of the court in instructing the jury.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Graves, J.:
Do the foregoing facts show the defendant, the Howard Mills Company, to be a public corporation having power to exercise the right of eminent domain? This is the question presented. The defendant insists that this question is answered in its favor by the statute of this state. In support of its claim reference is made to various statutes relating to mills, among which is an act that took effect June 1, 1863, and is still in force, now being chapter 65 of the General Statutes of 1901. Only the first section of this act is given in the brief of the defendant, but the provisions of the chapter as a whole so clearly indicate the class and character of the mills to which the act was intended to apply that it will be given in full. It reads:
“An act relating to mills and millers.
“Be it enacted, by the Legislature of the State of Kansas :
“Section 1. That all water, steam, wind or other mills whose owners or occupiers grind or offer to grind grain for toll or pay, are hereby declared public mills.
“Sec. 2. All public mills shall grind for‘customers, in turn, as the grain shall be brought in, and as well as the condition of the mill will permit.
“Sec. 3. That the owner or occupier of a public mill shall be accountable for the safe-keeping of all grain received for the purpose of being ground, and also for the articles, in which such grain was received, and shall deliver the same, or the flour, meal, malt or other material ordered to be made from such grain, together with the articles in which it was received, to the owners thereof or'their agent, whenever called for.
“Sec. 4. That the owner or occupier of a public mill shall not be liable for the loss of any grain so received, nor for the articles in which it was received, unless said articles containing and accompanying such grain be branded or marked with the initials and full surname of the owner thereof, nor-for losses that may happen without the fault or neglect of the said owner or occupier, nor if by unavoidable accidents.
“Sec. 5. That the owner or occupier of a public mill shall while receiving grain to be ground give due attendance to his customers, and assist in unloading grain and loading the material made therefrom, when ground and demanded.
“Sec. 6. There shall always be kept at. a public mill, by the owner and occupier thereof, a half-bushel and peck measure, tried and sealed by the proper authorities, and also proper toll-dishes for the same; and shall keep posted up, in a conspicuous place in their mill, the rates of toll.
“Sec. 7. Every owner or occupier of a public mill who shall desire to convert the same into a private mill shall give at least thirty days’ notice of such intention by a proper advertisement, posted up in a conspicuous place in such mill.
“Sec. 8. That if any owner or occupier of any mill, or their representatives, agent or miller, shall violate any of the provisions of this act, they shall after due conviction thereof before any court having jurisdiction of the same be fined, for every such offense, in a sum not exceeding twenty dollars, at the discretion of the court, with costs for prosecution; said fine to be paid, one-fourth to the party aggrieved, and the balance into the fund for common schools, and moreover be liable at the suit of the party for damages.” (Gen. Stat. 1901, §§ 4085-4092.)
Those familiar with the conditions existing when this law was enacted will remember the practices of mill owners which created the occasion for its passage. It will also be recalled that in those days the power of the legislature to confer the right of eminent domain upon or authorize taxation in aid of railroad corporations was earnestly denied by eminent citizens of the state. The line where the right of a private citizen to hold and enjoy his property ended and the right of a corporation to appropriate it for its purposes began was more closely and jealously guarded then than in later years. It was even doubted, when this statute was enacted, whether the legislature had the power, to regulate grist-mills (then owned almost exclusively by private individuals), as was contemplated by that law. To avoid trouble on this account they were declared to be public mills.
It was not until 1871 that the constitutionality of taxation in aid of railroads was settled in this court. (Leavenworth County v. Miller, 7 Kan. 479, 12 Am. Rep. 425; The State, ex rel., v. Nemaha County, 7 Kan. 542.) The opinion of Mr. Justice Valentine in the Leavenworth county case, concurred in by Mr. Chief. Justice Kingman, is probably the most exhaustive' and elaborate of his many able decisions. The dissenting opinion of Mr. Justice Brewer in the Nemaha county case (p. 549) presents in his peculiarly clear and forcible style a most able discussion of the entire question. These facts are mentioned as matters of common knowledge, which may be considered in connection with the statute above quoted. {The State v. Kelly, 71 Kan. 811, 81 Pac. 450, 70 L. R. A. 450.)
The right of eminent domain was first conferred upon corporations, other thaxi railroads, by section 88 of chapter 23 of the General Statutes of 1868, which reads:
“Lands may be appropriated for the use of macadam, plank road and telegraph corporations in the same manner as provided in this article for railway corporations, as far as applicable.”
That section has been amended by adding additional corporations thereto until it now reads:
“Lands may be appropriated for the use of macadam road, plank road, hospital corporation or association, telegraph, hydraulic, irrigating, milling and other manufacturing corporations using power, and for the piping of gas, in the same manner as is provided in this article for railway corporations, as far as applicable.” (Gen. Stat. 1901, § 1366.)
It is contended that the words “milling and other manufacturing corporations using power,” used in this statute, when taken in connection with the law as to public mills, completely cover the mill in question. We are unable to concur in this conclusion. Chapter 65 of the General Statutes of 1901 does not seem to refer to mills such as the one owned by the defendant. No such mill was within the state of Kansas when that law was enacted, and probably no member of the legislature passing the act had ever seen such a mill. The language used in the statute applies to, and describes, the old-fashioned grist-mill — a mill operated for the accommodation of the public; a mill upon which the citizens “for miles around” were compelled to depend for the meal and flour from which their daily bread was made; a mill where the customers came on horseback, in ox wagons arid other conveyances, and remained from a few hours to several days for their “turn” to be waited upon, and then received the meal, flour, shorts or bran produced from their grain; a mill where the miller received the grist at the mill door and cared for it-until ground, and then returned it, less the toll taken, on demand, to the owner. In these mills customers’ sacks were lost, grists exchanged, excessive toll taken, and the rights of customers neglected in various ways. The statute in question was intended, as its provisions clearly indicate,- to regulate mills of this kind, and none other. The words' “public mills,” as there used, apply to mills of this character only.
The mill of the defendant company, as described in the agreed statement of facts, belongs to 'an entirely different category. It neither does, nor offers to do, such a grist-mill business. It will be seen that the first section of the law of 1863 declares what mills shall be public mills, and immediately proceeds in the next section to prescribe regulations for “all public mills,” showing quite clearly the class of mills to which the words “public mills” were'intended to apply.
This leaves section 1366 of the General Statutes of 1901 to be considered. If this section be construed literally, and without reference to' any other rule or law relating to the subject, it may be said to confer the power of eminent domain upon any milling or manufacturing corporation using power, without other condition or limitation; but such an interpretation would lead to results so unreasonable that it cannot be considered. The least that can be said is that by it is meant any milling or other manufacturing corporation whose functions and uses are of the same public character as other corporations upon which this right has been conferred. This brings us to the question, What is such a public use ? The statute gives no answer. The question is perplexing and difficult. Few courts have attempted to give it a clear and definite answer. In the case of Nash v. Clark, 27 Utah, 158, 75 Pac. 371, 1 L. R. A., n. s., 208, 101 Am. St. Rep. 953, it was said:
“There is no fixed rule of law by which this question can be determined. In other words, what is a public use cannot always be determined by the application of purely legal principles. This is evident from the fact that there are two lines of authorities, neither of which attempts to lay down any fixed rule as a guide to be followed in all cases. One class bf authorities, in a general way, holds that by public use is meant a use by the public or its agencies — that is, the public must have the right to the actual use in some way of the property appropriated; whereas the other line of decisions holds that it is a public use within the meaning of the law when the taking is for a use that will promote the public interest, and which use tends to develop the great natural resources of the commonwealth.” (Page 162.)
Many cases have negatively stated the rule sufficiently for the decision in hand, but leave the matter open to modification .whenever local circumstances make a change necessary. As .stated by the Utah court, two rules may be deduced from the decided cases by which to determine whether a giveñ use is public or private. The one which seems to be sustained by the weight of authority was thus stated by the supreme court of Minnesota in the case of Minnesota Canal & Power Co. v. Koochiching Co., 97 Minn. 429, 107 N. W. 405, 5 L. R. A., n. s., 638:
“The use is not public unless the public, under proper police regulation, has the right to resort to the property for the use for which it is acquired independently of the mere will or caprice of the person or corporation in which the title of the property would vest upon condemnation.” (Page. 449.)
A more elaborate statement was made by the supreme court of Maine in the case of Brown v. Gerald, 100 Me. 351, 61 Atl. 785, 70 L. R. A. 472, 109 Am. St. Rep. 545, as follows:
“ ‘Property is devoted to a public use when, and only when, the use is one which the public in its organized capacity, to wit, the state, has a right to create and maintain, and therefore one which all the public has a right to demand and share in.’ . . . In a broad sense it is the right in the public to an actual use, and not to an incidental benefit. If it be a railroad company, the public have a right to be transported, and to have their goods carried from place to place, upon payment of reasonable tolls. The company must accommodate them, whether it will or no. If it be a canal or turnpike or bridge, all may travel thereon. If it be a boom company, all who have logs in the river are entitled of right to have the booms used for them. . . . These are the more ordinary kinds of quasioublic corporations, and they illustrate better perhaps than any definition can express the particular personal quality of the use which the public as individuals have by right in the property of such corporations. It is the right of the public as individuals to use, when occasion arises. The use must be for the general public, or some portion of it, and not a use by or for particular individuals.” (Page 372.)
A few of the cases in which practically the same conclusions are reached are: Gaylord v. Sanitary District, 204 Ill. 576, 68 N. E. 522, 63 L. R. A. 582, 98 Am. St. Rep. 235; Coates v. Campbell, 37 Minn. 498, 35 N. W. 366; Board of Health v. Van Hoesen, 87 Mich. 533, 49 N. W. 849, 14 L. R. A. 114; Fallsburg, &c. Co. v. Alex ander, 101 Va. 98, 43 S. E. 194, 61 L. R. A. 129, 99 Am. St. Rep. 855; Cozard v. Hardwood Co., 139 N. C. 283, 51 S. E. 932, 1 L. R. A., n. s., 969, 111 Am. St. Rep. 779; Healy Lumber Co. v. Morris, 33 Wash. 490, 74 Pac. 681, 63 L. R. A. 820, 99 Am. St. Rep. 964; Matter of Mayor, etc., of N. Y., 135 N. Y. 253, 31 N. E. 1043, 31 Am. St. Rep. 828; Ulmer v. Railroad Co., 98 Me. 579, 57 Atl. 1001, 66 L. R. A. 387.
This rule was also approved in the case of Irrigation Co. v. Klein, 63 Kan. 484, 65 Pac. 687, where it was said:
“The words 'public use,’ ex vi termini, imply that the public is interested therein, and that in its sovereign organization and capacity the public .retains the right of regulation and control, at least in a limited or qualified degree, over the exercise of any corporate power or function granted in the accomplishment of such public use.” (Page 493.)
The defendant is simply a private corporation authorized by its charter to manufacture flour and feed for sale. The public has no more interest in it than in the corporation from which the land in question is sought to be taken. They are both useful and important business instrumentalities, and contribute to the growth and development of the locality where they are situated. This may also be said, however, of every legitimate business. To a limited extent every honest industry adds to the general sum of prosperity and promotes the public welfare. This is not enough; a business which may invoke the right of eminent domain must be one in which the public has an exceptional and peculiar interest, and one which it might on proper occasion control and manage in the interests of the public. It seems clear that the mill in question does not sustain such a relation to the public, and therefore does not have the power.to exercise the right of eminent domain.
The judgment of the district court in granting a perpetual injunction is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
Several propositions are discussed in the briefs which, in the view we have taken of the case, it will be unnecessary to consider at length. Considerable ingenuity is displayed in two contentions: (1) It is said that if it were essential to the making of a binding contract that, the fact of acceptance be communicated to Madden,' it was communicated to him when Noble & Co. received the letter from the assignee authorizing them to deliver the deeds which had been duly executed. (2) It is contended that the deeds were actually deposited in escrow by the owner, and that Noble & Co. held them for that purpose.
Both of these contentions rest upon the proposition that Noble &' Co. were the agents of Madden as well as agents for the owner. To this we cannot agree. They were the agents of the owner, and the law is well settled that an agent cannot represent both parties. There may be limitations to the general rule, but the rule is inflexible where the interests of the parties conflict. The vital principle of the law of agency is said to be'good faith, and this prohibits one from acting as the agent of opposing parties. (1 A. & E. Encycl. of L. 1073; Walker v. Osgood, 98 Mass. 348, 93 Am. Dec. 168; Mechem, Agency, §§ 455, 972.) In the recent case of Winter v. Carey, 127 Mo. App. 601, 106 S. W. 539, the Missouri court of appeals said:
“There is scarcely a rule of law which has received more uniform approval than that an agent cannot serve the opposing party without the knowledge and consent of his principal. The law, recognizing that, in general, human nature is too weak to assure faithful service in such circumstances, has absolutely forbidden such dual position.” (Page 603.)
In that case the agent claimed that his action was for the interest of his principal, and that in acting for the opposing party no fraud was intended and no in jury done, but, in fact, a benefit accrued to his principal. After citing authorities, the court said:
“Good faith, on the part of the agent and lack of harm to his principal will not interfere with application of the rule, for it is founded in public policy.” (Page 603.)
It is very clear that Noble & Co. were not in any sense the agents of Madden.
Again, it is insisted that under the facts in this case it was not essential to the making of a binding contract that the acceptance be commu’nicated to Madden at all. For the reasons which we shall attempt to show, it is wholly unnecessary to consider this claim.. Noble & Co. were agents with no authority to make or accept a proposition which would bind the owner. Their correspondence with Madden resulted simply in a proposition by Madden to purchase the property at a certain price. This proposition was submitted to their principal, and there was lacking only his acceptance to make a binding contract. Now, it is contended that there was an acceptance, and that this is shown by the proof which the plaintiff offered that the assignee sent to Noble & Co. a letter enclosing deeds duly executed, with instructions which, in fact, accepted Madden’s proposition. But this did not constitute an acceptance. It is true there was evidence tending very strongly to show that the owner was satisfied with the offer, and intended to accept it, and that he went so far as to have deeds .of conveyance executed and to notify his agents of his intention; and, if the instructions in this letter had not been afterward modified, they would doubtless have resulted in a completed contract of bargain and sale. But before closing the matter the assignee received a better offer, which he accepted, and for this reason declined Madden’s. Keeping-in mind the fact that Noble & Co. were his agents, and not Madden’s, and that what one does through and' by an agent he does through and by himself, it cannot, be said that the owner of the property accepted the: offer of Madden so long as the acceptance was within his control. It was as much in his control while in the possession of his agents at Topeka as though the deeds which had been executed and the letter of instructions to his agents had been left upon his desk in New Hampshire. So long as they were in the hands of his agents they were in his own hands. This disposes of every contention in the case. If there was in fact no acceptance, it is useless to consider the question of the effect of notice to Madden of something which never occurred.
Noble & Co. owed good faith to their principal, but were under no obligation whatever to Madden. As the agents of the owner they were bound to inform him of any increase in the value of the land which was unknown to him when he fixed the price, (Hegenmyer v. Marks, 87 Minn. 6, 32 N. W. 785, 5 Am. St. Rep. 808.) Since they owed no duty to the plaintiff, he cannot maintain an action against them based upon their performance of a duty which they owed to another.
One of the theories upon which the plaintiff tried the case was that a conspiracy existed on the part of the agents and the owner to defraud him out of the benefits of a contract, but as there was no contract entered into there is no foundation for the theory,
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Ralph L. Chute, while upon the sidewalk in front of a building owned by Charles P. and William Moeser, to which a new story was being added, was injured by the falling of a portion of a brick cornice then in the process of construction. He brought an action against the owners to recover compensation therefor, but was denied relief, and now prosecutes error. Two forms of negligence were alleged and relied upon by the plaintiff: (1) The employment of an improper method in the construction of the cornice, in that too few headers were used to tie the brick veneer to the stonework back of it; and (2). the failure to erect barriers to warn pedestrians against the use of the walk during the progress of the work.
Besides returning a general verdict against the plaintiff the jury found specially, among other matters, that the defendants, having procured from an architect plans and specifications for the desired improvements, let the contract for doing all the brickwork and stonework to one W. H. Keesee, at an agreed price per cubic foot, they furnishing all the material but having nothing to do with the work except to see that it was completed in accordance with such plans and specifications, having no control over the workmen employed, and paying the contractor upon estimates made from time to 'time. These findings establish that Keesee-was an independent contractor, and thereby relieved the owners from any liability, so far at least as related to any negligence in the manner of performing the work. The exemption of the owners was no less extensive because they let a separate contract for the brickwork and stonework, or because they furnished the material, or because they paid upon estimates as the work pro gressed. according to an agreed price per cubic foot. None of these considerations affects the reason of the rule which ordinarily exempts an employer.‘from responsibility for the negligence of an independent contractor. The injury had no connection with any part of the improvements except the construction of the cornice, and was not occasioned by any defect in the plans or material. The method of performing the work was as much out of the control of the defendants as though they had let to one person for a lump sum a contract for making all the contemplated changes in the building.
The plaintiff contends that some of the findings upon this branch of the case are without support in the evidence, but an examination of the record convinces the court that the contention is not well founded. He also maintains that some of them are inconsistent with each other. This claim is based upon the fact that in answer to one interrogatory the jury said in substance that the contract between the Moesers and Keesee did not limit the control of the owners over the portion of the building being improved, and, in answer to another, said that the owners surrendered their right to the control of thbuilding “so far as improvements were being made.” Whatever conflict these answers exhibit is merely verbal. In view of the other findings it is sufficiently clear that the jury meant that the owner retained control over the building itself, but not over the actual work of construction.
The plaintiff further contends that, even conceding Keesee to have been an independent contractor, that relation for various reasons did not relieve the Moesers from the duty of warning the public against the danger of using the sidewalk during the building of the cornice. It is not necessary to pass upon this question, for the jury further foúnd in effect that there was no negligence on the part of any one in this respect. They found in express terms that the cornice was of the usual kind; that its fall was occasioned by a workman accidentally-stumbling against it before it had had time to dry; that otherwise it would not have fallen; that a scaffold had been built below the cornice to interrupt the fall of any brick or other material, and thus protect persons using the sidewalk, which was sufficient to catch anything that might naturally be expected to fall during the progress of the work, and made the walk reasonably safe for passers-by; that this was the usual way of affording such protection; and that the falling of the cornice was not a thing naturally to have been anticipated as the result of making the improvements. It cannot be said as a matter of law that it was the duty of the defendants to have anticipated the accident that happened or to have taken any specific precautions to guard against its consequences. These were matters for the determination of the jury. Their decision that proper méasures had been taken to protect passers-by against any occurrences that could reasonably have been anticipated was conclusive against the liability of the defendants in this aspect of the matter. (Cleghorn v. Thompson, 62 Kan. 727, 64 Pac. 605, 54 L. R. A. 402.)
Portions of the instructions are objected to upon several grounds; but as they could not have influenced the action of the jury in making the findings referred to, and as these findings compelled the judgment that was rendered, it is not necessary to discuss the assignments of error in this regard.
The judgment is affirmed. | [
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Per Curiam:
No substantial error was committed in requiring the city to go to trial at the term the trial was had. Both parties mistakenly proceeded on the theory that the defendant was in default, but the demurrer of the city, which was filed by consent of the plaintiff, was adjudged to be frivolous, and hence the case then stood as if no demurrer had been filed. Neither the ruling on the demurrer nor that denying the motion for a continuance furnish ground for complaint. The time subsequently given for answer and preparation for trial was brief, but an examination of the record satisfies us that no injustice was done to the city in requiring a trial at that term. The affidavit for a continuance, setting forth the absent testimony, was treated as a deposition, which the city was- privileged to introduce but did not. No error was committed in the admission of testimony nor in the rulings on instructions. ,
The judgment is affirmed. | [
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Per Curiam:
Paul H. Hill, whose residence is eight miles from the sehoolhouse of school district No. 12, in which he resides, in Haskell county, brought this action in the district court of that county to recover the additional expense of sending two children to another school, and recovered judgment for the amount claimed. The action was brought under two orders of the annual 'school meeting, as authorized by section 6133 of the General Statutes of 1901. In 1902 Mr. Hill, having a child named Louise Newfelt, whom he was supporting and desiring to educate and who was living with him as a member of his family, applied to the annual school meeting of the district for an allowance. The following is the record of the action taken, a copy of which is set forth in the petition:
“Mr. Hill asked to be given something to pay part of child’s board, he living too far from sehoolhouse for child to come alone. It was agreed to give him the limits and the board to decide afterward.”
It does not appear that there was any “school of some other convenient district” (Gen. Stat. 1901, §6133), and no order appears to have been made where the child should be sent to school, but this seems to have been left to Mr. Hill to determine. The meaning of “the limits” was explained by a witness who was present at the meeting and who said the electors present raised the question as to what amount could be allowed under the law, and as they were unable to ascertain they decided to allow all the law would permit and leave it to the school board to determine what that amount would be. It is agreed that during the school year following this child attended school 137 days. The evidence shows that Mr. Hill sent the child to school at Liberal, fifty miles distant from his home, and that the extra expense was more than the amount claimed.
The following year, 1903, Mr. Hill’s daughter, with her little girl, also lived with him- at his home,v and he applied to the school meeting of that year on behalf of himself and daughter for an allowance on the education of the two children, Louise Newfelt and Bessie Sharpe, and it appears that an allowance was made. The clerk’s record of the proceeding, copied in the petition, is very brief and rather indefinite, as follows: “Motion made that the district board is instructed to educate Louise Newfelt and Bessie Sharpe as provided by law.”
There was evidence that both children were sent to Liberal to school a part of the school year following, and it is agreed that they attended school — Louise New-felt 90 days and Bessie Sharpe 76f- days. The evidence also shows that the extra expense was as great or greater than the amount claimed and allowed by the court.
Mr. Hill took an assignment of the claim of his daughter and demanded payment of ten dollars per month for the time he had sent Louise Newfelt to school during the two years and at the same rate for the time Bessie Sharpe was sent to school for the latter year.
The plaintiff in error is not entitled to be heard on some of the objections raised, by reason of a disregard, of rule 10 of this court.
The allowances to Hill and his daughter were within the purpose and spirit of the law, and the amount for which he recovered judgment was evidently intended to be allowed to him and his daúghter by the electors of the school district, although the clerk’s minutes of the proceedings were not full and specific.
We have examined the proceedings of the court and find no substantial error, and as justice has been done the judgment is affirmed. | [
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The opinion of the court was delivered by
Graves, J.:
Who the party plaintiff is in this case does not seem clear. The name “The State of Kansas” appears in the title of the action, but it seems to have been used by the Cherokee-Lanyon Spelter Company for the purpose of setting aside an illegal tax which had been levied against its property. The petition contains two causes of action — one in quo warranto, and another for injunction; but they are each used as a means to the same end. The action does not appear to have been prosecuted for the purpose of disorganizing the municipality of the city of Gas for public considerations of any kind, but solely to relieve the real estate of the spelter company from municipal taxation. No interests of a* public nature seem to be involved.
The name of the county attorney appears in the body of the petition, to the effect that the action is brought in behalf of the state of Kansas, upon the relation of the Cherokee-Lanyon Spelter Company. That officer, however, does not appear to have instituted the action; he is not the attorney therein, nor does he appear to have any management or control thereof.
Actions must be brought by the real party interested in the relief sought by the suit. In actions involving public interests the state is the proper plaintiff, but such cases must be brought by some public officer authorized to represent the public interests, as the attorney-general or the county attorney. Private persons cannot use the name of the state merely to subserve their own purposes. This is the clear' purpose of the code, and the rule has been the subject of many decisions of this court. (Craft v. Jackson Co., 5 Kan. 518; Millef v. Town of Palermo, 12 Kan. 14, 16; Lewis v. Comm’rs of Bourbon County, 12 Kan. 186, 203; A. T. & S. F. Rld. Co. v. Wilson, Treas., 33 Kan. 223, 6 Pac. 281; A. T. & S. F. Rld. Co. v. The State, 22 Kan. 1; In re Short, Petitioner, 47 Kan. 250, 253, 27 Pac. 1005; Mendenhall v. Burton, 42 Kan. 570, 22 Pac. 558; Topeka v. Dwyer, 70 Kan. 244, 78 Pac. 417; Levitt v. Wilson, 72 Kan. 160, 83 Pac. 397.) This is an action in which the state of Kansas has no interest, and its name as used does not conceal or change the private character of the relief sought. The Cherokee-Lanyon Spelter Company is the real party in interest, and the only proper plaintiff.
The two causes of action are improperly joined. If the action be regarded as one brought in the name of the state- to disorganize the municipality, then, the state having no interest in the private concerns of the Cherokee-Lanyon Spelter Company, the suit for injunction could not be joined with the proceeding in quo warranto. If it be regarded as an action by the Cherokee-Lanyon Spelter Company for its own private interests, then the action of quo warranto, being public in its nature, could not be joined with the suit for injunction. As applied to this action, the state prosecutes to protect the public welfare, by preventing the confusion concerning property and other rights which might result from an illegally organized municipal government. The individual prosecutes to avoid the payment of municipal taxes. These interests are incompatible, and cannot be joined. (Bartlett v. The State, 13 Kan. 99, 102.)
The same objection may be made concerning the joining of the defendants. The county treasurer and the county clerk have no interest in the quo warranto action, and the other defendants have no interest in the injunction. This is in violation of section 88 of the civil code (Gen. Stat. 1901, § 4517), which requires that the causes of action which may be joined in a petition must affect all the parties to the action.
We are unable to say that the court erred in sustaining the demurrer to the second amended petition, and this makes it unnecessary to consider the other questions discussed. The judgment is affirmed. | [
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The opinion of .the court was delivered by
Smith, J.:
The defendants were arrested, tried and convicted of arson in the third degree for the burning of a chicken-house in the night-time and sentenced therefor in the district court of Ellis county.
Very numerous assignments of error are made, without any reference to the chronological order in the proceedings. Without regard to the order of assignment, we will first consider the motion to quash the information. The description of the crime charged.therein is as follows:
“That on or about the 26th day of November, 1906, in the night-time, in said county of Ellis and state of Kansas, Leonard Stanton, Philip Thurston, Chet Thurs-ton, Frank Thurston, and Clarence Clarkson, did then and there unlawfully, feloniously, wilfully and maliciously set fire to and burn a certain frame building, to wit, a chicken-house, situated on the southwest quarter of section 11, township 11, range 17, in Ellis county, Kansas, the property of R. G. Finch.”
The objection raised to the information is that it does not charge the ownership of the chicken-house but does charge the ownership of the land. A technical grammatical construction would probably sustain this criticism, but with no great violence to the construction of the sentence it may be interpreted as stating the ownership of the chicken-house, and as the defendants were charged with burning the chicken-house they could not have been misled as to the charge. In larceny ownership is necessary to be charged to identify the property; in this case the location answers that purpose.
“It is a well-established rule of criminal law that every indictment should contain a complete description of the offense charged, that it should set forth the facts constituting the crime so that the accused may have notice of what he is to meet and so that the court may know upon conviction what crime has been committed, but the highest degree of certainty is not required; certainty to a common intent is sufficient. ‘No rule ought to prevail" which would .serve only to shield the guilty instead of protecting the innocent.’ ” (10 Encyc. PL & Pr. 475, note.)
The motion to quash was properly denied.
We note also in this connection that the defendants offered proof tending to show that the land described in the information was the property of A. Finch, the wife of R. G. Finch, and that this evidence was excluded. There was testimony, however, that R. G. Finch bought and paid for the material and' erected the chicken-house, and was in possession thereof at the time of the fire, and that he and his wife were living together on the land at the time. It will be observed that the ownership of the chicken-house is not an element in the identification of the same in this case. Whether it belonged to R. G. Finch or his wife, A. Finch, it was as to the defendants the property, of another. It was fully identified by location.
Again, it is urged that the court erred in denying the defendants’ motion to quash the array of jurors. On the hearing of this motion it was admitted that prior to the drawing of the special venire the judge announced in open court that, the regular panel having been exhausted, he would proceed to the office of the county clerk for the purpose of drawing a special venire in the case, and requested the clerk of the court and the attorneys for the state and the defendant to be present; that the panel was drawn by the county clerk, under the supervision of the judge, and in the presence of the attorneys for the state and defendants; that no justice of the peace was present or had been invited to be present; that immediately before the drawing each of the defendants objected to the manner of the drawing. The motion is based upon the absence of a justice of the peace. Under the second proviso in section 3816 of the General Statutes of 1901 we think it is contemplated that the presence of the judge shall obviate the necessity for the presence of a justice of the peace, and that the drawing was had in accordance with the provisions of this section.
Numerous objections are made to the reception and rejection of evidence offered, and also to the refusal of several instructions requested. We have examined all of the questions raised and have failed to discover any error prejudicial to the defendants. Several of the instructions asked included proper statements of law with inaccurate statements, and were properly refused; others might properly have been given, but so far as they were not covered by the instructions given do not seem to have been necessary to protect the rights of the defendants. No prejudicial error occurred in the refusal of the same.
We consider it necessary especially to notice only two objections raised on the motion for a new trial:
First, that the jury considered, in deliberating upon their verdict, that the defendants did not .testify in their own behalf. The evidence to support this claim is found only on the testimony of one juror, who, referring to the time of their deliberations, said in substance that the jurors wondered why the defendants did not testify. He further said that he did not know that more than one juror referred to the matter. There is nothing to show that the jurors discussed the omission of the defendants to testify or that they drew any inference therefrom. .The evidence does not tend as strongly to show misconduct of the jury as in The State v. Rambo, 69 Kan. 777, 77 Pac. 563, in which case a new trial was granted on this ground.
Second, it was shown that, after the jury had retired to deliberate on their verdict, at their request they were brought into court about midnight, and at their request .and in the absence of all the defendants, but in the presence of two attorneys for the defendants, the stenographer was permitted to read from his notes the evidence which had been given by two witnesses on the trial in the presence of the defendants. None of the defendants was in custody; they were all at large on bail. They were all in bed some distance from the court-house, and neither the court nor their own attorneys knew where they were. The circumstances were such that the defendants were bound to know that the jury were liable to be called into the courtroom at any time to deliver their verdict or for any other purpose, yet they voluntarily absented themselves therefrom. It was said, in The State v. Way, 76 Kan. 928, 93 Pac. 159:
“The right of the defendant to be present when a verdict is returned, secured to him by the statutory provision that ‘no person indicted or informed against for a felony can be tried unless he be personally present during the trial’ (Gen. Stat. 1901, § 5649), is one that may be waived, and if while at liberty on bond he is voluntarily absent, without having been excused by the court, when the jury reach an agreement a verdict against him may lawfully be received in his absence.” (Syllabus.)
From the defendants’ standpoint it would seem that the reception of an adverse verdict is a much more important step in the trial than the rehearsal of testimony; which has already been delivered in their presence. Since the defendants may waive the former, there appears to be no reason for holding that they may not waive the latter. It does not appear that the defendants in this case had been excused by the court, and their voluntary absence is held to be a waiver of their right to be present at the time referred to.
We have read the evidence presented in the abstract and find that it was amply sufficient to sustain the finding of the jury.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The principal question presented, and the only one we deem necessary to discuss, is whether certain evidence introduced on the part of Chaney was properly admitted over the objection of the railroad company. William Webb, called as a witness for the plaintiff, testified in full as follows:
“Ques. Are you. acquainted with John Chaney, the plaintiff? Ans. Yes, sir.
“Q. Did he at any time after his injury make any statement to you as to present existing pain in his head or ear? A. Yes, sir.
“Q. When? [Defendant objects: incompetent, has no bearing on the issues of this case, and calling for self-serving statements. Objection overruled. Defendant excepts.] A. Why, about a month and a half after he was hurt.
“Q. Well, more than once? A. Yes, sir.
“Q. When were the other times? [Objected to for reasons above stated. Objection overruled. Defendant excepts.] A. Well, several times. I could not mention them all.
“Q. About what time? Over what period of time? A. Well, about a week afterward, I reckon.
“Q. A week after the first time, you mean? . A. Yes, sir.
“Q. Do you remember more than twice? A. Well, he has complained about his head every time he was over to my house.
“Q. How often? A. Well, I just could not say how often. A good many times.
“Q. Now what did he say about present existing pain in his head or ear? [Defendant objects for reasons above stated. Objection overruled. Defendant excepts.] A. Well, he says ‘my head hurts me. My ear aches.’ [Defendant moves to strike out the testimony of this witness for the reason it is incompetent and self-serving statements made by the plaintiff. Motion overruled. Defendant excepts.] ”
Frank White, called as a witness for the plaintiff, testified in full as follows:
“Ques. Where do you live? Ans. Mulberry avenue, in the bottom.
“Q. In East Fort Scott ? A. Yes, sir.
“Q. How long have you lived here? A- About twenty-five years.
“Q. Do you know John Chaney? A. Yes, sir.
“Q. Has he been to your house? A. Yes, sir.
“Q. Have you ever heard him make any statements as to present existing pain since his injury? A. Yes, sir.
“Q. How often? A. Well, three or four times.
“Q. When? A. Well, about a month after he got hurt.
“Q. Well, then, when was the next time? A. A week ago.
“Q. When other times? A. Well, about two weeks before that.
“Q. The first time you remember was about a month or so after he got hurt? A. Yes, sir.
“Q. When was the next time after that, if you remember? A. Well, he worked for me, you know, once in a while, and he would say his head hurt, or his ear, something that way.
“Q. And he put his hand up to his head? A. Yes, sir.
“Q.. That was a month or two after he got hurt? A. Yes, sir.
“Q. What did he say at these different times about his head or ear hurting him? [Defendant objects: calls for self-serving statements and incompetent. Objection overruled. Defendant excepts. Defendant moves that the testimony be stricken out as to what plaintiff said, for the reason that it is self-serving. Motion overruled. Defendant excepts.] A. Well, he said his head and ear hurt him.
“Q. How often have you heard him say that? A. Well, three or four times.
Oross-eceamination.
“Ques. When was the last time you heard him say it ? Ans. Last week.
“Q. That is since this suit was brought. When was it before that you heard him say anything about it? A. I can’t remember just exactly.
“Q. How long before? Was it six months since you heard him say anything about it? A. Something like that. He worked for me.
“Q. How long before that had you heard him say anything about it? A. I could not say exactly the time. I have heard him say it three or four times. Maybe a little more.
“Q. When was the last time before last week? A. About a week before that.
“Q. That was when' his cáse was about to be called here in court? A. Since that and before that, too.
“Q. That is twice? A. I knew nothing about that —about his case before that.
“Q. When you heard his case was about to be called you heard him say something about it? A. Yes, sir; and before that, too.
“Q. ' How long before that had you heard him say something about it? A. Well, about a month after he was hurt.
“Q. After he was hurt? A. Yes, sir.
“Q. Then he went back to work after that? A. I know nothing about him working back there.
“Q. When was the next time you heard him say anything about it ? A. About two weeks after that.
“Q. That makes four times, does n’t it? A. Yes, sir.
“Q. The first time was about a month after he was hurt? A. Yes, sir.
“Q. And the next time about two weeks after that; then you heard him say something about it last week, and something about it the week before that; is that right? A. I could not say exactly how many times. I. heard him several times, I told you.
“Q. You said three or four times? A. Yes, sir.
“Q. How often do you see him? A. I see him every day.
Redirect eccamination.
“Ques. You have heard him say so a good many times, too, haven’t you? [Defendant objects: leading and suggestive. Objection sustained.]
“Q. You are only able to fix three or four times specially? [Same objection. Sustained.]
“Q. I will ask you if you remember the time when he was sawing some wood down there? A. Yes, sir.
“Q. When was that? A. That was last week.
“Q. That was last week; he was trying to do some work then? A. Yes, sir. He said T will have to quit.’
“Q. Do you remember some five or six months ago when he was down there helping you get a boat out of the creek? ' A. Yes, sir.
“Q. Do you remember what he said then about his head hurting him? [Defendant objects: incompetent and calling for self-serving statements. Overruled. Defendant excepts.] A. Yes, sir.
“Q. What did he say then about his head or ear hurting him? A. Why, I did not get the boat up. He got so bad off, his head hurt him so he could not get the boat up.
“Q. Hurt him so that he could not help you? A. We got it about half way out.
Recross examination.
“Ques. When was that. Ans. That was about a month and a half ago, something like that.
“Q. That is since this suit was brought? A. Yes, sir.
Redirect examination.
“Ques. The suit did not cure his head, did it? Ans. No, sir.”
It will be observed that neither of these witnesses testified to any facts as occurring at any of the times any of the statements as to pain were made; that no act accompanied the statements (except in one instance Chaney put his hand to his head) which could be said to make the statement a verbal act or the verbal part of an act. Nor were the declaration's testified to made in the form of exclamations of pain or as apparently involuntary manifestations of pain. Nor does the evidence indicate anything from which the court or jury could infer that the statements were not made with deliberation and for the possible purpose of strengthening the evidence in a contemplated lawsuit. Yet all these statements related to present and existing pain and suffering. They were bald statements of facts, and, as related by witnesses, were of course simply hearsay as to facts of which the witnesses had no knowledge. All evidence of this character is, however, necessarily hearsay, and many conflicting decisions have been made and many fine distinctions drawn as to when such statements of pain and suffering should be admitted or excluded.
The reason usually assigned for making an exception of this class of evidence and admitting the hearsay statements is that of necessity — to avoid the miscarriage of justice. The exception originated under the common law, at a time when the injured party was incompetent to testify in his own behalf. Since the removal of that obstacle the exception has survived for the reason that no witness other than the sufferer can testify of his own knowledge as to the injured party’s suffering or as to his state of mind. Other witnesses than the injured party can testify only as to facts which indicate the suffering or mental condition, and the statements made by the supposed sufferer, in' connection with facts testified to, are admitted on the theory that they are verbal acts or verbal parts of the acts, especially when the statements are entirely disassociated from the cause of the suffering. The necessity of allowing exceptions to the rule of hearsay testimony is apparent when we consider how much more vividly the condition of a sufferer may be brought before a court and jury by the narration by another of all the circumstances surrounding the - alleged sufferer — the observable indications of suffering, the screams, exclamations or even statements made by the sufferer — than could possibly be portrayed by the sufferer himself after he had recovered therefrom.
On the other hand, caution must be exercised to guard against the miscarriage of justice by giving credence to manufactured evidence of this kind. It is usually the province of the jury to determine what, if any, weight should be given to evidence of this character in a particular case, and some courts have said that the party offering the evidence should offer proof, by circumstances or otherwise, to show that the statements were exclamations made involuntarily or that sprung unconsciously from present pain or suffering, or, at least, that they were not made designedly. When such evidence is offered it should appear fair upon its face to the court before being submitted to the consideration of the Jury, who, as before said, are the final arbiters as to its value.
We have examined numerous authorities but have found no case where statements of existing pain, stripped so completely as in this case of the circumstances under which they were made, have, been admitted. Yet it must be conceded that in A. T. & S. F. Rld. Co. v. Johns, 36 Kan. 769, 14 Pac. 237, 59 Am. Rep. 609, the rule stated in the syllabus as to such declarations fully justified the court in admitting the evidence of these witnesses. It is also true that the de cisión in the Johns case has been cited with approval in at least three subsequent cases in this court, but neither in the Johns case nor in any of the subsequent cases was evidence offered and admitted of so bald a character as is presented here.
The question for determination in the Johns case was as to the admissibility of such evidence relating to present' existing pain and suffering as distinguished from a historical recital of past suffering and pain. We have no criticism of the decision in that case as applied to the facts then under consideration, but as applied to the facts in this case, and to many other cases which may arise, the rule prescribed in the syllabus' therein is too broad. The purpose of introducing the hearsay statements in evidence in this case could have been no other than to prove that an injury, received some time prior, was continuous or permanent, and no evidence was offered by either of the witnesses testifying in reference thereto of the appearance or conduct of the party, or of any other circumstances surrounding the making of the statements which indicate that they were the spontaneous expression of present feeling and were not made in furtherance of a deliberate purpose. Evidence of this character is admitted, as before stated, as a matter of necessity, that justice may not fail, but before such evidence is submitted to a jury there should be sufficient preliminary evidence to make it at least probable to the court that it will subserve, and not itself defeat, the ends of justice.
The only other error urged was the refúsal of an instruction which was probably applicable to an affiadvit by the plaintiff in regard to his injury, made at a time, as he testified on the trial, when he did not understand or comprehend the gravity of the injury. The instruction made no reference to the subsequent explanation and was properly refused.
For the error in the admission of evidence the judgment is reversed and a new trial awarded. | [
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The opinion of the court was delivered by
Burch, J.:
In the year 1901 the legislature enacted a law providing for the voluntary disorganization and consolidation of adjacent school districts. A portion of the first section reads as follows:
“Whenever the inhabitants of two or more adjacent school districts of the state of Kansas desire to unite for the purpose of forming a single or union school district and conducting therein a graded school, the clerks of the several districts shall, upon a written application of five voters of their respective districts, or by order of the several school-district boards, call a meeting of the voters of such districts at their respective schoolhouses, by posting up printed notices thereof in like manner as provided for calling school-district meetings, and if a majority of the voters in each of two or more adjacent districts shall vote to unite for the purpose herein stated, the clerks' of such districts shall thereupon1, in writing, notify the county superintendent of such action; provided, that the vote in any district shall be made conditional upon its carrying in certain other named districts proposing to unite. Upon such notice, it shall be the duty of the county superintendent, and'he is hereby authorized, at his discretion, to declare the districts so voting disorganized, and to designate a time and place for a meeting of the voters of said district so voting, for the purpose of electing a board of directors, consisting of a director, clerk, and treasurer, notice of which meeting shall be given by printed notices, posted in five public places in the districts uniting.” (Laws 1901, ch. 305, § 1 ; Gen. Stat. 1901, § 6151.)
If the territory of a union district lie in more than one county the county superintendents of the various counties act together.
In January, 1906, the. question of disorganization and the formation of a union district was agitated in school districts numbered 8, 11, 81 and 87 in Saline county and joint district No. 7 of Saline and Ottawa counties. Petitions duly signed by the requisite number of voters were presented to the clerks of the districts named, each requesting the board of directors to call a meeting to vote upon the proposition of consolidation. None of the boards of directors acted, but in each district the clerk called a meeting. In district No. 8 the petition asked for an election to vote upon the proposition to consolidate with districts No. 81, No. 87, and No. 7. The clerk’s notice of election called for an election to vote upon the proposition to unite with districts No. 11, No. 81, No. 87, and No. 7, or any of them. At the election only two forms of ballots were used: one for and one against consolidation with districts No. 11, No. 81, No.- 87 and No. 7. The prop osition to consolidate the five districts carried. In districts No. 11, No. 81, No. 87 and No. 7 the petition and the notice called for an election to vote upon the proposition of consolidation with district No. 8. In each of those districts but two forms of ballot were used at the election: one for and one against consolidation with district No. 8. The proposition carried in district No. 81, lost in district No. 11, and lost in district No. 87. In district No. 7 there were fifty-four electors. Of this number thirty-eight participated in the election. Twenty-seven votes were cast for and eleven votes against the proposition to consolidate with district No. 8.
• The results of the various elections having been reported, the county superintendent of Saline county declared districts No. 8 and No. 81 to be disorganized, and joined with the county superintendent of Ottawa county in a similar declaration respecting joint district No. 7. The two officials further assumed to say that by the authority in them vested they had formed a consolidated, or union, district of the territory comprising former districts No. 8 and No. 81 in Saline county and joint district No. 7 of Saline and Ottawa counties, to be known as “union district No. 1,” and a time and place was designated for a meeting of the voters to choose officers of such union district. Afterward an election was held, at which William Gardner was declared elected director, Thomas Irwin was declared elected treasurer, and Howard Burke was declared elected clerk. Upon the attempt of the gentlemen namedgto assume the functions of the board of directors of a union school district the state, upon the relation of the county attorney of Saline county, initiated this litigation by bringing an action of quo warranto against them to oust them from the exercise of the powers they claimed. The ground of the action was that the attempt to disorganize districts No. 8, No. 81 and No. 7 and to organize them into a union district was illegal and wholly void. A demurrer to the peti tion, on the ground of a defect of parties defendant in that union district No. 1 was not made a party, was overruled. The case was tried upon its merits, the district court made findings of fact in detail, of which the foregoing contains a summary, and made conclusions of law as follow:
“ (1) That the proposition to disorganize joint school district No. 7 of Saline and Ottawa counties and to consolidate with school district No. 8, Saline county, did not receive the vote of the majority of voters in said district and was lost.
“(2) That the method of voting was such that no one was given an opportunity of voting for the formation of the district that was to be formed.
“ (3) That union district No. 1, declared to have been organized by these proceedings, is an illegal organization, and the defendants have no warrant or authority in law to perform the duties of members of the school board in such illegal school district.
“(4) That original school districts numbered 7, 8 and 81 still exist and remain unaltered.”
Before judgment was rendered upon the findings of fact and conclusions of law the legislature of 1907 passed an act as follows:
“An Act legalizing and validating the acts and steps taken in disorganizing school districts No. 8 and No. 81, in Saline county, Kansas, and joint school district No. 7 of Saline and Ottawa counties, Kansas, and organizing said school districts into union school district No. 1 of Saline and Ottawa counties, Kansas, and legalizing the election of school officers therein and the acts of such officers.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. That all of the petitions'and notices given and posted for the election held in school districts No. 8 and No. 81 of Saline county, Kansas, and joint school district No. T of Saline and Ottawa counties, Kansas, in the month of February, A. D. 1906, relative to the disorganization of each of said school districts and organizing each of said districts into, union school district No. 1 of Saline and Ottawa counties, Kansas, and the election thereafter held in said districts for the purposes aforesaid, be and the same are hereby legalized and validated, the same as though said notices and the petitions therefor and all other steps taken in pursuance thereof had been made, had and taken in strict conformity to the provisions contained in section 6151 of the General Statutes of Kansas of 1901.
“Sec. 2. That all acts and matters done and made of record by the county superintendents of Saline and Ottawa counties, Kansas, relative to the disorganization of said school districts No. 8 and No. 81 of Saline county, Kansas, and joint school district No. 7 of Saline and Ottawa counties, Kansas, and the organization of said districts into union school district No. 1 of Saline and Ottawa counties, Kansas, be and the same are hereby legalized and made valid, the same as if said matters and acts had been done, performed and entered of record in strict conformity with the laws of the state of Kansas then existing therefor.
“Sec. 3. That the election of the school officers of said union school district No. 1 of Saline and Ottawa counties, Kansas, held in said district on the 13th day of June, A. D. 1906, and all acts of said officers, are hereby legalized and made valid, the same as if said acts had been fully authorized by the laws of the state of Kansas then existing.” (Laws 1907, ch. 244.)
An application to file a supplemental answer setting up this act was denied, and judgment was rendered for the state. The defendants prosecute error.
The demurrer to the petition was properly overruled. The courts have involved themselves in some confusion respecting the matter of parties to proceedings in cases of this character, although it ought to be free from difficulty. The state may proceed against parties assuming to be the officers of a corporation to oust them from the exercise of corporate power on the ground that no corporation exists. If the fact be established that no corporation exists the parties proceeded against are of course shorn of their claimed authority, and the adjudication stands that there is no corporate body of which they might be officers. This is simple and logical. It is not necessary to appear to recognize for the purpose of suit the existence of some thing whose non-existence is the very basis of the proceeding. The judgment is conclusive' because the persons who must make the visible display of corporate life,.if there be any, are prohibited from claiming any further right to do so. On the other hand there may be in full operation that which appears to be a corporation, which is fully organized, has a complete set of officers, acquires and holds property, makes contracts, brings and defends suits, exercises in fact all the powers and privileges and incurs all the liabilities of a corporation, and, indeed, which is a corporation as against all the world except the state. In- such a case the state may accept the situation as it finds it, attack the apparent entity by the name it assumes to bear, bring it into court, and there strip it of all its pretensions. This is also simple and logical, and there is no need to be nonplused by any of the scholastic difficulties with which ingenuity in linguistics and metaphysics may cloud either view.
The position of this court upon the subject is settled by two decisions: The State, ex rel., v. Comm’rs of Ford County, 12 Kan. 441, and The State v. Railway Co., 74 Kan. 413, 87 Pac. 696. In the first case the attorney-general brought an action on behalf of the state-against persons assuming to act as officers of a newly organized county, praying that they might be ousted from the exércise of the functions, powers and duties, of the offices they claimed and that the county organization be declared null and void: The syllabus reads:
“Where a county organization of a new county has. been obtained .through falsehood and fraud, by presenting to the governor a false and fraudulent memorial, and false and fraudulent census returns, the-supreme court may, in an action in the nature of quo warranto against the persons assuming to act as officers of such organization, inquire into said falsehood and fraud, and declare the organization illegal and void.”
In the second case a charter for a private corporation had been fraudulently procured and the powers. exercisable under such a charter had been perverted and abused. The attorney-general brought an action on behalf of the state against the corporation by name to have it adjudged to'be a nullity. The syllabus reads:
“For the purpose of procuring a decree enjoining a corporation from acting as such on the ground of the nullity of its organization it is not necessary that the individual corporators or officers of the company be made defendants and process be served upon them as such; but the state by which the corporate authority was granted is the proper party to bring such an action, through its proper officer, and it is well brought when brought against the corporation alone.”
It is not necessary to follow the circuit taken by the opinions in the two cases, the conclusion in each one having been so clearly and definitely formulated. The result is that the state may bring an action of quo warranto to test the validity of a corporate organization either against the persons who officially undertake to exercise its powers and franchises or against the organization itself by the name it assumes; and in either case a valid and binding judgment of nullity may be rendered.
The findings of fact returned by the district court are not questioned.
The first conclusion of law was inevitable in view of the statute. The legislature might have provided that a majority of the votes cast at the district meeting should control, and thus have left the question of disorganization to be determined by those who should attend the meeting. But it did not do so. The language is: “if a majority of the voters . . .. shall-vote,” etc. A majority of the voters in a district must vote for the proposition before the district can disorganize and unite with another. In district No. 7 just half the voters voted to unite with district No. 8. They could not bind their neighbors. It required a majority, and the proposition lost.
The second conclusion of law . is correct, and because of the method adopted no individual in all the five districts voted for the union district which was declared to be formed. The people in No. 8 voted to unite with No. 11, No. 81, No. 87 and No. 7, and thus to form a union district composed of five districts.' The people in No. 81 voted for a small district composed Of their own and No. 8. The people in all the other districts voted upon the question of consolidation with No. 8. They declined to give up their separate organizations, and the net result was that the declaration of the two county superintendents did not have a solitary vote to support it.
The statute contemplates that all the districts proposing to disorganize and to unite shall vote upon the same proposition, which must carry in all or fail. The phraseology employed is somewhat bungling, but such is the clear intent, to prevent districts from being forced into a combination which would be repudiated if it were fairly presented for acceptance or rejection. The proceedings to disorganize and consolidate school districts are purely voluntary on the part of the people of such districts. They take action and notify the county superintendent of the result. True, the'effect of this action is held in abeyance until the county supérintendent declares it, and he has a discretion to withhold the declaration; but when the declaration is made it is merely of the result of the vote of the people of the several districts concerned. He possesses no disorganizing and consolidating power of his own. From what has been said it is clear that the third and fourth conclusions of law follow as a matter Of course from the facts found.
If the supplemental answer tendered stated no defense the refusal to allow it to be filed was not erroneous. The question presented is the constitutionality of chapter 244 of the Laws of 1907. The recent amendment to the constitution provides as follows:
“In all cases where a general law can be made applicable no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of this state.” (Art. 2, sec. 17; see Laws 1905, ch. 548.)
The power and duty of the court under this amendment were fully discussed in the case of Anderson v. Cloud County, ante, p. 721. The act of 1907 is clearly special, and the question is if a general law could have been made applicable. It is claimed that this is a curative act. If so, the question is if a general curative act might have been made applicable. „ If, however, the act is a piece of purely creative legislation, the question is if the subject of the disorganization and consolidation of adjacent school districts may properly be included within the scope of a general law.
Although curative in form, section 1 is utterly nugatory as a curative measure. The petitions in the three districts concerned made a definite request which did not include the consolidation of districts No. 8, No. 81 and No. 7 at all. They were not defective or irregular because of that fact. They simply expressed a wholly different desire, and when legalized and validated they merely become sufficient for the clerks of the several districts to call elections upon propositions which do not relate to the formation of a union district from the three districts affected. The notices did not relate to the consolidation of the three districts named. They were not defective or irregular in that they did not do so. They were just what they purported to be, and when leghlized and validated they merely served as warnings to the people of elections which did not have for their object the formation of the so-called “union district No. 1.” No district voted to consolidate districts No. 8, No. 81 and No. 7, but the elections were not defective or irregular on that account. To validate and legalize the election in No. 8 is to declare legal and valid the vote to form a union district composed of No. 8, No. 11, No. 81, No. 87 and No. 7; to validate and legalize the election in No. 81 is to declare legal and valid a vote to form a union district composed of No. 81 and No. 8; and to validate and legalize the election held in No. 7 is to declare legal and valid a vote refusing to disorganize or consolidate at all.
If the three districts had voted to consolidate with each other, notwithstanding the fact that the petitions and notices did not contemplate such action, the legislature might have declared the vote valid and binding. Then there would have been a creative result based upon defective preliminary proceedings to be legalized so that it might avail. But such is not the case. It is impossible for the legislature- to put into the petitions a request for an election to vote upon the consolidation of districts No. 8, No. 81 and No. 7. It is impossible for it to put into the notices information which they were not intended to afford and which they did not convey. While it may override the result of an election, it cannot change the vote of a man or of a district for one proposition into a vote for another proposition, or change a vote against a given proposition into a vote for it. Therefore the result of section 1 is to legalize and validate conduct on the part of the-majority of the voters in the three districts concerned which prohibited the formation of, so-called “union district No. 1,” and which left the corporate integrity of the separate districts unimpaired.
If section 1 had been omitted and section 2 had provided simply that the declaration of disorganization by the two county superintendents should have the same force and effect as if it had been made with jurisdiction, section 2 might perhaps be regarded as curative. But the legislature did not wish to be in the attitude of saying that acts of the county superintendents not founded upon a vote of the districts affected should be binding. It plainly intended that the scheme of the law of 1901 should be adhered to, and so by section 1 it made a futile effort to create and supply the integral, antecedent steps of petitions, notices and votes. Only upon the consideration that the acts of the two county superintendents rested upon a foundation thus made legal did it undertake to validate their conduct. Section 2 being thus bound up with section 1, its only effect is to say that a pure fabrication is to be taken as duly and regularly declared and recorded.
From what has been said it is clear that the act comes to nothing when regarded as curative or confirmatory. It does not and cannot fill the office of remedying defects in the formation of something which the people endeavored to create and only failed in creating because of irregularities in the proceeding. If it has any force at all it is to bring into existence and stamp as theirs measures which the people never took, and, in opposition to their votes,'to declare as theirs a result which the people never had in contemplation and did not bring about. If it accomplishes this it simply originates a union district from three separate districts which it disorganizes. Such being the only possible- effect of the act, it requires no argument to show that a general law may be made applicable to the subject. The conclusion inevitably follows from a consideration of the nature of the subject, and the legislature has never experienced any difficulty in framing a general law to reach the desired end. Section 1 of article 7 of chapter 76 of the Laws of 1861 effectually dealt with the matter. This act was carried upon the statute-books (Comp. Laws 1862, ch. 181, § 63; Gen. Stat. 1868, ch. 92, § 63) until 1876, when' the school laws were revised. It then was reenacted as section 1 of article 7' of chapter 122 of the Laws of 1876. The act of 1901, which evidently supplanted the act of •1861, although the latter was not then expressly repealed, shows what may be done by general law upon the subject.
It is clear that the attempt to create a union district by sections 1 and 2 of the .act of 1907 is void, and section 3, being a part of the same legislative scheme, fails also.
The supplemental answer.stated no defense, and the judgment of the district court is affirmed. > | [
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Per Curiam:
This is an action for damages for injuries received at a railway-crossing on one of the public streets of Abilene. The jury found a verdict for $825 in favor of plaintiff, and, among other special findings, returned the following r
“(6) Ques. Was not the engine moving very slowly at the time the plaintiff’s horse became frightened? Ans. Yes.”
“(8) Ql On the night in question, did the trainmen make up the train at Abilene in the usual and proper manner ? A. No.,
“(9) Q. In mailing up the train on the occasion of the accident to the plaintiff was it necessary to run the engine across Buckeye avenue ? A. Yes.”
“(12) Q. If you find for the plaintiff, then state what negligent act or omission resulted in the injury to the plaintiff. A. By not ringing bell.
“(13) Q. Did the plaintiff see the engine which he claims frightened his horse before he had reached the south side-track and before he attempted to cross the tracks? A. Yes.”
Buckeye avenue runs north and south. Three tracks of the railway company cross this street leading east. The north track runs a little southeast. It was almost dusk, about 7:30 in the evening, when plaintiff, who was driving a horse and buggy, approached the crossing from the south. Plaintiff’s evidence tended to show that at a safe distance he stopped, looked and listened, and, seeing the engine standing still, with the pilot near the west side of the street, attempted to drive-across the street in front of it, not expecting it to be-moved. There was evidence that when he was on the tracks the engine started east on the north track, suddenly, without warning, coming directly toward his horse, which became frightened, and, throwing him. out, caused the injuries for which he recovered.
The principal contention is that the court erred in not rendering judgment on the special findings. Plaintiff was not guilty of contributory negligence per se because he attempted to drive over a public crossing in front of an engine which he testifies was standing still, with no sign or indication of an intention on the part of the enginemen to move it. (Railway Co. v. Dawson, 64 Kan. 99, 67 Pac. 521.) In volume 2 of Thompson’s. Commentaries on the Law of Negligence, section 1677, it is said:
“The attempt of a traveler to cross in front of an-engine or a train standing near the crossing is not' generally so inherently dangerous as to preclude a recovery of damages, if the engine or train is unexpectedly started forward upon him, but in most such cases the question whether he has been guilty of negligence-will go to the jury, especially where it moves upon him without giving any signals.”
.(See, also, 3 Ell. Railroads, 1770, note 4.)
The authorities relied upon by the railway company are largely those in which the train was either approaching the crossing or the engine was fired up and' manned, with all appearances of being about ‘to move-over the crossing.
It is said that there was no occasion for ringing the-bell because plaintiff saw the engine and was- bound to take notice that it might be moved. But was he not. justified in assuming that, under the circumstances, it would not be moved over the crossing without some signal being first given? . There is no statute requiring-the giving of signals upon approaching a crossing of a. public street in a city, but the duty to give such signals often rests upon those in charge of an engine or train before starting it across the street.
“It is a sound conclusion that it is the duty of the engineer in charge of a train standing still, before starting his engine across a street, not only to give timely warning of his intention, but also .to see whether his train will not be likely to strike a traveler or frighten his horses.” (2 Thomp. Com. Law of Neg. § 1568.)
In the present case, while the engine was standing still several vehicles were using the crossing. Plaintiff had started to cross before the engine moved and must have been in plain view of those in charge of it had they kept the usual lookout. It was their duty, regardless of any statutory requirement, to ring the bell befoi-e starting the engine over the crossing, as well as to take precautions not to strike the plaintiff or to frighten his horse. Ordinary caution and prudence imposed these duties, under the circumstances.
It is true, as argued, that the ringing of the bell might have frightened the horse, but the company would not have been liable for merely ringing the bell in the usual manner, unless there was some circumstance that made it negligence to do so.
It is insisted that in any event the failure to ring the bell was not the proximate cause of the injury. The finding that the failure to ring the bell was the negligent act must be construed as meaning the starting of the engine without first ringing the bell. Of course, if the engine had not been moved, the failure to ring the bell could not have caused the horse to frighten. The proximate cause in the law of negligence is not the cause nearest in point of time or in sequence of events. There may be, and frequently is, an intervening agency —something which it is only reasonable to expect would or might happen; and in such cases the remoter cause in point of time or in sequence of events is said to be the proximate cause, for the reason that the final result was made possible by the first negligent act-or omission. (A. T. & Santa Fe Rld. Co. v. Stanford, 12 Kan. 854, 15 Am. Rep. 362; C. R. I. & P. Rly. Co. v. McBride, 54 Kan. 172, 37 Pac. 978.) In the Stanford case it was said:
“Any number of causes and effects may intervene between the first wrongful cause and the final injurious consequence; and if they are such as might, with reasonable diligence, have been foreseen, the last result, as well as the first, and every intermediate result, is to be •considered in law as the proximate result of the first wrongful cause.” (Page 377:)
.The moving engine in this case frightened the horse; but the negligence was in moving it without first giving a warning of the intention to do so, and this was the proximate cause of the horse’s becoming frightened.
The case of St. L. & S. F. Rly. Co. v. Payne, 29 Kan. 166, which is cited, is in no sense a parallel one. There' the team was standing tied near a crossing outside the limits of a town or city. It was said that the failure to sound the whistle eighty rods from the crossing could not have been the cause of the team’s becoming frightened, The owner was not using the highway and not expecting to do so. His claim was that if the whistle had sounded he would have come from the mill and looked after his team. It was held that the company •owed him no duty under the statute. In the present case plaintiff was using a public crossing, and, while no statutory duty was imposed upon the company, there was the duty to give travelers warning before starting the engine across the street, under the circumstances as they existed. The evidence tended strongly to show that the men in charge of the engine started it over the crossing without being aware, as they should have been, that plaintiff was on the crossing, and only discovered his presence after he was thrown out.
We have found nothing prejudicial in the instructions or in the other matters of which complaint is :made, and therefore the judgment is affirmed. | [
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Per Curiam:
This is an action by J. C. Murdock against the Robins Mining Company on an account for miners’ supplies and merchandise sold. There was á trial to the court and judgment was rendered for the plaintiff. The defendant brings error.
A former judgment in the same case was reversed for error in admitting evidence of certain statements made by the president of the mining company. (Robins v. Murdock, 69 Kan. 596, 77 Pac. 596.)
For some reason not apparent there has been inserted in the record the entire proceedings of the ■former trial. The trial judge at the settlement of the case-made ordered this stricken out, and lines were drawn through the pages referring to the first trial. Plaintiff in error’s brief, However, contains hundreds ■of references to what is termed the “first record,” which it is insisted is before us for examination. The cause was remanded for another trial. The second trial had nothing to do with the first and the record of that trial has no place in these proceedings and cannot be considered.
There are twenty-two assignments of error; most of these are abandoned in the brief, and we are obliged to ignore others. For instance, an extended argument is made, with numerous citations of authorities, in support of a claim that it was error to overrule a demurrer to the petition, while the record itself makes no reference to any demurrer having been filed or passed on. Again, it is argued that the court committed error in overruling the demurrer to plaintiff’s evidence. As there was no demurrer to the evidence filed or presented this is easily disposed of.
It is argued at great length in the brief that the trial court refused to follow the law of the case as declared in the former opinion in this court. There is no ground for this contention. The only rule of law announced in the former opinion which controls this case is that cer tain admissions by the president of the mining company, not being shown to have been made by him while engaged in the business of the corporation, were not admissible as evidence to bind the corporation. Upon the second trial no such testimony was offered.
The principal, and, indeed, the only contention deserving consideration is the claim that the judgment is not supported by the evidence. The petition contained several causes of action. Some of these were on an account for supplies sold direct to the Robins Mining Company; the others'were for supplies sold to Robins & Co. The latter, it seems, was a partnership which for several months conducted mining operations on the mining property under a lease. A transfer of all the rights under the lease and of all the property was made to plaintiff in error. The transfer was in writing and for the nominal consideration of $100. At the same time the partnership bank account, amounting to $153, was transferred to the new company, and the latter continued the operation of the mine without any apparent change of ownership. Supplies were ordered and furnished in the same way as before the transfer, and cash payments on account were made from time to time by the new company. In several instances the new. company paid on account more than the purchases it had made amounted to. The company also assumed other indebtedness of the partners due to the bank. These and other circumstances in evidence were, in our opinion, sufficient to support the judgment.
The judgment is affirmed. | [
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Per Curiam:
McCalla brought an action of ejectment, claiming under a sheriff’s deed. The judgment upon which the execution issued was rendered February 11, 1901. The judgment debtor conveyed all his interest in the real estate to the Knight Investment Company October 26, 1898. The conveyance was not. recorded until after the levy of the execution and sale of the real estate by the sheriff. The sole controversy involves the priority of the judgment lien as against an unrecorded deed executed before the rendition of the judgment. The trial court rightly held that the sale under execution conveyed only such title as the judgment debtor had in the real estate at the time the judgment lien attached, and that the judgment creditor was not an innocent purchaser. (Harrison & Willis v. Andrews, 18 Kan. 535; Holden v. Garrett, 23 Kan. 98; Bowling v. Garrett, 49 Kan. 504, 518, 31 Pac. 135, 3 Am. St. Rep. 377; Civ. Code, § 419; Gen. Stat. 1901, § 4868.) The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The question in this case is whether the anterior proceedings are sufficient to uphold an administrator’s deed. The district court so held, in an action of ejectment brought by an heir at law against claimants under the deed.
The entire record of the probate court containing the proceedings upon which the deed in question is based was introduced in evidence. No order is disclosed requiring notice of the time and place of hearing the petition to sell and fixing the length of time and the manner in which notice should be given. A copy of a printed notice appears in the files. The court made an order that the land be sold, and after a sale had been made confirmed it and ordered the deed to be executed. The statute provides that an administrator’s deed shall be presumptive evidence that the administrator observed the directions and complied with the requisitions of the law. (Gen. Stat. 1901, § 2938.) Are these things enough ?
In this state proceedings by an administrator of the estate of a deceased person to sell real estate are regarded as adversary to the heir at law. The heir must be notified of the hearing upon the petition to sell or the court has no jurisdiction to order a sale. It is the ordinary case of obtaining jurisdiction of a party before authority to proceed against him attaches. The manner in which notice shall be given, whether by personal service, by publication or otherwise, and the length of time for which notice shall be given, must be directed by the court. (Gen. Stat. 1901, § 2923.) -An order prescribing these essentials of notice is an indispensable requisite to a valid notice. Without it there is nothing .upon which notice can rest. A notice without an order for it in its pedigree avails nothing. In the case of Mickel v. Hicks, 19 Kan. 578, 21 Am. Rep. 161, it was said:
“Where the court determines what kind of notice must be given, no right to give any notice exists until the court has made its determination. ... A notice, without an order prescribing the manner .thereof, has no force.” (Page 582.)
In the case of C. K. & N. Rly. Co. v. Cook, 43 Kan. 83, 22 Pac. 988, the syllabus reads:
“If notice to the heirs and persons interested, of the time and place at which an application by an administrator to sell the real estate of the deceased will be heard, is not ordered by the probate court, and is not given to such persons, the sale is void.”
There are, therefore, in proceedings of this kind two jurisdictional requirements: First, an order prescribing notice, and, second, a notice which fulfils the terms of the order; and the circumstance that a court proceeds to order a sale as if it had first obtained jurisdiction, and then confirms the sale, cannot supply the jurisdictional facts necessary to authorize it to enter upon a hearing of the petition to sell. In many instances, after a notice has been given or an act has been done which the court might have authorized, the notice or the act may be adopted and approved as if it had first been authorized. But this rule does not apply to jurisdictional matters. Unless there be jurisdiction to begin a proceeding everything done in the course of thé proceeding is void, including attempts at ratification.
The terms of the statute relating to the presumptive evidence afforded by an administrator’s deed go only to the extent of making the deed prima facie proof that the administrator complied with whatever lawful orders the court made and with whatever requirements the statutes themselves placed upon him. It does not make the deed prima facie evidence of jurisdiction in the court.to bind the heir. In this respect the statute is much narrower than the one prescribing the evidentiary, effect of tax deeds. (Gen. Stat. 1901, § 7676.)
If, however, the statute should be interpreted to mean that an administrator’s deed is prima facie evidence of the validity of the entire proceeding upon which it is based, it would do no more than dispense with an appeal to the-record in -the first instance. Whenever the record is produced it must control. If it should be shown that the required record is destroyed or has been lost, then, in the absence of secondary evidence, the presumption attending the deed might be allowed to prevail, as in the case of Morrill v. Douglass, 14 Kan. 293, 304. But when the complete record is offered in evidence it proves what steps essential to jurisdiction were in fact omitted as well as what steps were in fact taken. It establishes the fact that nothing was done except what it shows, and that whatever it shows to have been done -was done in the manner it shows.
The foregoing propositions are not seriously contested in the brief for the defendants, but it is urged that the language of the statute contemplates that the requirements respecting notice of the hearing upon a petition to sell real estate may be imposed by mere verbal direction to the administrator and need not appear on the journal of the court. The probate court is made a court of record for the very purpose of preserving indubitable and indisputable evidence of its acts. Proceedings whereby parties may be deprived of their real estate are among the most important which, the probate court has to conduct. Without jurisdiction such proceedings are coram non judice; and it would destroy the entire theory of judicial records if jurisdictional orders respecting such proceedings were left to. depend upon the uncertain memory of spoken words. (See 4 Wig. Ev. § 2450.)
It frequently occurs that the records of probate courts are carelessly made up and do not in fact exhibit all that took place, or defectively express what actually occurred. In such a case the remedy of a party who is bound by the record is to have it corrected to speak the truth. But the record of a transaction in a court of record must supersede all other proof.
Many defects in the proceedings other than the one discussed are pointed out. Some of them are serious, but by liberal interpretation they may all be. passed as irregularities.
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
Valentine, J.:
E. A. Guptil and Charles Hinton were partners in business. H. McFee and H. Riley obtained a judgment against them, and an execution was issued on said judgment. The officer to whom the execution was directed levied on the partnership goods of Guptil & Hinton, and took them into his possession. Guptil & Hinton in a joint action as partners then replevied them from the officer, claiming that the goods were exempt by law from execution. A trial was had in the replevin case before the court and a jury. The verdict was for the defendants, (the officer and McFee and Riley,) and against the plaintiffs, Guptil & Hinton, and judg meat was rendered accordingly. The plaintiffs bring the case to this court.
We have all the evidence presented to the court below before us. The facts were undisputed. In fact they were nearly all admitted by the pleadings, and the others were indisputably shown by the evidence. There was no conflict in the evidence. The only question therefore which was to be determined in the court below, and to be determined here, is purely a question of law. That question is, whether partnership property consisting principally of merchandise bought to be sold again for profit is, while still in the hands of the firm, exempt by law from an execution against the firm. If .said property was exempt the judgment of the court below is •erroneous. If it was not exempt, then the judgment is correct. We shall not examine the rulings of the court below in detail, but will simply consider whether the said property was exempt or not. The plaintiffs in error claim that the ■said goods were exempt under the eighth] subdivision of § 3 of the exemption law, which reads as follows :
“Sec. 3. Every person residing in this state, and being the head of a family, shall have exempt from seizure and sale upon any attachment, execution or other process issued from any court in this state, the following articles of personal property: * * * Eighth, The necessary tools and implements of any mechanic, miner or other person, used and kept for the purpose of carrying on his trade or business, and in addition thereto stock in trade not exceeding four hundred Hollars in value.” (Gen. Stat., 473.)
• We suppose it will be admitted that the said goods were mot exempt at all unless they were exempt under the provision •of the statute just quoted. We are of the- opinion that-they wfere not exempt at all, and for the following reasons: First, they were all partnership goods, still in the hands of the firm against whom the execution was issued, and hence said exemption law does not apply: Pond v. Kimball, 101 Mass., 105. Second, they were (principally if not entirely) goods bought to be sold again as merchandise, and were not the goods, the tools, implements, or stock in trade, of a mechanic, miner, or some other person, who earned his livelihood in whole or in part by the use of tools or implements, and to the exercise of whose trade or business tools or implements were necessary. Grimes v. Bryne, 2 Minn., 90, 104, 105.
The reasons given in the case of Pond v. Kimball, supra, why partnership goods are not exempt from execution are very strong, and we could not if we would, add anything to them. That our statute exempts property in favor of individual persons only, and not in favor of copartnerships or corporations, we would suppose would hardly be controverted; and yet it seems to be controverted in this very action. The plaintiffs in this action sue jointly, as partners. They claim as partners that the property is exempt. The property has never been divested of its partnership character. Now if it be admitted that our statute exempts property in favor of a copartnership or corporation, will’, it be claimed that such copartnership or corporation may take four hundred dollars worth only of stock' in trade, as an individual may, or will it be claimed that such copartnership 'or corporation may take an amount equal to four hundred dollars for each individual member of the copartnership or corporation, let the number of such members be great or small? And how is it to be determined whether the copartnership or corporation will desire to reserve anything as exempt? May a majority of the members determine the matter? Or may those who own an interest greater than one-half determine the matter? And will the minority, or those who represent the less interest, be governed by the majority, or those who represent the greater interest, or vice versa? If one portion of the members is not to be governed by the other portion, or if four hundred dollars’ worth of the property is to be exempt in favor of some of the members, and not in favor of others, how is the exempted property to be separated from the balance? Can the officer effect the separation? Can any number of the members less than a majority, or can even a majority do it? Some of the members may have a great interest in the copartnership or corporation. Others may have only a small interest. Some members of a copartnership have only a slight interest in the profits of the business. But if we adopt the theory, which is the true one, that the exemption is in fayor of individuals only, and not in favor of copartnerships or corporations, we are equally led to the conclusion that partnership property is not exempt from execution. “ Property belonging to the firm cannot be said to belong to either partner as his separate property. • He has no exclusive interest-in it. It belongs as much to his partner as it does to him, and cannot in whole or in part be appropriated (so long as it remains undivided) to the benefit of his family. It may be wholly contingent and uncertain whether any of it will belong to him on .the winding up of the business, and the settlement of his account with the .firm.” (Pond v. Kimball, 101 Mass., 107.) Suppose the firm should consist of twenty members: could they hold in the aggregate'$8,000 worth of •property, as “stock in trade,” exempt from'execution, and continue to do business.on it without paying their partnership debts, or would they be confined to $400 worth? And suppose that nineteen of the members had no property in the world not exempt from execution, and that the twentieth one had an abundance outside of the copartnership property: could these nineteen, by claiming their exemptions, compel the twentieth one to pay all the copartnership debts? And suppose this twentieth one owned nearly all the capital that had been put into the copartnership: could the nineteen -hold their exemptions not only as against the creditors of the firm ■and others, but also against this twentieth member? We think not. One partner has just as much right to control the disposition of partnership property as another. One partner has just as much right to say that a certain specific article of partnership property shall not be exempt, as another has to say that it shall be exempt. In fact he has a better right, for the partnership was certainly not created for the purpose of holding property exempt from execution. If a party desires to retain his personal property as exempt from execution, he must either not put it into a copartnership, or he must get it out of the copartnership and make it his own exclusively before an execution against the firm is levied on it. If the execution should be against him alone, we of course ex2)rcss no opinion. Neither do we express any opinion where his interest in the property is fixed and certain, as a joint interest, or an interest in common, or an interest consisting of an aliquot part, and not merely a contingent copartnership interest. The case of Pond v. Kimball was decided by the supreme court of Massachusetts in 1869, and is the last decision upon this question that we are aware of. Two years before that time (in 1867,) the Court of Appeals of New York decided the same question: Stewart v. Brown, 37 N. Y., 350. We know of no other decisions on the question. The decision in New York is exactly the reverse of the decision in Massachusetts. But while the Massachusetts decision is the most recent, we also think the reasons that it gives are much the stronger, and therefore we follow it in preference to the New York decision.
Upon the other proposition there are no conflicting decisions. It has been decided in Minnesota tqjon a statute almost identical with ours as follows: “The exemption law does not contemplate that all or any of the enumerated articles shall be exenqh in the hands of every citizen without regard to circumstances, but must receive a construction in accordance with its general intent. The words of the eighth section (subdivision) were intended to comprehend a class of citizens who earn their livelihood by the use of tools and implements, in whole or in part. A man may derive his j>rincipal support from some business in the exercise of which tools and implements are necessaiy, and still not be strictly a mechanic or miner. Such persons were intended to be included by the words, ‘or other person/ in this subdivision of the act, and it should read ‘the tools and instruments (inrplemcnts) of every mechanic, minor or other person to ike exercise of lokose trade or business tools or implements are necessary, used or kept for the j>urpose of carrying on his trade or business, etc. And the next clause of the same subdivision, ‘and in addition thereto stock in trade not exceeding four hundred dollars in value/ applies only to the same class of mechanics, miners or other persons/ and not to tradesmen and merchants generally, in the exercise of whose profession or business tools and implements arc unnecessary.” Grimes v. Bryne, 2 Minn., 90, 104, 105. For the reasons to support this proposition, we would refer to those given by the Minnesota court.
It is probable that if the property levied on in this case, had not been partnership property a very small portion of the same would have been exempt. But as all of it was partnership property, and very nearly all of it merchandise, none of it was exempt. The judgment of the court below is affirmed.
Kingman, C. J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to compel a specific performance of a parol contract to sell land. Payment of about two-thirds of-the purchase-money, and tender of the remaining, .possession, and the making of valuable and lasting improvements since the contract, with the knowledge of the vendor, were the grounds upon which a decree was asked. The district court found the facts as alleged, and rendered a decree accordingly. Plaintiffs .in error, defendants below, allege in error, first, that no- specific performance should have been decreed, because, at the time of the parol contract the vendee was already in possession. In other words, delivery of possession is' essential to the validity of a parol contract to sell land, and delivery being impossible where possession is already held, a parol contract to sell to one already in possession can never be enforced. -We do not so understand the law. A parol contract to sell land, as a contract, is always void, not because of any immorality or , , .. _ it illegality, it is true, but because the law does not recognize such method of transferring title to real estate. Part performance takes such a case out of the statute of frauds, not because it furnishes any-greater proof of the contract, or because it makes- the contract any stronger, but because it would be intolerable in equity for the owner of a tract of land to knowingly suffer another to invest time, labor, and money on that land, upon the faith of a contract which did not exist. Part performance, working injury to one party, unless followed by full performance, is necessary to enforce performance by the other. Equity bases its right to interfere upon the ground that without its interference injury and wrong will result, and not on the ground that it is morally right that men should perform their contracts. “ The ground of the relief in chancery,” says Chancellor Kent, in Parkhurst v. Van Cortland, 1 Johns. Ch. 274, “is the fraud in permitting a parol agreement to be partly executed, and in leading a party to expend money in the melioration of the estate, and then to withdravf from the performance of the contract.” In 1 Leading Cases in Eq., 723, the editor thus lays down the law: “A party who has permitted another to perform acts on the faith of an agreement, shall not insist that the agreement is bad, and that he is entitled to treat those acts as if it had never existed.” Also, see cases cited by the editor. It will readily be seen from this what part performance will take the case out of the statute. Payment of the purchase-money will not, for the money can be recovered by action. Delivery of possession will, for without the contract the party entering will be a trespasser, and, if the vendor be permitted to deny the sale, liable to an action of trespass. A fortiori will delivery of possession, and the making of lasting and valuable improvements with the knowledge of the vendor. "With equal reason should payment of the purchase-money and the making of lasting and valuable improvements with like knowledge, be sufficient to uphold the sale. Such a case comes clearly within the principles laid down. The vendee is led on “to expend money in the melioration of the estate,” and then told that he has no interest in such estate. One needs.no precedent to justify him in asserting this to be a fraud. Delivery of possession is often a strong circumstance to prove the contract, for an owner would rarely deliver possession of his real estate to a stranger except under some contract. But the contract may be proved without that circumstance. Here, it is found. The manner in which possession is held often discloses under what claim of title it is held. A change in the manner of holding may indicate a change in the claim of title almost as clearly as a delivery of possession. And an acquiescence by a previous owner and landlord, in the manner of holding, may show his recognition of a sale. The change ‘in the manner of holding should be such as is referable only to the fact of a sale, and not merely to a continuance of the tenancy. Browne in his work on the Statute of Frauds, §478, says: “The rule which controls all cases where possession is relied upon is, that merely taking or holding possession is of itself nothing. The question is, quo animo it is taken, or held; and this is not allowed to be answered by parol proof of the agreement between the parties. But in cases Avhere a tenant continues in possession under an alleged agreement for a new tenancy, it is answered by proof of any act on his own part done with the privity of the owner of the fee, which is inconsistent with the previous holding, and is such as clearly indicates a change in the relation of parties.” A party in possession loses all the benefit of a delivery of possession as evidence of the alleged parol contract, and may therefore be put to clearer proof thereof; but if it is clearly established aliunde, he may have that contract enforced. 1 Leading Cases in Eq., 724-726; Mahon v. Baker, 26 Penn. St., 519; Brown v. Jones, 46 Barb., 400; Spear v. Owendorf, 26 Md., 37.
Again, plaintiffs in error claim .that this land was a part of their homestead, and that therefore under the constitutional provision concerning homesteads (§ 9, art. 15, const, of Kansas,) a parol contract to sell it could not be enforced. The district court found that the defendants Edwards and his wife “jointly entered into and made” this parol agreement. Tire testimony abundantly supported this finding. The plaintiff swore positively to the making of the agreement by both the defendants, and was corroborated as to Samuel E. Edwards by many witnesses. Mr. Edwards while on the stand was not questioned as to the .contract, and Mrs. Edwards was not a witness. We need not however investigate the question here suggested, for in our opinion this- land never formed a part of the defendant’s homestead. The tract was one of about ten acres situated in the southeast comer of a forty-acre tract, and was separated from the remaining portion by the road-bed of the Kansas Pacific railroad. In November 1865 the forty acres belonged to one S. R. Hungerford. At that time the plaintiff occupied this ten-acre tract as tenant-at-will of Hungerford. During that month Edwards bought the forty acres, and in February 1866 moved onto that portion of the forty lying north of the railroad track. During the same month he and his wife made the parol contract with plaintiff. He never was in the actual occupation of the ten acres in dispute. True, he had but the forty acres, and intended when he bought it to make the whole tract his homestead. At least that is his testimony, and there being no counter evidence it must be taken as proved, though the district court declined to find upon that fact, probably because it was thought immaterial. The possession of the plaintiff, commencing before the purchase by defendants, continued unquestioned, and with the assent of defendants, until after the commencement of this suit in November, 1869. Under these circumstances we do not think this ten-acre tract ever properly became a part of the defendants’ homestead. We know the spirit which animates the people of Kansas, the makers of our constitution and laws, on this homestead question. We note the care with which they have sought to preserve the homestead inviolate to the family. We have no disposition to weaken or whittle away any of the beneficent constitutional or statutory provisions on the subject. We know that the purchase of a homestead, and the removal onto it, cannot be made momentarily cotemporaneous. It takes time, for a party in possession to move out, and then more- time for the purchaser to move in. Repairs may have to be made, or buildings partially or wholly erected. Now, the law does not wait till all this has been done, and the purchaser actually settled in his new home, before attaching to it the inviolability of a homestead. A purchase of a homestead with a view to occupancy, followed by occupancy within a reasonable time, may' secure ah initio a- homestead inviolability. Yet occupation is nevertheless an essential element to secure this inviolability. “A homestead * * * occupied as a residence by the family,” etc., is the language of both constitution and statute. Here the defendants never occupied this ten-acre tract, but finding it in the* possession of a third party, left it in her possession, without questioning her right, for four years; and finding her a tenant, made her a vendee during the same month in which they commenced their occupation of the remainder of the forty acres. To hold that this ten acres ever fell within the terms, “occupied as a residence by the family” of Edwards, seems-to us trifling with both law and language.
It is further objected that the description is insufficient. It is described as “ten acres of land situate on the south side of the Kansas Pacific railway track, being the southeast corner of the southeast quarter of the S.W.£ of sec. 26, X. 10, of Range 21, Leavenworth county, Kansas.” It appears from the finding of the court that south of' the railway, and within said forty-acre tract, were “ten acres- and a small fraction of an acre.” Whether this fraction was so small as to come within the rule, de minimis non curcif lex, the finding does not disclose. Turning to the testimony, and the- party who surveyed the land testified, that there was “about ten acres south of the railway, but could not tell the exact amount without his notes.” The plaintiff testified that defendants sold her the land lying south of the railway as ten acres. We think there will be no difficulty in determining what land is covered by the decree.
These being the only important questions in the case, the judgment of the district court must be affirmed.
Valentine, J., concurring.
Kingman, C. J., dissenting. | [
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The opinion of the court was delivered by
Valentine, J.:
It is unquestionably “the duty of the county attorneys” of this state “to appear in the courts of their respective counties, and prosecute or defend on behalf of the people, all suits, applications, or motions, civil or criminal, arising under the laws of this state, in which the state or their county is a party or interested:” Gen. Stat., 284, §136.- And also, “The county attorneys shall, without fee or reward (other than their salaries) give opinions and advice to the board of county commissioners, and other civil officers of their respective counties, when requested by such board or officers, upon all matters in which the county is interested, or relating to the duties of such board or officers, in which the"state or county may have an interest:” Gen. Stat., 284, § 138. And this they must do whether the matters upon which they give their opinions or advice are to be prosecuted or defended in their own counties, or elsewhere, or not at all. And the rule with regard to compensation unquestionably is, that whenever the law requires the county attorney to perform any particular service or duty he cannot receive or recover any compensation for the performance of such service or duty in addition to his salary and the specific fees allowed by statute. Gen. Stat., 284, § 139. His salary is intended to be sufficient compensation for the performance of all services and duties required by law, except where the statute otherwise specifically provides for other or additional compensation. But where the county attorney performs services for the county which are not required of him by law he may be paid therefor by the county the value thereof as though he were not the county attorney; and the county board may contract with him for the performance of such services as are not required of him by law, in the same manner and to the same extent as they could contract with any other person for the performance of such services. There is no law that requires a county attorney to attend any court, or do any business, civil or criminal, that requires his personal attendance outside of his own county; and therefore if he should perform any such services for Ms county he may be allowed such compensation therefor as his services are reasonably worth. For instance: where a suit for or against his county is to be prosecuted or defended beyond the limits of his county, he cannot be allowed any compensation in addition to his salary for any opinion or advice he may give to the county board concerning said suit; but if he attends the court personally, and prosecutes or defends for the county, he may be allowed a - compensation for such last-mentioned service in addition to his salary. In the case at bar, the court below finds that the county board employed the plaintiff below to attend a court outside of the county, and defend .a suit in which the county was interested, and therefore the .services were performed under a special contract, and therefore we think he may recover in this action.
II. Where a claim against a county is properly presented to the board of county commissioners, and disallowed in whole or in part, the claimant may take the same to the district court either on appeal or by commencing an original action. A county is a quasi corporation which may sue and be sited as other corporations; (Gen. Stat., 253, §1;) and the board of county commissioners are the representatives—the financial agents—the business ■ managers-—of such corporation; and in their name all suits in which the county is interested must be prosecuted or defended: Gen. Stat., 254 § 5. A claim presented to the county commissioners is simply a claim presented to the county, and a retusal by them to pay it is simply a refusal of-the county to pay it. And where a county refuses to pay a •claim against it there seems to be no good reason why it may not be sued as well as any other corporation, or as any individual, under like circumstances. It is true, that the county •commissioners in some cases act in a kind of quasi judicial •character, and when they do so act their determinations are final ^unless appealed from. But when they allow or disallow a claim against their county—against their principal—they •do not act in a judicial capacity. They are not then a court, Acting impartially between two contending parties, but they Are simply the agents of one of the parties, and acting for .such party. It is also true that an appeal is given in all cases from the decision of the board of county commissioners: ■Gen. Stat., 260,, § 30. But no attempt has been made on .account of giving such right of appeal to abridge the right of the claimant which he otherwise has to commence an •original suit where his claim has been disallowed in whole or in part by the board. In such a case he has two remedies, •either of which he may resort to at his option. That he has .the-right to sue the county in such cases, we would refer to .the cases of Trumbull Co. v. Hutchings, 11 Ohio, 368; Price 7». Sacramento Co., 6 Cal., 254. Where the county board Allows a part of a claim, and the claimant receives that part, Ave do not wish to be understood as deciding that the claimant may then appeal or sue for the balance. (See Pulling v. Sup’rs -of Columbia Co., 3 Wis., 337.)
There are no other questions raised in this case Avhich we need to consider. The petition was sufficient upon an objection to the evidence. The second' defense set-forth in the Ánswer Ayas not sufficient as & defense to the action. The findings of the court Avere sustained by sufficient evidence; and the judgment followed -the findings. • Whether parol •evidence was competent to prove the action of the county commissioners with regard to making a contract with the plaintiff below, is not before us, as said evidence (which was sufficient to prove said fact if competent to be received,) was not objected to for that reason, nor for any reason, except-that “the petition did not state facts sufficient to constitute a cause of action.” If the evidence had been objected to because it ivas parol, the record evidence could then have been introduced, provided such evidence was necessary. Or, if there was no such record evidence then the question of its-necessity, and the question of the competency of parol evidence, would havé been fairly raised before the court. ,The judgment of the court below must- be affirmed.
Kingman, C. J., concurring.
Brewer, J., did not sit in the case. | [
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The opinion of the court was delivered by
Brewer J.:
This was an action of replevin brought before a justice of the peace, and taken on appeal to the district court. Verdict and judgment were for the defendant, which the plaintiff now seeks to reverse. The testimony is not preserved in the record. A charge to the jury, signed by the judge, is certified by the clerk as a part of the pleadings and proceedings. But there is nothing to show that x . ° . . ° tins charge contained all the instructions, it is stated in an unsigned bill of exceptions that certain instructions were asked by plaintiff and refused. But even this unsigned bill of exceptions fails to set out the instructions refused, and to it is appended a certificate of the clerk that the instructions thus claimed to have been refused were never in his possession, and that he had no knowledge of them. For all that appears, instructions given at the instance of. defendant, or other instructions given by the court of its own motion, may have met the very objections raised by counsel for plaintiff to those given. So also in the absence of the testimony we are unable to say that the instructions given were not both applicable and necessary to the case presented. Ordinarily, when none of the testimony, and only part of the charge is preserved, it will be impossible to-say that any error has been committed prejudicial to the party complaining. Town of Leroy v. McConnell, 8 Kas., 273.
Another point presented is, that the verdict is incomplete and insufficient to sustain any judgment, and that the judgment is for so much money, the value. of the property, and not in the alternative for the return of the property or the value thereof in case a return cannot be iiacp The bill of particulars alleged ownership and wrongful detention. The amended answer filed in the district court, besides a general denial, contained an allegation of ownership and right of possession. The verdict was, “We the jury find for the defendant, and Ave assess the Avalué of the property replevied at $25, and aa^o assess the defendant’s damages at $1.16-|.” No objection to the form or the completeness of the verdict Avas made at the time it AAras rendered. Under the justice’s act, (Gen. Stat., 790, §64,) it is the duty of the jury, finding for the defendant, to find whether he had the right of property, or right of possession «nly, and also the value of the property and' of the possession. Counsel claims that this section controls the form of the verdict in the district court, and that a failure to folloAV it vitiates the verdict. When a verdict is supposed to be defective counsel ought to call the attention of the court to the defect at the time the verdict is returned, that if it be merely a defect of form the jury may correct it before they are discharged. But avc do not think that section controls. Sec. 124 of the same act, (p. 801,) treating of appeals, pro vides that “the plaintiff in the court below shall be plaintiff in the district court; and the parties shall proceed in all. respects in th cásame manner as though the action' x t t ° had been originally instituted in the said court.”1 By this we understand that the provisions of the civil code-control in all cases tried on appeal to the district court so far as they are applicable. Tarleton v. Brily, 3 Kas., 434. In the civil code there is no section prescribing in terms the form of the verdict. The form of the judgment is provided for in § 185, p. 663: “Judgment for the-defendant may be for a return of' the property or the value thereof in case a return cannot be had.” In so far as this indicates the form of the verdict necessary, it is satisfied by the verdict returned in this case.
Upon the verdict returned the judgment should have been in the alternative, “for the return of the property or the value thereoi 111 case a return cannot be had.” Hall v. Jenness & Cohen, 6 Kas., 356, The case will be -remanded to the district court with instructions thus to modify the judgment. Costs in this court will be divided, between the parties.
All the Justices concurring. | [
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'The opinion of the court was delivered by
Kingman, C. J.:
This case is like the case of the same plaintiff against Morris, as Treasurer, and Wheaton as Sheriff, of Bourbon county, 7 Kas., 210. The 'decision in that case will control the decision of this. The reasoning in that case does not appear satisfactory to the counsel for the plaintiff in -error. It is possible that a restatement of the grounds of the opinion, after having the benefit of the criticism of counsel, might obviate some of their objections thereto; but the con•clusion would remain unchanged. We are content to let t-hc -decision of this case rest upon the reasons given in that -opinion, without change. The original petition in this case was precisely like that of the Bourbon county case. The /amended petition has some new averments; but the learned counsel certainly does not think they are of a character to change the decision, or to challenge a grave review. The judgment will be affirmed.'
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by theplainRffs in error to set aside a certain deed of conveyance purporting to have been executed by the plaintiffs to the defendant in error, and purporting to convey a certain house and lot in ifiShawneetown, Johnson county, and a certain eighty-acre tract of land also situated in said Johnson county. Th’e action was tried by the court below without the intervention of a jury. The court found generally for the defendant and .against the plaintiffs. No special findings of either law or fact were made by the court. A few of the facts are admitted '•by the pleadings, but the most .of them are controverted. A few more of the facts may be said to be admitted by the evidence, as the evidence concerning them is clear, conclusive, .and all one way. But a very large proportion of the facts, probably a majority of them, is not only controverted by the pleadings, but is also controverted by the evidence—the evidence concerning them being conflicting and contradictory. "Where the facts are admitted by the pleadings, or where the .evidence concerning them is clear, and all one way, we shall •take the facts as so established, whether they are in favor of the plaintiffs or the defendant. But where the facts are ■controverted by the pleadings, and the evidence concerning them is conflicting and contradictory, we shall consider that they have been established in favor of the defendant and against the plaintiffs. Where facts are established by a general finding of a court, it must always be presume¿ that all the controverted facts are established in favor of the party for whom the court finds, and ■against the party against whom the court finds. Therefore, whenever some of the facts might be found in favor of one of the parties, and some of them might be found in favor of the other party, it would be prudent at least for any party who had doubts concerning his case to request that the court should make special findings of fact and of law. Civil Code, 3290.
The following facts we deem to be undisputed and uncontroverted, in this court, though some of them were controverted in the court below: The plaintiffs, Susan Knaggs and A- H- Knaggs, were husband and wife, during ap[ the transactions involved in this litigation, and were husband and wife when this action was commenced, and up to a short time before the rendition of the judgment in this case, when they were divorced. All the property included in said blank deed, and appearing to have been conveyed, belonged originally to Charles J. Keeler, who was the father of said Susan Knaggs. A. H. Knaggs purchased the said eighty-acre tract of land from said Keeler with his own funds, but had the deed thereto made to his wife, Susan Knaggs. Knaggs and his wife occupied said house and lot, while it belonged to Keeler, as a residence.» On April 16th 1868, while they so occupied said house and lot as a residence, Keeler executed a deed for the same to his daughter, Susan Knaggs, without any consideration whatever therefor, and had the deed recorded. His daughter never had the deed in her possession, and never even saw it. About this time A. H. Knaggs made a contract with Keeler to sell back to Keeler said eighty-acre tract of land. Within four or five days after Keeler executed said deed for said house and lot to his daughter, he made a contract with the defendant John J. Mastín to sell him said house and lot and said eighty-acre tract of land. Pending the negotiation, Mastín visited all of said property to look at it. A. H. Knaggs was at home at the time, and knew all about it. In fact, A. PI. Knaggs sold to Keeler the eighty-acre tract of land in contemplation of Keeler selling it to Mastín. 'Whether Susan Knaggs was at home or not, at that time, is disputed. On April 22d 1868, which was after the sale' from Keeler to Mastín,, and just six days after Keeler had executed said deed for the house and lot to his- daughter Susan Knaggs, both the plaintiffs, Susan Knaggs and A. H. Knaggs, signed a printed blank warranty deed, the same being in the usual form of ordinary blank warranty deeds, and duly acknowledged the same before a notary public who was present. Keeler afterwards filled up the blank so as to make it appear to convey said house and lot and said land to said John J. Mastín. This is the deed the plaintiffs now seek to have set aside. A. H. Knaggs knew when he signed said blank deed that it was to be filled up so as to make it be just what it afterwards was when Keeler had filled up the blanks. Whether Susan Knaggs had such knowledge or not, is disputed. In fact, A. PL Knaggs had full knowledge of all the transactions from the beginning to the end; but whether Susan Knaggs had such knowledge, is disputed. After Keeler filled up said blanks, as aforesaid, he delivered the deed to said Mastín at Kansas City, Missouri, apparently all regular, and properly executed. This was done on the next day after the deed was executed. Mastín did not know that said deed had been executed in blank, when he received the same; nor did he at any other time know it until about the time this suit was commenced, which was mpre than two and a half years after the deed was. executed. Mastín paid Keeler in full for the property when the deeds were delivered to him. He paid Keeler in all $9,250—$6,000 for this property, and $3,250 for other property that Keeler sold to him at the same time. He paid it by placing that amount to the credit of Keeler at the bank of J. J. Mastín & Co., Kansas City, Missouri. Keeler owed the-bank at that time $5,000, which he paid; and he also at the same time paid a mortgage on a part of the land for- $1,500. This left the bank owing him $2,750, which the bank after-wards paid. Keeler afterward paid to the Knaggses the amount in full for said eighty-acre tract of land, which was $3,200. But whether he paid it all to A. H. Knaggs, or a part to him and a part to Susan Knaggs, or whether he paid any part with her knowledge, is disputed.
The other facts, which it must be presumed the court found and established upon conflicting and contradictory evidence, are as follows: Susan Knaggs had full knowledge of all the material transactions involved in this controversy. Just prior to the time that Keeler executed said deed to her for said house and lot she agreed that if he should execute the same she would deed the property back to him whenever he should want to sell it. She was-, present when Mastín visited the property in contemplation of purchasing it, and knew of him going through the house, up and down stairs, to look at it, and made no objection. On the contrary, she often expressed herself, after the sale, that she was glad that her father had sold the property, as she wanted to leave Shawneetown. She knew when she signed the blank deed that her father had sold the property to Mastín, and knew that the blank deed was to be filled up just as it was after-wards filled up. Her father explained the whole thing to her,, and told her that he would fill it up just as he afterwards did fill it up. She intended that the deed should be a conveyance of the property to Mastín. The writing material was so poor at her house, where she signed the deed, that her father told her that he “would take it back to the office and fill it up.” After all this explanation she signed the blank deed, and duly acknowledged it before a notary public who was present for that purpose, Keeler filled up the blanks on the same day before the notary public affixed his name and seal, and on the next day delivered the deed to Mastín at Kansas City, as aforesaid. Keeler afterwards paid Knaggs and his wife for said eighty acres of land. The payments were made at different times, a portion to .Mr. Knaggs and a portion to Mrs. Knaggs, and each knew at the time he or she received it for what it was received. At least $1,000 of the same, and probably more, was paid by Keeler drawing his check in favor of Mrs. Knaggs on said Mastin, and giving it to her. A portion of the money was paid to A. PI. Knaggs, and he and his wife bought other land with it, and took the deed in his wife’s name. After the sale of the property to Mastin, both of the plaintiffs were notified that they would have to pay rent for the house to Mastin, and neither made any objection thereto, but both seemed to consider it all right. Keeler, by previous arrangement, paid the rent on said house and lot for two years, by paying -the taxes on Mastin’s lands in Johnson county; Kansas. For one year Keeler gave the rent to Knaggs and his wife, his son-in-law and daughter. For the other year Knaggs paid Keeler in the settlement of their accounts. Mastin took possession of. the eighty-acre tract of land as soon as he purchased it, and has made valuable improvements thereon, and is still in the possession thereof. Knaggs often spoke to Mastin about the property. Once he requested Mastin to give him permission to sell it as a land agent. Mastin gave him such permission, and gave him the price of each piece of the property separately.
. We have probably been unnecessarily prolix in the statement of the facts of this case. We have been so because counsel for. plaintiffs have filed an elaborate brief, discussing points which we do not deem to be in the case as it is presented to this court, although they may have been in the case as it was presented to the court below. Said counsel have discussed the case as though all the evidence for the plaintiffs were true, and all the evidence for the defendant were false.The reverse would be more proper. Under the findings .of' the court below we should consider all the evidence of the' defendant as true, and all the evidence of the plaintiffs which conflict therewith as untrue. With this explanation we shall now proceed to discuss the questions of law involved in the case.
I. It must be conceded that the entire title to both the house and lot, and the eighty acres of land, was vested in Susan Knaggs after the deeds for the same were executed by her father to her. No express trust Avas created in favor of Keeler. for the house and lot, nor in favor of A. II. Knaggs for the land; for that kind of trust can be created, under our statutes, only in Avriting. (Comp. LaAvs, § 7, ch. 41, p. 354; § 4, ch. 102, p. 569; § 1, ch. 209, p. 897. The corresponding proAdsions of thoGen. Stat. of 1868 are §8, ch. 22, p. 186; §8, ch. 43, p. 505; §1, ch. 114, p. 1096.) And no resulting trust was created in favor of either Keeler or Knaggs by operation of law. The property Avas hers, and she had a right to hold it and enjoy it as long as .she chose, and there Avas no poAver to take it from her.
II. But, on the other hand, it must be conceded that in this state a married Avoman may contract and be contracted Avith, concerning her separate real or personal property, sell, convey, and encumber 'the same, and sue and be sued with reference thereto, in the same manner, to the same extent, with like effect, and as freely as any other person may in regard to his or her real or personal property.. (Comp. Laws, §9, ch. 41, p. 354; §§ 2, 3,. ch. 141, p. 697; § 1, ch. 142, p. 699; Gen. Stat., §§ 3, 7, ch. 22, p. 185; §§ 2, 3, ch. 62, p. 563; §29, ch. 80, p. 636; Deering v. Boyle, 8 Kas., 525; Wicks v. Mitchell, ante, 80.) This disposes of a large number of decisions cited by counsel for plaintiffs; for such decisions Avere made in states Avhere a married woman does not possess such SAveeping and extended powers as she does in this state. In fact, in some of those states her legal existence is almost entirely ignored. She is sunk into almost absolute legal nonentity. She rests under almost total disability. She could not make a simple contract for. .any purpose; and-of course she could not create an agent, that could make such a contract for her. And Avhere she has no power to make a contract, she of course has no poAver to ratify a supposed one already made. Where she cannot bind herself by contract, mere acquiescence in a supposed contract cannot work a ratification nor create an estoppel. And certainly, where she cannot sue or be sued, or assert any legal right except by her husband or next friend, no estoppel can run against her for not asserting her legal rights.
III. Whether this blank deed when filled up, and before any subsequent ratification, was good as a conveyance, is a question which we think is not necessary to be decided now. The writer of this opinion however is of the opinion that a deed executed in the manner in which this ¿ecd was executed, should never, under our statutes, (Comp. Laws, § 4, ch. 102, p. 569; Gen. Stat., § 5, ch. 43, p. 505,) be considered good as a conveyance of title to real estate except in certain cases where it may be considered good by way of equitable estoppel. (As to estoppel, see authorities cited in defendant’s brief.) Nor should such a deed be considered good for any other puqiose, except possibly as a simple contract in certain cases upon which specific performance might be enforced. Now, if it be conceded that the mere execution of this deed did not make it good as a conveyance, then the only question necessary to be considered in this case is, whether the other facts, aside from the mere execution of said deed, but taken in connection therewith, are sufficient to make this deed good by way of equitable estoppel. We think they are. We supjiose that the claim that A. Ii. Knaggs has a right to have this deed set aside is abandoned, and that the only question now seriously urged is, whether Susan Knaggs, his former wife, has any such right. We think that neither has any such right. We have already seen that Susan Knaggs’ lights are to be determined by the same laws which govern and prescribe the rights of other persons under similar circumstances. Then what are those rights? This is a proceeding in equity to relieve the plaintiffs from the consequences of their own acts. It is a proceeding in equity to set aside a deed which they authorized (though irregularly) to be made. They ask a court of equity to enable them on account of a mere irregularity to commit a fraud upon their grantee. Shall it be •clone? Wo know of no principle of equity that will aid them in such a case. The plaintiffs suffer no hardship. There is nothing inequitable in a daughter conveying to a third person a piece of property for the benefit of her father, without consideration to herself but with consideration to her father, which (property) she received from her father only six clays before she so conveys, without paying any consideration therefor to her father, and with the promise on her part that she would reconvey the same whenever her father should desire to sell it. And there is nothing inequitable in a wife conveying property for the benefit of her husband and herself jointly which she received from her husband without any consideration whatever. But there is something very inequitable in a woman, by her own voluntary act, enabling her father, her husband, and herself, to obtain a large sum ■of money from another person on the strength of such act, .and then in attempting to repudiate the act. Mastin, innocently, and ignorant of all the irregularities complained of, (and in this respect, as well as in several others wc might mention, this case differs widely from the case of Burns v. Lynch, 6 Allen, 305, strongly relied on by plaintiff in error,) paid $6,000 for said property, a full consideration therefor, on the strength of the voluntary act of Mrs. Knaggs and her husband.' And will she now deprive him of both the money and the property ? Mastin probably paid about $2,800 for the house and lot on said voluntary act, and will she now deprive him of both the money and the house and lot ? Can she now, after waiting more than two and one-half years since the deed was executed, all the time acknowledging and acting as though she considered that the deed was valid, be heard to say in a court of equity that the deed is invalid, ■because it was simply executed irregularly, when in fact it was executed just as she consented and prescribed that it .should be executed ? Every principle of equity and morality is against such a thing. But the irregularity is not so great as at first view it might seem to be. A deed is good between the original parties without being acknowledged at all. It may be executed by making the signature first and then filling up the blanks. No law requires that the signature should be the last thing placed to a deed. It is not necessary that the grantor should fill the blanks himself, but any person may fill them with his consent or approval. The consent and approval has been given-in this case, and to this deed, time after time, for a period of more than two and-a-half years.. The only irregularity is, that the consent and approval were not given after the blanks were filled up, and before the deed was delivered. The consent was given before the deed was filled up, and the approval was given after its delivery. If there had been a second delivery of the deed, with the approval of the plaintiffs, after the blanks were filled up, it would seem that there could scarcely be any question raised with regard to the validity of the deed, either in law or equity; and the repeated recognitions of the validity of the deed after its delivery, with a full knowledge of its contents, would seem to be almost equivalent to a second delivery of the deed. The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This proceeding was brought to set aside a garnishment order.
J. M. Jewell instituted an action for the recovery of money from H. C. Schell, and caused a summons of garnishment to be served on Frank Ellis, who appeared and answered that he was indebted to Schell in the sum of $558. Upon this answer the court ordered the garnishee to pay into court out of the money in his hands belonging to Schell a sum sufficient to pay plaintiff’s judgment against defendant, being $539. Shortly after-wards the garnishee appeared and asked to have the order set aside upon the ground that he had since ascertained that his answer was not true. He alleged that it had been made upon the theory that Schell had transferred a meat market to him for a consideration of $650, on which a cash payment of $100 was made; that he had learned since his answer was given that the meat market was covered by a chattel mortgage; that Schell had no right to sell or deliver the property to him; and that he was not in fact indebted to Schell in any sum. There was a further allegation that the plaintiff himself had sold the meat market to the defendant and procured the latter to mortgage the property, giving the proceeds to plaintiff in part pay ment of the property sold, and that plaintiff not only knew of the mortgage, but also1 well knew that by reason of the mortgage the garnishee was not in fact indebted to the defendant in any sum, and with this knowledge plaintiff allowed and led the garnishee to believe that there were no claims against the property. The garnishee states that he was unacquainted with garnishment proceedings and, on the advice of the clerk of the district court, he made the original answer as to his indebtedness; that he acted in good faith when he gave the mistaken answer, believing that a complete transfer of the property had been made to him; and that when he learned of the mistake and the facts as to the fraud of the plaintiff, he promptly moved to set the order aside. The plaintiff demurred to the petition of the garnishee asking for the vacation of the order and, it being overruled, the plaintiff appeals.
It is contended that the grounds stated in the petition did not warrant the court in vacating the order. The averments show clearly enough that the garnishee was mistaken in his original answer. He naturally supposed that the defendant had the right to transfer the meat market to him, and that, having only paid $100 on the property, he was indebted to defendant for the balance. • The plaintiff understood that the property had been mortgaged, as he had procured the mortgage to be made and had applied 'the proceeds of it upon a claim he had against the defendant. He allowed the garnishee to think that he was acquiring the ownership of the property and that he was indebted to the defendant, when he knew of the mortgage and that there was in fact no debt. No equities arose in favor of the plaintiff by reason of the answer and order. Upon learning the facts the garnishee moved promptly,- and no one was prejudiced by the erroneous answer or the order based on it. In vacating the order and allowing a correct answer, the court did no more than to allow the truth to be told. If the order is treated as a judgment,, it was properly opened up and vacated. There was not only the mistake of the garnishee, but there was the misrepresentation and fraud of the plaintiff as pleaded, and these warranted the ruling that was made. On the merits of the controversy the plaintiff had no greater rights against the garnishee than the defendant had. He was not entitled to any more than the garnishee owed to the defendant when process was served upon him. (Johnson v. Brant, 38 Kan. 754, 17 Pac. 794; Lumber Co. v. Trust Co., 54 Kan. 124, 37 Pac. 983; Rich v. Roberts, 103 Kan. 116, 172 Pac. 996.) Under the averments the defendant had no right to claim anything from the garnishee and neither had the plaintiff.
Judgment affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for partition of land among the widow and heirs of the deceased former owner. The daughter of the deceased by a first wife claimed sole ownership under a tax deed. This daughter, who resided in Pueblo, Colo., and who will be referred to as the defendant, was awarded a co-tenant’s share, with a lien for taxes, and appeals.
The land belonged originally to William Watson, a nonresident of the state, who died intestate in 1895. The land was sold to the county in 1893 for the delinquent taxes of 1892. In May, 1898, the tax-sale certificate was assigned to D. M. Campbell, of Pueblo, Colo., who on May 31, 1898, took out and recorded a tax deed. On June 6, 1898, Campbell quitclaimed to the defendant, who withheld her deed from record until August, 1912. At the time of William Watson’s death the land was unoccupied, and it continued to be unoccupied until the year 1911, when his widow leased to a tenant who farmed a portion and cut hay from the remainder for a period of three years. The action was commenced in February, 1914.
The court found that the dealings between Campbell and the defendant were collusive, but the finding is not important. William Watson died with his obligation to pay taxes on the land unfulfilled. The land descended to his heirs, who became owners in fee simple charged with the same obligation which rested on their ancestor. No one of the heirs could have taken an assignment of the tax-sale certificate and a tax deed, and thereby cut oif the title of his cotenants, and no one of them could reach by indirection an end he could not reach directly.
The defendant says that Rooks county had taken title to the land by purchase before her father’s death, and had fully settled all obligations of William Watson to contribute to the public revenues. The statement is incorrect. Because the land could not, in fact, be sold to some one who would advance the taxes, it was bid off, according to the formalities of the tax law, in the name of the county. The taxes, however, were not paid. The deficiency in the public revenues was not made up. The obligation to contribute to those revenues was not discharged. The tax-sale certificate was written up and assigned, and the tax deed was issued to Campbell because of the neg lected duty of the defendant and her cotenants, and when the defendant purchased the tax title she merely redeemed the land from tax sale.
If Campbell had taken and held title under such circumstances that redemption from him became foreclosed, and the title of all former owners became completely extinguished, a different question would be presented. He held title just six days.
The defendant claims the benefit of constructive possession conferred by a tax deed, and of the statute o'f limitations shielding tax deeds from attack. The purchase of the tax title, with all the rights attending it, inured to the benefit of the defendant’s cotenants. As against them, the tax deed in her hands amounted to no more than a redemption receipt.
There is nothing new in the case. It is' the old story of one tenant in common trying to use the tax-title method to defeat the estate of cotenants, and the judgment of the district court is affirmed. | [
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Per Curiam:
The defendants appeal from a decision ’overruling their demurrer to plaintiff’s petition in an action to recover taxes paid under protest. Rural High-school District No. 1 in Rush county ,was organized under chapter 311 of the Laws of 1915, which took effect March 16,1915. The organiza tion was not completed until after‘the third Monday in April, the time fixed by statute for the annual meeting of the district to make the necessary levy for taxes, and the levy was not máde until July 2. The court overruled the demurrer on the theory that the statutory requirements as to the time when the levy is to be made are mandatory, and that a failure to act within the prescribed time renders the tax void. The same question was presented last month in the case of Rural High-school District v. Raub, ante, p. 757, where the school district was not organized until August, and the tax levy was made in September. It was held that the provisions of the statute fixing the time at which the tax shall be levied are not mandatory, but merely directory; that the failure to act within the prescribed time will not vitiate the levy; and that it became the duty of the county clerk to extend the levy upon the tax rolls before the books were turned over to the county treasurer. The only difference in the facts is, that in the present case, after the act of 1915 took effect, there was not sufficient time in which to organize a rural high-school district before the third Monday in April, while in the Eaub case, there was a statute authorizing the formation of school districts, but the district was not, in fact, organized until August. In both cases there was no rural high-school district in existence on the third Monday in April.
Upon the authority of the Eaub case, the judgment is reversed and the cause remanded with directions to sustain the demurrer. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to enjoin proceedings instituted to determine special assessments for street improvements. A demurrer was sustained to the petition, and the plaintiffs appeal.
The city is a city of the second class, and the proceedings were initiated by its mayor and council. The various lots affected do not touch the street to be improved. They all lie, however, within the assessment district extending to the center of blocks'on each side of the street, contemplated by section 1705 of the General Statutes of 1915 (Laws 1911, ch. 102, § 1). The contention is that the provision establishing the assessment district extending to the center of the block was repealed by implication by section 1 of chapter 112 of the Laws of 1913, which appears as section 1764 of the General Statutes of 1915.
In their original form, the acts of 1911 and 1913 were respectively section 32 and section 75 of chapter 100 of the Laws of 1872, which was a complete act for the organization and government of cities of the second class. Broadly speaking, section 32 granted power to levy taxes and special assessments, and power to make municipal improvements, including street improvements, and located the burdens of taxation for various municipal purposes. For general revenue purposes the burden was placed on all' taxable property within the city; for grading streets and some other purposes, on all taxable property within the city; for building and repairing sidewalks, on abutting lots and pieces of ground, according to the front foot; for paving, macadamizing, curbing, and guttering streets or avenues, assessments were to be made “for each block separately on all lots and pieces of ground to the center of the block on either side of such street or avenue, the distance improved or to be improved.” Assessments were to be made according to appraised value, to be determined by procedure specified at length. Section 32 has been amended several times, but in its present form, as section 1705 of the General Statutes of 1915, its general function remains the same, except that the subject of financing the improve ment of street intersections by means of bond issues has been added.
Section 75 related to the method of instituting proceedings for street improvements, and read as follows:
“When the city council shall deem it necessar-y to open, widen, extend, grade, pave, macadamize, bridge, curb, gutter, or otherwise improve any street, sidewalk, alley, avenue or lane -within the limits of the city for which a special tax is to be levied as herein provided, such council shall by resolution declare such work or improvement necessary to be done, and such resolution shall be published for four consecutive weeks in the official newspaper of the city; and if a majority of the resident owners of the property liable to taxation therefor, shall not within twenty days thereafter file -with the clerk of such city their protest against such improvement, then such council shall have power to cause such improvement to be made, and to contract therefor, and to levy and collect the taxes as herein provided.” (Laws 1872, ch. 100.)
The phrase “as herein provided,” twice used in this section, referred, not to section 75, but to the act itself, and particularly to section 32 of the act.
Section 75 has been amended several times. A provision was adde'd whereby property owners may institute proceedings for street improvements, and methods of financing street improvements were tacked to the section, so that section 1764 of the General Statutes of 1915 now embraces two methods of initiating proceedings for street improvements, and various ways of financing street improvements.
In dealing with the subject of initiating proceedings by resolution of the mayor and commissioners or mayor and council, the act of 1913 employed substantially the concluding phraseology of old section 75, authorizing the council to cause the improvement to be made, to contract therefor, and to levy and collect taxes “as herein provided.” In dealing with the subject of initiating proceedings by petition of property owners, the following phraseology was employed:
“The council shall cause such work to be done, or such improvement to be made, and shall contract therefor, and shall levy taxes for all such improvements, as herein provided, upon the abutting property.”
In dealing with the subject of financing street improvements reference was made to assessments on “abutting lots,” and “property chargeable” for the cost of improvements. The contention is that the provisions of section 1764 (act of 1913) relating to assessments “as herein provided” and “as herein pro vided upon the abutting property” repeal the portion of section 1705 (act of 1911) extending the assessment area .to the center of the block.
The plaintiffs say that the act of 1913 is the later act. This is not true with respect to the subject of the extent of the assessment district, which, if embraced in section 1764 at all, came into it long before the year 1913, the 1913 amendment relating entirely to other matters. The following quotation from the brief for the city is quite pertinent:
“Now, let us ascertain just how and in what manner the legislature manifested its intention that section 1764 should prevail over section 1705. In 1872, 1873 and 1881 they said the assessment should he to the center of the block. In 1885 and 1887 they said it should be on the abutting property. By appellants’ logic, section 1705 was then pro tanto repealed. In 1903 and 1905 the legislature again said that the assessment should be to the center of the block. By the same logic, section 1764 was then pro tanto repealed. In 1911, by two acts approved the same day, they prescribed that the assessment should be to the center of the block and also upon the abutting property; and in 1913, by one act that was duly passed and another that was somewhat crippled in the legislative melee, they said the assessment should be on the abutting property and also to the center of 'the block. It would thus appear, according to appellants’ logic, that for the past thirty-three years one of the pastimes of the legislature has been the alternate repealing and reviving of the “abutting-property” and “center-of-the-block” provisions. Is n’t it rather strange, if the legislature has been repeatedly and alternately making ug its mind to repeal both these provisions, that it has never come out squarely and said so?”
The conclusion to be derived from this legislative history is that the legislature itself has never regarded the two sections as conflicting. Repeals by implication are not favored. It is the duty of the court to give effect to both sections, if possible, as the legislature plainly intended, and this may be done by-keeping in mind the distinct purposes to be accomplished by each. Section 1705 now, as always heretofore, specifically defines the territory on which special assessments shall be laid. Section 1764 provides methods of instituting and financing street improvements. The expressions indicating property, used in section 1764, are merely brief and convenient designations, and not delimitations, of taxable area, and refer to the “abutting” assessment districts created by section 1705.
The expression “as herein provided,” used in section 1764, does not stand in the way of the interpretation suggested. When first used in the provision for proceeding by resolution it is purely a survival, brought forward from old section 75, where it referred specifically to the center-of-the-block district. The expression was probably used by the draughtsman of the provision for proceeding by petition because it was used in the provision for proceeding by resolution. If not, it may well refer to the financial scheme of the section, levying the entire assessment all at once, or in installments, etc.
The proposed reconciliatory interpretation is fortified by some further indicia of legislative intent, a provision in section 1764 which would otherwise be meaningless, and some cognate legislation. Besides this, many, if not most, cities in this state áre platted according to the lot and block system, and it seems quite absurd to charge the legislature with casting the entire cost of paving streets at the ends of blocks on none but the lots adjoining, and usually extending parallel with, such streets. If such were the case, property assessment to pay for the improvement could be defeated by conveyances of very small portions of the lots next to the street.
The plaintiffs interpose as an obstacle to the proposed interpretation the provision of section 1764, authorizing “property owners fronting on a street” to institute proceedings by petition. The subject of who may set in motion improvement proceedings has nothing to do with where the burden of special assessments shall finally rest. No constitutional right of the property owner is involved. He is not entitled to be heard on the subject of the public need, unless the legislature give him the right. He is only entitled to be heard with respect to the resulting charge on his property. No doubt the' provision may be difficult of application. A “property owner” ordinarily fronts in the opposite direction from his back. A lot may front one way, and a business house or residence on the lot may front another way. The meaning is, of course, obvious when applied to the owners of lots lying side by side, facing a street subject to improvement, and extending backward from the street half way toward the other side of the block. In this instance the proceeding was instituted by resolution, and not by petition, and the question is: Where does the burden rest? Complications may be left for solution until the question is: Who may institute improvement proceedings by petition?
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The opinion of the court was delivered by
Porter, J.:
In this original proceeding William Sinclair’s right to hold the office, of superintendent of schools in the city of Coffeyville is involved, and in determining that question it becomes necessary to inquire into the right of Thomas F. Scott to the same office.
Mr. Scott was the superintendent of schools for the year 1917-1918, having been duly elected for a period of one year. On February 14,1918, at a special meeting of the board of education, a motion was adopted that he be reelected for the coming year and his salary fixed at $2,600. He was present and accepted the reappointment. The rules and regulations adopted by the board fixed the regular meeting in March as the time for the election of a superintendent, and at the regular meeting on March 4 Mr. Scott, was formally elected to the office for the year beginning August 1, the roll being called and the members voting, five for, and one against, his election.
At a called meeting of the board June 12, a resolution was presented asking him to resign, on the ground that he was out of harmony with the majority of the members of the board, was arbitrary in his dealings and relations with it, and that his influence was regarded by the board as injurious to the school system. Mr. Scott asked if the statements in the résolution constituted a charge against him; the president of the board replied : “If adopted it is.” Mr. Scott asked by whom the charge was made, and the president said: “It will be the action of the board one way or the other.” The resolution was put to vote by acclamation, and there were five votes for, and none against, its adoption. Mr. Scott then made the statement: “I am here to serve under my contract and expect to stay by it”; the president of the board replied: “You are out as far as we are concerned until you put yourself in again.” The meeting then adj ourned.
At the regular meeting July 1, the matter came up for discussion, and a resolution was presented to depose Mr. Scott from the office. The minutes of this meeting do not recite how the resolution was worded, but it is said that one of the grounds urged for removing him from the office was that his election had not been by ballot as the rules of the board required. In the . discussion two of the'members stated they believed there should be a change, but they considered the election in February as made in good faith and did not feel inclined to base their objection on a technicality. The roll was called, and three members voted for, and three against, and the motion was declared lost. The meeting then adjourned.
On July 16 there was a called meeting of the board. The rules and by-laws required 24 hours’ notice of called meetings, but all the members were present and waived any defect of notice. The chairman stated that the purpose of the meeting was to consider and take action upon the matter of superintendent. A motion was made and seconded that Thomas F.Scott be deposed, effective July 31, and that the office be declared vacant. Mr. Scott was present and stated he had certain legal rights, and asked the grounds upon which he was to be removed, calling attention to the law which provides certain grounds of removal — immorality, incompetency and neglect of duty — and notified them that he stood ready to answer any of these charges. The presiding officer said: “The board had no statement to make but that they had made up their minds.” One of the members demanded that the charges be made specific and in writing, but the president ruled him out of order. The call of the roll showed five votes for, and one against, the motion. At a called meeting July 31, the board elected Mr. Sinclair superintendent for one year, one member declining to vote on the ground that the schools already had a superintendent who had not been properly discharged and against whom no charge of immorality, incompetency, negligence or neglect of duty had been preferred.
If Mr. Scott was duly elected to the office for the current year and has not been legally deposed, it necessarily follows that the election of the defendant was without authority and void.
The defendant raises these contentions: First, Mr. Scott was not duly elected at the meeting on the 14th of February, because that was a special meeting; second, that he was not chosen by ballot; and, third, that the rules and regulations of the board, which it is said constitute a part of the contract entered into with Mr. Scott, expressly provide that the term of office of the superintendent shall continue during the pleasure of the board. These defenses are based upon section 9 of the rules and by-laws, which reads:
“At the regular meeting in March of each year the board of education shall elect, by ballot, a superintendent of schools whose term of office shall continue during its pleasure.”
Conceding, for the purposes of the argument, that the election of Mr. Scott at the February meeting was void because not made at the time provided for by the rules of the board, he was elected again at the regular meeting held on March 4. As to the second proposition, it is true that the word “ballot” in its primary and technical sense means a ball or ticket with-some designation to show the choice of the person casting a vote. (SeeT Words and Phrases 680.) Numerous authorities might be cited in which it has been held that a constitutional provision that certain elections shall be held by ballot has been construed in its technical sense to mean by the casting of a paper ballot prepared by printing or writing thereon to show the voter’s choice; and it is also true that in the primary sense in which the word was used it meant a secret method of voting at an election. It would be carrying technicalities to the extreme, however, to hold that a board of education might not by common consent waive its rule requiring an election of a superintendent to be held by ballot, and signify its choice by a call of the members and the recording of their votes. It would hardly do to declare the election or choice of a superintendent of public schools void because the members qf the board of education announced their choice as their names were called, the vote being recorded by the clerk; and this was the method followed when Mr. Scott was employed as superintendent, both at the special meeting in February and the regular meeting in March. To hold otherwise might raise a question as to the validity of the title by which many superintendents' of public schools hold their office.
The word “ballot” has been given by some courts a broader meaning to signify that by which the right of suffrage is exercised, and in Bourland v. Hildreth, 26 Cal. 161, 194, it was held that a ballot means “The expression of choice by or through a ballot, or by outcry, or any other particular means by which the choice of the voter may be lawfully known or communicated.” When United States senators were elected by the joint houses of the legislature, the act of voting was referred to in common parlance as taking a ballot for senator, although the statute provided that the vote should be by a roll call, doubtless for the reason the legislature deemed it wise that the choice of each member voting should be made a matter of record.
Nor would it do, we think, to say that the election of a superintendent at a meeting of the board called for that purpose should be held invalid merely because the board had previously adopted a rule fixing a regular and later meeting as the time for selecting a superintendent. Circumstances might arise‘which would require the election of a desirable person as superintendent before the regular meeting, in order to secure his acceptance. The statute (Gen. Stat. 1915, § 9074) merely provides “that the board oif education in cities of the first and second class, at such time as they may deem expedient shall elect a superintendent of schools, . . . for a term of one or two years, as the board may choose, and whose term shall begin on the first Monday in August.”
The main contention, however, is that the provision in section 9 of the by-laws and regulations adopted by the school board of Coffeyville, which declares that the term'of office of the superintendent “shall continue during its (the board’s) pleasure,” became a part of the contract by which Mr. Scott was employed or chosen as superintendent, and that the board has the authority and right to discharge him at its pleasure. This contention is not sound. The powers of the board of education are defined by the statute, and among these is the power to “make all necessary rules ... of the board, subject to the provisions of this act and the laws of this state.” (Gen. Stat. 1915, § 9108.) Again the board is given “power to adopt rules and regulations for the carrying out of the purposes of this act not in conflict therewith.” (Gen. Stat. 1915, § 9124.) We have already referred to section 9074 of the General Statutes of 1915, which declares that the superintendent shall be elected “for a term of one or two years, as the board may choose, and whose term shall begin on the first Monday in August.” Prior to 1911 the act provided that the superintendent “shall hold his office during the pleasure of the board.” (Gen. Stat. 1909, § 7607.) In 1911 the act relating to boards of education in cities of the first and second class was amended, and the tenure of office of the superintendent of schools was fixed at “ a term of one or two years, as the board may choose, and whose 'term shall begin on the first Monday in August.” (Laws 1911, ch. 269, § 4.) • It will not be necessary to cite authorities to show that the rules and regulations adopted by the board of education must harmonize with the statutes. Manifestly, as was said in the argument, the change in the law was procured through the influence of the teachers’ profession in Kansas, and because of the uncertainty which formerly existed in the tenure of office held by a superintendent of public schools. The rules, by-laws and regulations for the government of the board of education of Coffeyville were amended in 1913, and apparently the provision that the term of office of the superintendent “shall continue during the pleasure of the board” was inadvertently readopted from the rules in force before the statute was amended. However that may be, it must be held that the employment and election of Mr. Scott was for a term of one year.
The remaining question is whether the act of the board in attempting to depose him was authorized and valid. While the superintendent of public instruction holds a public office within the meaning of the words “public office” as used in the statute of quo warrcmto (Gen. Stat. 1915, § 7596), he is, in a sense, an employee of the board. He is employed by a contract fixing his compensation or salary, although his employment must be by an election of the board. The board of education in cities of the first and second class is given authority at any special meeting to “remove any of its employees for incompetence, negligence, or immorality, after notice and a fair hearing of the person so charged.” (Gen. Stat. 1915, § 9072.) There is no express provision for removing a superintendent of public schools. While the superintendent is a public officer, the statute, we think, should be construed to hold him an employee within the meaning of section 9072, and removable by the board for incompetency, negligence, or immorality, after notice and a fair hearing. In the present case the board attempted to remove Mr. Scott on the general ground that he was not in harmony with the board, and for that reason was not, in their opinion, a suitable person to have the management and control of the schools. The charge is too general in its nature. If true, it would not necessarily follow that the superintendent is incompetent. Through no fault of its own, a clock which keeps the time correctly is not in harmony with one which fails in this important quality. In any event, before the board could lawfully remove the superintendent, specific charges in writing should have been presented against him, as the statute contemplates, and upon these charges he should have been given a fair hearing, with an opportunity to present any defense he might have. It is conclusively,shown by the record that the board attempted to remove him from office upon a general charge, which, if held sufficient, would authorize a board of education to remove the superintendent at any time it became dissatisfied with its choice, or desired to get rid of him and employ some one else. Because it is so manifest that the board was proceeding upon a mistaken notion, that by reason of the provision in its bylaws it had authority to remove the superintendent at its pleasure, it seems unnecessary to attempt to construe the general charge as including the charge of incompetency. If, notwithstanding the general nature of the charge, there had been a fair hearing and a finding of facts upon sufficient evidence showing the existence of some of the statutory grounds for removal, the defendant might be heard to say that the defect in the indictment became immaterial; but we have no such case before us. The superintendent repeatedly, not only demanded that the charges be made specific and be made to comply with the statute, but that he be given a hearing and an opportunity to defend. These statutory rights were denied him on the theory that the board possessed authority to remove him at pleasure.
Because there was no vacancy in the office of superintendent at the time the board attempted to elect William Sinclair, he has no right to hold the office, and judgment will go for the plaintiff. | [
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The opinion of the court was delivered by
Porter, J.:
In an action to Recover damages for frajid practiced upon him by tl).e defendants, the plaintiff prevailed, and the defendants appeal. The petition upon which the case was tried alleged these facts: Plaintiff for a number of years had been a customer of the German-American State Bank; for twenty years he and its president, Mueller, had been close personal friends, and plaintiff had confidence in Mueller’s business judgment and honesty. Plaintiff, having heard of an opportunity to make an investment in a certain business, went to the bank and inquired about ft of Mueller, who advised him not to have anything to do With it, but told him that he knew of a business in which plaintiff could purchase an interest, and which he could recommend as a money-maker, a business carried on under the name of the Topeka Fruit, and Produce Company, with an office near where the bank was located. He represented that the business was owned by George Christopher, and said that if he were not “tied up” he would go into it himself. He took Abmeyer to the office of the Produce Company. When they arrived Christopher was not there, but Mueller went into the private office and took from the drawers a book purporting to show the accounts and conditions, and certain envelopes in which .were papers showing particular transactions of the business. These he explained to Abmeyer, stating he had originally prepared the system of bookkeeping for Christopher. Christopher came into the office about that time, and they all talked about the business and about the plaintiff purchasing an interest. Mueller took a prominent part in the conversation, and arrangements were made for Christopher to prepare a statement. A few days later Mueller brought Christopher to Abmeyer’s farm, and he was handed a written statement of the business, showing commission accounts due amounting to $4,700. Mueller stated that there was no loss in the commission accounts, that they were payable every Monday. The statement showed assets of $5,200 in excess of liabilities. Mueller represented that he had no interest in the sale, and that what he did was because of his friendship for Abmeyer. He offered to make a loan for the bank on plaintiff’s farm and personal property to enable him to purchase an interest in the business. Plaintiff, relying upon and believing the written statement brought to him, and the statements and recommendations of Mueller, paid Christopher ,$3,000 for a half i interest, Mueller was' at that time a silent partner in the business carried on by Christopher, and the firm was indebted to the bank on notes amounting to $2,850, some of which were past due and the others rapidly maturing. The money plaintiff paid to Christopher was applied in taking up these notes.
Abmeyer and Christopher conducted the business for several months, Abmeyer at first devoting his attention to the outside business; but gradually it dawned upon him that the business was insolvent, and that it had been in that condition when he purchased. Upon complaining to Christopher, he discovered for the first time that Mueller had been interested in the business as a partner. Plaintiff then sold his interest to Christopher for $1,000, and brought this action asking $4,000 damages against Mueller and the bank. The bank filed an answer, verified by Mueller, as president, denying that the bank was interested in any manner in the transaction. Mueller also filed an answer for himself, denying that he had ever been a partner or had any interest' in the business, or that he had received any benefit from the sale to the plaintiff.
The jury made special findings and returned a verdict in plaintiff’s favor against Mueller for $150, and against the bank for $2,850. The court sent the jury back with additional instructions directing their attention to the instructions which limited the amount of the verdict against the bank to the sum actually received by it as the direct result of any alleged fraud, and to the instructions which charged that in case the jury found in plaintiff’s favor, he would be entitled to recover against both defendants for the same amount, up to the sum actually received by the bank as a direct result of the fraud, and that if the facts and law warranted, the jury might return a verdict against Mueller for a greater amount than that found against the bank, but not for less. Shortly thereafter the jury returned a verdict for plaintiff against both defendants, assessing the damages against .Mueller at $3,000 and against the bank at $2,850. It is insisted there are two verdicts, but there is only one real verdict; the court very properly refused to accept the first one returned, and it did not become a verdict until it was accepted. The court refused to accept it because it was manifestly contrary to the law and facts of the case, as well as contrary to the court’s instructions. It showed that the jury believed from the evidence that plaintiff was entitled to recover from both defendants. Under the law of the case, about which there could have been no dispute, if both defendants were liable, Mueller’s liability was necessarily as great as that of the bank; it might exceed that of the bank, but could not be less. It is always one of the court’s functions to see that a trial is conducted properly, and that verdicts are returned in accordance with its instructions. The court is not bound to receive a verdict based upon an obvious misapprehension of the instructions.
The special findings leave no room for doubt upon the question. The findings are: ,
“Q. 1. Did the defendant, Theodore C. Mueller, know the first written statement handed to the plaintiff by George Christopher was false at the time it was handed to him, or before the contract was entered into? A. Yes.
“Q. 2. Did the defendant, Theodore C. Mueller, know anything about the contents of the second written statement at any time before the sale of the one-half interest was made to George Christopher? A. No evidence to show he did.
“Q. 3. Did the plaintiff rely solély upon the statements furnished.him by George Christopher on September 12, 1915, with reference to the assets and liabilities of the Topeka Fruit & Produce Company, in making the purchase of a one-half interest in the business. A. No.
“Q. 4. Did the defendant, Theodore C. Mueller, knowingly make any false representations to the plaintiff with reference to the assets and business of the Topeka Fruit & Produce Company? A. Yes.
“Q. 5. If you' answer question No. 4 ‘Yes,’ please state fully the false representation so made by Theodore C. Mueller. A. He stated commission [er] accounts were good and collectible every Monday morning, referring to accounts receivable so far as plaintiff could possibly understand after asking him what accounts receivable meant or represented. Further that it was a good going business and that he would go into it himself if not otherwise tied up.
“Q. 6. At the time the sale was made to the plaintiff, was the defendant, Theodore C. Mueller, an owner of a one-half interest in the Topeka Fruit & Produce Company? A. Yes, so far as evidence discloses.
“Q. 7. Did the defendant, Theodore C. Mueller, know that any statement he made with reference to the business of the Topeka Fruit & Produce Company was false when made? A. Yes.
“Q. 8. Had the defendant, Theodore C. Mueller, any reason to believe that any of his statements were false when he made them? A. Yes.
“Q. 9. Did the defendant, Theodore C. Mueller, know anything about the books and accounts of the Topeka Fruit & Produce Company at any time during the last six months prior to the sale of the one-half interest by George Christopher to the plaintiff? A. Yes.
“Q. 10. Did any of the officers of the defendant, Bank, know that the written .or oral statements made to Abmeyer at and before his purchase of the one-half interest in the Topeka Fruit & Produce Company were untrue, if you find any statements were untrue. If so, give their names. A. Yes. Theo. C. Mueller, president.
“Q. 11. Was the defendant, Theodore C. Mueller, acting for the bank in what he did in connection with the sale of the one-half interest by • George Christopher to the plaintiff? A. Yes, and for himself individually.
“Q. 12. Did the defendant, Theodore C. Mueller, act in good faith in what he did about the purchase of the one-half interest in the Topeka Fruit & Produce Company by Abmeyer? A. No.
“Q. 13. What was the reasonable value of the half interest in the produce business purchased by the plaintiff, at the time of the purchase? A. It had no value.”
In passing upon defendants’ motion for a new trial, the court held that the verdict as against the defendants for any sum in excess of $2,500 was not warranted by the evidence, and required plaintiff to consent to a reduction to that amount; otherwise a new trial would be ordered. It is insisted that this was error, because there is no consistent theory disclosed by the evidence upon which the court could base the reduction of the verdict to $2,500. While it is not very clear from the record just what sum the plaintiff should recover, it is clear that he is entitled to recover all the money he paid for the interest in'the business, less any proper credits arising from benefits he received while a partner, or from the proceeds of his sale to Christopher. The evidence shows he received $300 from Christopher and a note for the balance of the $1,000. It was proper to consider, however, the labor and efforts he expended in making the business worth enough to realize $1,000 for his interest. We think it is apparent that the court did not allow the plaintiff too much; and the defendants cannot complain if the amount of the judgment' is less than the evidence would warrant. We are impressed with the belief'that substantial justice has been accomplished. The findings are fully sustained by the evidence; in fact, Mueller’s admissions on his cross-examination tended strongly to corroborate the story told by the plaintiff. He admitted that he had been at one time part owner of the business, but claimed to have resold his interest to Christopher. The jury found that Mueller represented that the produce company was a good going business, and that if he was not tied up he would go into it himself. The petition alleged the representation to be that the business was a money-maker, and that Mueller would go into it himself if he was riot tied up. We see no substantial difference. This finding, together with the findings that Mueller was interested in the business; that he knew the written statement handed plaintiff by Christopher was false; that he made the representations knowing them to be false; that he did know about the books and accounts of the business at the time of the sale and was not acting in good faith; and the further finding that the business had no value, we think ought to be sufficient to support the judgment.
The argument that if any fraud was perpetrated it was in the sale of the property, not in making the loan to Abmeyer or taking the proceeds of the loan in payment of the debt the business owed to the bank, is not sound. There was evidence to sustain a finding that the fraud permeated the whole transaction, and the court was fully warranted in instructing that the knowledge the president of the bank received while acting in its behalf would be the knowledge of the bank.
The court gave the proper measure of damages to be the difference between the reasonable value of the one-half interest in the business at the time of its purchase by plaintiff, and what it was represented to be worth at that time. (Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496; Stroupe v. Hewitt, 90 Kan. 200, 133 Pac. 562; McDaniel v. Whalen, 91 Kan. 488, 138 Pac. 590; Epp v. Hinton, 91 Kan. 513, 138 Pac. 576.)
Numerous other complaints are urged against the instructions, but we think those given by the court fairly stated the law applicable to the facts.
Amendments of pleadings are within the discretion of the trial court, and there was no abuse of discretion in permitting the petition to be amended. The court instructed that in deterriiining the real facts, the jury might consider the statements in the original, as well as those in the amended, petition.
Requested instruction No. 6 was properly refused; the bank was not entitled to a verdict merely because Mueller was acting in his own interests, provided, as the court charged in other instructions, he was at the same time acting in the interest of the bank. Besides, the bank must be held to have ratified and approved his conduct when, after it had received written notice of plaintiff’s claim of fraud, it elected to retain the $2,850 which went to satisfy Christopher’s notes. The law will not permit it to retain the benefits of the transaction while denying the authority of the agent by whom it was consummated. (Bank of Lakin v. National Bank, 57 Kan. 183, 45 Pac. 587; Lumber Co. v. Silo Co., 92 Kan. 368, 140 Pac. 867; Means v. Bank, 97 Kan. 748, 156 Pac. 701; Advertising Co. v. Smalley, 101 Kan. 645, 168 Pac. 677.)
It is seriously contended that defendants were entitled to judgment on the opening statement of counsel for plaintiff; and this is based upon an excerpt of about a dozen lines of a statement said to have comprised twelve pages of manuscript. Authorities criticising the practice of directing a verdict on opening statements, and restricting the scope of the trial court in that respect, are not cited by the defendants. (Brashear v. Rabenstein, 71 Kan. 455, 80 Pac. 950; and cases cited in Note, 29 L. R. A., n. s., 219.)
We discover no error in the record, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On March 20, 1917, O. L, Davis, a merchant, executed a bill of sale on his stock to R. L. Glascock, who took possession thereof. On March 24,1917, the Linn County Bank, a creditor of Davis, brought an action against him upon its claims, and caused a garnishee summons to be served upon Glascock, who filed an answer denying any liability to Davis. The plaintiff took issue on this answer on the ground that the transaction between Davis and Glascock involved a violation of the bulk-sales law, inasmuch as it had been given no notice thereof. A trial resulted in a judgment in favor of the garnishee, and the plaintiff appeals.
At the time of the execution of the bill of sale the seller gave to the buyer a list of his creditors, complete except for the omission of the plaintiff. The buyer (the garnishee), having no knowledge of the existence of the plaintiff’s claim, paid off all the other creditors. He contends that these facts protect him from liability, assuming that the bulk-sales law is applicable to the transaction.
There is some conflict of judicial opinion as to the effect of the omission of one or more creditors from a list otherwise properly furnished in accordance with the bulk-sales law, at the time of a sale of a stock of goods. In some jurisdictions it is held that in such a case the omitted creditors have no remedy against the buyer (Coach v. Gage, 70 Oregon, 182; International Silver Co. v. Hull & Co., 140 Ga. 10), even if he learns of their claims before making payment. (Glantz v. Gardiner, 100 Atl. 913 [R. I. 1917].) A view more in keeping with the spirit and purpose of the statute is that the buyer is bound to hold any part of the price still under his control when he is advised of the existence of a creditor not mentioned in the list. (In re Thompson, 242 Fed. 602; see, also, Rabalsky v. Levenson, 221 Mass. 289.) Here the transfer of stock was made in consideration of a preexisting debt, and it seems that (inasmuch as a release procured by the debtor’s furnishing an incomplete list of creditors, in violation of the law, would be ineffective) the buyer would have parted with nothing- in the transaction, and would therefore be answerable to the omitted creditor. That, however, need not be determined, for the same result follows from another circumstance. The statute requires the list of creditors given to the buyer to be certified by the seller under oath to be complete. (Gen. Stat. 1915, § 4894.) No such verification was made in this case. If the buyer had insisted upon the law being followed in this regard it is conceivable that the seller would have used more diligence in assuring himself of ■the completeness of the list. At all events, the buyer, having closed the deal without requiring a compliance with the statute, acted at his peril, and the title he received is subject to the ■claims of the omitted creditor. (Williams v. J. W. Crowdus Drug Co., 167 S. W. 187 [Tex. Civ. App. 1914].)
So far it has been assumed that the bulk-sales law applies to the transaction, involved. A doubt on this question arises from evidence that the bill of sale referred to was given as security, and from the circumstance that at the time of its execution the buyer agreed in writing to reconvey the property upon the repayment of the purchase price within a fixed time. If, however, the bill of sale is deemed to have been in legal contemplation a chattel mortgage, we still regard it as constituting a “sale or disposal” of the stock within the meaning of the .statute. If the owner of a stock of merchandise, while allowed to sell it only upon notice to his creditors, could mortgage it ■effectively without such notice, the evasion of the statute would be so easy as to deprive it of all practical force. In this state the title to chattels passes by the execution of a mortgage (Gen. Stat. 1915, § 6501), which therefore amounts to a sale, ■or at least to a disposal. This view finds support in decisions elsewhere. (Baker v. Nipper, 198 S. W. 596 .[Texas Civ. App. 1917]; Semmes v. Stecher Brewing Co.; 195 Mo. App. 621.) In some jurisdictions, what might seem to be a contrary conclusion is reached, but this is by reason of local statutes under which the mortgagor of chattels continues to be their owner. (Des Moines Packing Co. v. Uncaphor, 174 Iowa, 39; Hannah & Hogg v. Richter Brewing Co., 149 Mich. 220; Dill et al. v. Ebey, 27 Okla. 584.)
It appears that in May, 1916, Davis had executed a chattel mortgage on the stock to Glascock to secure the same debt, and it is suggested that this gave a valid lien which is a protection to the garnishee. Assuming that this mortgage, if otherwise valid, would not itself have been void under the bulk-sales law, it cannot be regarded as affecting the present situation, for it permitted sales by the mortgagor without an accounting, thus rendering it ineffectual (Bank v. Hardman, 89 Kan. 212, 131 Pac. 602), and the mortgagee said of it on the stand that “this merchandise stuff was changing hands all the time and it was n’t security.”
It results from these considerations that error was committed in denying the plaintiff all relief. The extent of his recovery, however, remains to be determined. The goods, in a sense, constituted a trust fund for the benefit of all creditors alike, and as the purchaser was free from intentional wrong he may justly be subrogated to the rights of the creditors whose claims he has paid off. (Note, 51 L. E. A., n. s., 343; L. E. A. 1917D 1067.) Nor is any reason apparent why his own claim should not be as favorably treated as those of others. We conclude, therefore, that the plaintiff should recover the proportion of the value of the stock that the amount of his claim bears to the total sum owed by the vendor at the time of the sale, including the debts paid off by the buyer and that originally owing to him.
A complaint is made regarding a matter of practice. The petition included allegations regarding the violation of the bulk-sales law, which were stricken out on motion of the defendant. The purchaser’s liability might have been determined in' a direct action against him, as well as by garnishment (Burnett v. Trimmell, 103 Kan. 130, 173 Pac. 6), but as he was not made a defendant, the averments in question seem to have served no purpose In "the petition.
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
MASON, J.:
In April, 1916, the board of county commissioners of Pawnee county placed upon the tax roll notes and mortgages owned by Robert Boyd, valued at $148,865. In the following October he brought an action to enjoin the collection of a tax based thereon, upon the ground that he was not a resident of Kansas. He was denied relief, and appeals.
The whole controversy turns upon the question of fact, whether or not the plaintiff on the first day of March, 1916, was a resident of this state. The only witness produced was the plaintiff himself, who testified that he had been a resident of Pawnee county from 1887 until about the first of January, 1915, when he went to California, with his family, with the intention of making his permanent home there, and then became and has ever since "remained a resident of that state. The court made findings of these facts, among others': The plaintiff had been offering his house in Larned for sale for six years; in 1914 he advertised such offer in a local paper; he sold the property a week before the hearing; for a number of years and up to the time of the trial he had kept a desk and safe in the office of a firm in which his son was a partner, where he transacted such business as he had; about January 1, 1915, he went to California and rented furnished apartments at Long Bea,ch; in May, 1915, he and his family returned to Larned and occupied their house as they had before done; in October, 1915, they again went to California, and in June, 1916, they returned to Kansas and again occupied their furnished house, where they lived up to the time of the trial, except for a month spent at Excelsior Springs; on May 24, 1916, the plaintiff registered as a voter in California, but never voted there; he did not furnish the rooms rented, at Long Beach and did not retain them when he came back to Lamed.
These facts are not determinative of the issue. No one of them is necessarily inconsistent with the conclusion that the plaintiff’s residence had all the time remained in Kansas, nor with the conclusion that a change therein had been effected. The situation was such that the physical facts would fit into either hypothesis, and the matter was controlled by the plaintiff’s intention. The trial court obviously believed that the plaintiff never did in fact form a present intention of making himself a resident of California — that what he did tending to show such a state of mind, including his registratioh as a voter, was merely colorable, with a purpose of evading the payment of his taxes. The truth of his statements, and the debatable inferences to be drawn from the established facts, were for the decision of the trial court, and we cannot say that the conclusion reached was without support.
The judgment 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. Judgment was rendered for the defendant, and the plaintiff appeals.
The defense was that the note was executed on condition, and that the condition on which liability depended had not occurred. The evidence was conflicting, and besides that, the plaintiff contended the evidence adduced in support of the defense did no more than impeach the certainty of the obligation to pay. The solution of the controversy, therefore, depended on what facts were established, and the legal effect of the established facts.
The evidence most favorable to the defendant indicated that the note was given to take effect on condition that a tract of land be sold for an amount greater than the defendant’s investment in it, equal to the face of the note. It was not disputed that the land had not been sold. Under these circumstances the note had not become an enforceable obligation.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
In 1909, the plaintiff'obtained a divorce from the defendant in Chicago, Ill. The decree contained the following language:
“It Is Further Ordered, Adjudged and Decreed by the court, that the defendant pay to the complainant as alimony the sum of Nine Dollars ($9.00) a week for each and every week hereafter, said payments to begin on Monday, August 2, A. D. 1909, and out of said alimony, said complainant shall pay for the education of the son, Merlin Dutcher, at the School at Jubilee Oak Hill, Ill.”
The present action was commenced by the plaintiff in July 1915, to recover $588 which, she alleges, was then' due and unpaid under the decree. The answer alleges that, after the rendition of the decree, the plaintiff and the defendant orally agreed that the defendant should pay the plaintiff $30 a month alimony and should supply clothes and other things which might be needed from time to time for the son, Merlin Dutcher. The a,nswer further alleges that the defendant has complied with that agreement, has paid the $30 a month promptly, and has furnished the clothes and other articles for the child, and also alleges that these payments and articles have been accepted by the plaintiff in compliance with her agreement. The plaintiff demurred to the answer. The demurrer was overruled, and the plaintiff appeals.
The plaintiff says:
“Can a decree for alimony and maintenance for minors he altered and the rights of a minor dependent child thereunder, be waived by parol agreement between parties without approval or sanction of, or application to, the court?”
The plaintiff’s question must be añswered in the affirmative, on the authority of Walrath v. Walrath, 27 Kan. 395, supported by Miller v. Morrison, 43 Kan. 446, 23 Pac. 612. In the Walrath case, the plaintiff procured a divorce and was given the custody of two minor children and was given $200 annually for the support of the children. After the divorce had been granted, the plaintiff and defendant made other arrangements for the support and maintenance of the children. That arrangement was held binding on the plaintiff.
In the present action, the plaintiff argues that the minor child has rights in the judgment which cannot be ignored by the parents. What was given to the child by that judgment?. Nothing. The plaintiff was given $9 a week alimony, and out of that she was to pay for the education of the child. The defendant was not, by the judgment, released from his obligation to support the child, neither was he released from that obligation by the contract he made with the plaintiff. It does not appear that the plaintiff cannot pay for the education of the child out of the $30 a month. There is nothing in the present case to take it out of the reasoning followed in Walrath v. Walrath. It follows that the plaintiff is bound by the arrangement she made with the defendant concerning the amount of payments to be made by him, and concerning the times of making such payments.
The demurrer to the answer was properly overruled, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
Mrs. Esther Blaney, the nonresident owner of a farm, leased it to O. A. Lemon for one-third of the grain raised, for a period of five years ending August 15, 1911. Lemon continued in the occupancy of the place for two years longer, becoming a tenant from year to year. In the fall of 1913 he turned the land over to A. W. Lamb, who paid him $175 on account of the plowing that had been done, and some fencing and straw. Lamb sowed wheat that year and the next, delivering the landlord’s share of the crop to Lemon, who sold it, paid the taxes out of the proceeds, and sent the balance to Mrs. Blaney. In July, 1915, Mrs. Blaney executed a new lease to Lemon, running from August 15, 1915, to August 15, 1918. In September, 1915, Lemon took possession of the place over Lamb’s protest. Lamb brought an action against Lemon for damages for dispossessing him, and upon a jury trial recovered a judgment for $391, from which this appeal is taken. The defendant having died, the appeal is prosecuted by his administratrix.
The principal contention upon which a reversal is asked is that there was no competent evidence to sustain the verdict. The plaintiff'testified that he took possession of the property in the fall of 1913 under these circumstances: The defendant told him he was going to leave and wanted to rent him the land for one-third of the crop; he answered that if he could have it for three years he would give that for it; the defendant replied that this would be satisfactory — that he had been attending to the owner’s business and was renting it — that he had been looking after her affairs there — that he was the agent; the plaintiff then said that he would rent the place, and thereupon took possession, paying the $175. There was evidence that the owner met the plaintiff in the summer of 1915 and learned from him that he was occupying her farm; that she made no objection and did not demand possession, nor did the defendant do so prior to September, 1915; and that she had learned from the defendant that the plaintiff had been in possession for a year or two.
Testimony that the defendant had said he was the agent of the owner, in the connection in which the statement was represented to have been made, furnished some evidence that he had authority to rent the place, and with the other evidence warranted a finding that the plaintiff was put on the farm by the owner’s agent under an oral lease for three years, and that thereby, and by his subsequent occupancy and payment of rent in accordance with the terms fixed, he became a tenant from year to year, entitled to possession until served with a notice to quit. (Gen. Stat. 1915, §§ 5957, 5960.) Such a finding would justify a verdict for the plaintiff. The appellant invokes the rule that the fact of agency cannot be proved by the declarations of the supposed agent. But here the person who is alleged to have been the agent is the adverse party to the person making the claim, and the evidence of what he said on the sub ject is competent against him as an admission. (Blake v. Bremyer, 84 Kan. 708, 115 Pac. 538, annotated in 35 L. R. A., n. s., 165.) The contention is made that the plaintiff was bound to make an investigation concerning the defendant’s authority-before dealing with him on the assumption that he was the owner’s agent. The principle invoked cannot control in an action against the agent, upon whose own statements as to his agency the adverse party relies.
The appellant argues that in dispossessing the plaintiff the defendant acted in the owner’s right — that inasmuch as he held a lease from the owner he had whatever right of possession the owner enjoyed — that to deny his right was to deny the right of the owner — and that the rights of the owner should not be. prejudiced by any wrong done by the defendant, or by evidence, of what the defendant had said, unless his agency was proved otherwise than by his own declarations. Notwithstanding .the considerations suggested, the fact remains that the owner of the land was not made a party to this litigation. The only parties were Lamb and Lemon, and statements made by the latter were, ás against him, competent evidence of the facts stated. His representation that he was the owner’s agent was sufficient to warrant the jury in finding that such agency existed. Moreover, the deposition of the owner discloses that the defendant agreed with her that he would procure possession of the land from the plaintiff in time for wheat sowing in the fall of 1915, and that he had promised her that she should not be liable for any expense incurred in this action, so that; the defendant appears to have been the person ultimately affected, as well as the real party in interest in the eye of the law.
An instruction was given to the effect that a tenancy from year to year, created by the holding over of the tenant, would terminate on March first unless the lease provided otherwise. This is criticised on the ground that such a tenancy does not of its own force terminate on the first of March, but is terminated only by a written notice of at least thirty days, ending, in case of farm land, at that time. We do not regard the inaccuracy of statement as prejudicial in this case.
Complaint is made because the instructions included statements to the effect that (1) a sublessee can hold possession until the expiration of the original lease, unless lawfully dispos sessed by an action in court, and (2) that if a tenant who has no right to sublet does so, he cannot, during the term of the sublease, dispossess the sublessee, even although he has a new lease from the owner. Whether or not these statements are correct expositions of the law, we think the chances of their having affected the verdict are so remote that a reversal should not be ordered on account of them. The plaintiff in his pleading relied upon a lease from the owner which in his testimony he asserted was made through the defendant as her agent. The jury were told that in order to recover, the plaintiff was required to establish all the allegations of his petition, which of course included that regarding the making of a lease to him by the owner. If they followed that instruction they necessarily made a finding that such a lease was given, and this of itself determined the defendant’s liability. The instructions regarding the effects of a sublease were doubtless suggested by the fact that the five-year lease contained a covenant against subletting. They seem to have been irrelevant to the issues, and there is a possibility that the jury were confused by them. But as no instruction was given to the effect that a verdict could be rendered in favor of the plaintiff on the theory that he had a right to possession as a subtenant, it seems highly' improbable that the verdict could have been based on that idea, or could have been in any way affected by the instructions on the subject of subletting.
An instruction was given to the effect that the plaintiff was entitled to recover the market value of his straw that was destroyed by the_ defendant, not exceeding $150. The form of the statement was obviously objectionable as seeming to assume that the defendant was liable in some amount on that account. Reading the charge as a whole, the jury would readily understand that the considerations upon which liability depended had already been stated, and that in this instruction the court was dealing only with the measure of damages; that they did so understand, and that they found .for the plaintiff upon the general issue, and not merely on account of this instruction, is apparent from the fact that they allowed actual damages in excess of $150. '
The jury were told that under a lease of farm property which fixes the rent at a share of the grain, the tenant is entitled to the straw. The appellant argues that this was error — that the ownership of the straw depended upon custom. As there was no evidence of any different custom, the rule stated was that which this court has already adopted. (Mull v. Boyle, 102 Kan. 579, 581, 171 Pac. 652.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Thomas L. Peterson, from his conviction for driving on a suspended driver’s license in violation of K.S.A. 1997 Supp. 8-262(a)(l).
On February 3, 1996, Peterson’s driving privileges were administratively suspended for 1 year for refusal to submit to a drug and alcohol test. He was eligible for reinstatement on February 3,1997, and his driving privileges were reinstated on that date. The following day the Kansas Department of Revenue, Division of Vehicles Driver Control Bureau, sent Peterson a “Driver’s License Suspension Order.” The notice stated:
“DUE TO YOUR ALCOHOL OCCURRENCE YOU ARE REQUIRED TO TAKE AND PASS THE COMPLETE DRIVER’S LICENSE EXAMINATION AND PAY THE REQUIRED FEES.
“YOU MUST SUCCESSFULLY COMPLETE THIS EXAMINATION WITHIN THIRTY (30) DAYS FROM THE DATE OF THIS LETTER. IF YOU FAIL TO DO SO YOUR DRIVING PRIVILEGES WILL BE SUSPENDED ON THE DATE CITED ABOVE WITHOUT FURTHER NOTICE FROM THIS DIVISION.
“YOU MUST PRESENT THIS ORDER TO THE DRIVER LICENSE EXAMINER.”
Peterson did not take the driver’s license examination or pay the required fees ($50 reinstatement fee and $5 examination fee).
On March 30, 1997, Peterson was arrested for various traffic infractions and for driving while his license was canceled, revoked, or suspended in violation of K.S.A. 1997 Supp. 8-262(a)(l). Peterson subsequently paid the required fees, passed the driver’s license test, and was granted a new license to operate a motor vehicle on May 20, 1997.
The sole issue in this case is whether the district court erred in convicting Peterson of driving on a suspended license in violation of K.S.A. 1997 Supp. 8-262(a)(l). Peterson contends that he has a defense under subparagraph (2) of that statute. This is a matter of statutory construction, and “ [interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited. [Citations omitted.] When determining a question of law, this court is not bound by the decision of the district court. [Citation omitted.]” State v. Lawson, 261 Kan. 964, 966, 933 P.2d 684 (1997).
Under K.S.A. 1997 Supp. 8-262(a)(l), “[a]ny person who drives a motor vehicle on any highway of this state at a time when such person’s privilege so to do is canceled, suspended or revoked shall be guilty of a: (A) Class B nonperson misdemeanor on the first conviction.”
K.S.A. 1997 Supp. 8-262(a)(2), however, states:
“No person shall be convicted under this section if such person was entitled at the time of arrest under K.S.A. 8-257, and amendments thereto, to the return of such person’s driver’s license or was, at the time of arrest, eligible under K.S.A. 8-256, and amendments thereto, to apply for a new license to operate a motor vehicle.”
The statutes referred to within K.S.A. 1997 Supp. 8-262(a)(2) provide that “[t]he division shall not suspend or revoke a person’s license to operate a motor vehicle on the public highways for a period of more than one year, except as specifically authorized by statute.” K.S.A. 1997 Supp. 8-256. Also, when the division suspends a license, “such license shall be surrendered to and be retained by the division except that at the end of the period of suspension of such license, the license so surrendered shall be returned to the licensee, except as otherwise provided by law.” K.S.A. 8-257.
In Lawson, the defendant’s driver’s license was suspended for failure to maintain automobile insurance in accordance with K.S.A. 1997 Supp. 40-3104.
K.S.A. 1997 Supp. 40-3118(f) provides:
“Whenever the registration of a motor vehicle or the driving privileges of the owner of the vehicle are suspended or revoked for failure of the owner to maintain continuous financial security, such suspension or revocation shall remain in effect until satisfactory proof of insurance has been filed with the director as required by subsection (d) and a reinstatement fee in the amount herein prescribed is paid to the division of vehicles.”
Lawson was charged with driving in violation of the suspension order. Subsequent to his arrest, he obtained automobile insurance, filed the requisite forms, and obtained reinstatement of his driving privileges. He argued that since his driving privileges were restored a few weeks after his arrest, he was eligible for reinstatement at the time of his arrest, and K.S.A. 1997 Supp. 8-262(a)(2) barred his prosecution. The trial court dismissed the complaint on the basis that he was eligible for reinstatement and thus prosecution was barred.
This court held:
“It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. [Citation omitted.] The several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony and giving effect to the entire statute if it is reasonably possible to do so. [Citations omitted.]” 261 Kan. at 966.
We also held that when a statute is plain and unambiguous, “the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute as to add something not readily found in the statute. State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2, 895 P.2d 1267 (1995).” Lawson, 261 Kan. at 966. Although crim inal statutes are to be construed strictly against the State, the Lawson court reasoned that when the defendant was arrested on September 15, 1995, he was not entitled to the return of his license under K.S.A. 8-257, nor eligible under K.S.A. 1997 Supp. 8-256 to apply for a new license. Rather, he was under an order of indefinite suspension of his driving privileges which could end only by his submitting satisfactory proof of insurance and paying the requisite fee. 261 Kan. at 969.
In the case presently before us, the Division of Vehicles sent Peterson a letter pursuant to K.S.A. 1997 Supp. 8-241. This statute delineates in part:
“(a) Except as provided in K.S.A. 8-2,125 through 8-2,142, and amendments thereto, any person licensed to operate a motor vehicle in this state shall submit to an examination whenever: (1) The division of vehicles has good cause to believe that such person is incompetent or otherwise not qualified to be licensed; or (2) the division of vehicles has suspended such person’s license pursuant to K.S.A. 8-1014, and amendments thereto, as the result of a test refusal, test failure or conviction for a violation of K.S.A. 8-1567, and amendments thereto, or a violation of city ordinance or county resolution prohibiting the acts prohibited by K.S.A. 8-1567 and amendments thereto, except that no person shall have to submit to and successfully complete an examination more than once as the result of separate suspensions arising out of the same occurrence.
“(b) When a person is required to submit to an examination pursuant to subsection (a)(1), the fee for such examination shall be in the amount provided by K.S.A 8-240, and amendments thereto. When a person is required to submit to an examination pursuant to subsection (a)(2), the fee for such examination shall be $5. In addition, any person required to submit to an examination pursuant to subsection (a)(2) shall be required, at the time of examination, to pay a reinstatement fee of $50.. . .
“(c) When an examination is required pursuant to subsection (a), at least five days’ written notice of the examination shall be given to the licensee. The examination administered hereunder shall be at least equivalent to the examination required by subsection (e) of K.S.A. 8-247, and amendments thereto, with such additional tests as the division deems necessary. Upon the conclusion of such examination, the division shall take action as may be appropriate and may suspend or revoke the license of such person or permit the licensee to retain such license, or may issue a license subject to restrictions as permitted under K.S.A. 8-245, and amendments thereto.
“(d) Refusal or neglect of the licensee to submit to an examination as required by this section shall be grounds for suspension or revocation of the license.”
Peterson received a letter informing him that he needed to take certain affirmative actions before his driving privileges could be reinstated. In addition to paying a required fee and satisfactorily completing the test, the division had further discretionary power pursuant to K.S.A. 1997 Supp. 8-241(c). Under K.S.A. 1997 Supp. 8-241(c), the division may require additional tests as it deems necessary and may suspend or revoke the license, permit the licensee to retain such license, or issue a license subject to restrictions.
In Lawson, we held the defendant was ineligible by reason of having failed to acquire the requisite liability insurance. Here, Peterson similarly violated K.S.A. 1997 Supp. 8-241 by failing to take the requisite test and pay the mandatory fees in accordance with the statute. He thus was not eligible for reinstatement or entitled to the return of his license at the time of his arrest. We believe the situation to be analogous to that addressed in Lawson. When Peterson failed to comply with the requirements of K.S.A. 1997 Supp. 8-241 within the 30-day period after February 3, 1997, he was no longer eligible for reinstatement. He became subject to K.S.A. 1997 Supp. 8-241(d). When Peterson was arrested, he was under an order of indefinite suspension of his driving privileges pursuant to K.S.A. 1997 Supp. 8-241(d), which could only end upon his completion of the requisite acts set out in K.S.A. 1997 Supp. 8-241. We thus hold that under the facts of this case, K.S.A. 1997 Supp. 8-262(a)(2) is inapplicable.
Affirmed.
Allegrucci, J., concurring in the result. | [
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The opinion of the court was delivered by
Allegrucci, J.:
Taxpayer Alsop Sand Company, Inc., (Alsop) appealed the Kansas Department of Revenue’s (KDR) assessment of additional sales and use taxes on parts of machinery and equipment. Alsop contended that the items were exempt from taxation as “major components” of manufacturing machinery and equip ment under K.S.A. 79-3606(kk). The hearing officer disagreed. Alsop appealed to the Board of Tax Appeals (BOTA), which concluded that the items were exempt. KDR appealed to the Court of Appeals, which concluded that the items were not exempt. 24 Kan. App. 2d 527, 948 P.2d 667 (1997). This court granted Alsop’s petition for review.
This dispute revolves around the interpretation of K.S.A. 79-3606(klc), specifically, whether Alsop’s machinery and equipment parts are exempt from sales and compensating use taxation as "major components” of manufacturing machinery and equipment. The facts are concisely stated by the Court of Appeals as follows:
“Alsop operates sand dredging operations. Sand is a natural abrasive. During the audit period in question, June 1, 1989, to May 31, 1992, Alsop spent over $50,000 replacing pump parts, screws, screens, pipe flanges, pipe elbows, clamps, a winch, an impeller, and an electric motor on its dredges. Alsop expensed all of' the above expenditures and did not capitalize any.
“In September 1992, the KDR issued Alsop a notice of assessment of additional retailer sales and use taxes in the amounts of $49,011 and $3,673, including interest and penalties, for fuel purchases and the various equipment, machinery, and parts mentioned above for the period in question. The total assessments of additional taxes, including interest and penalties, were subsequently reduced to $9,893 and $3,510.
“On appeal to the Director of Taxation, an administrative law judge (ALJ) denied Alsop’s exemption request and found that the impeller, plates, sleeves, screens, pipe flanges, screws, pipe elbows, motor, and other pump parts did not qualify for the exemption stated in 79-3606(kk) because the items were not capitalized and were not used directly and primarily for manufacturing. The ALJ upheld the KDR’s assessments.
“On appeal to BOTA, BOTA found that the components at issue were exempt from taxation under K.S.A. 79-3606(mm) (now K.S.A. 1996 Supp. 79-3606[kk]) because the items were used in the production process. BOTA rejected the KDR’s contention, noting: ‘There exists no law or regulation which states that expensed items do not qualify whereas capitalized items will. The distinction may be easy to apply, but it does not appear in law.’ BOTA further noted that the size and cost of the items in issue were not determinative of whether the items constituted ‘major components’ for purposes of the exemption. BOTA found the appropriate test was to consider the importance of the equipment and its purpose in the production process, stating:
‘An exempt item would do its essential function on the processing machinery at some point before the final product is produced. In this case, the components are parts of the machinery used to produce the sand. Without these particular items on the processing machinery the process would grind to a halt. These items are then integral to the process of producing salable sand. The evidence shows that these items transport, convey, or handle the sand before it reaches its final stage.’ ” 24 Kan. App. 2d at 528-29.
The statute exempts the following from sales and use taxes:
“(kk)... [A]ll sales of machinery and equipment used directly and primarily for the purposes of manufacturing, assembling, processing, finishing, storing, warehousing or distributing articles of tangible personal property in this state intended for resale by a manufacturing or processing plant or facility or a storage, warehousing or distribution facility:
(2) For purposes of this subsection ‘machinery and equipment used directly and primarily’ shall include, but not be limited to:
(A) Mechanical machines or major components thereof contributing to a manufacturing, assembling or finishing process.” K.S.A. 79-3606(kk)(2)(A).
According to the Court of Appeals, “[t]he term ‘major components’ is not defined by statute or case law.” 24 Kan. App. 2d at 528. KDR defines “major component” as a part or equipment that has been designated by the taxpayer as a capital expenditure for federal tax purposes. BOTA defines “major component” as a part that is necessary to the process.
The Court of Appeals noted that it was faced with a “disagreement between two administrative agencies as to the interpretation of a statute” and that it would consider the position of each. 24 Kan. App. 2d at 530. According to the Court of Appeals, neither warranted particular deference, however, because ‘“[t]he final construction of a statute rests within the courts.’ [Citation omitted.]” 24 Kan. App. 2d at 530. We agree. With respect to the construction of statutory tax exemptions and the burden of proof, the Court of Appeals quoted In re Tax Appeal of Taylor Crane & Rigging, Inc., 22 Kan. App. 2d 27, 28, 913 P.2d 204, rev. denied 258 Kan. 858 (1995), to the effect that statutory exemptions are to be strictly construed against the taxpayer, who bears the burden of establishing an exemption. 24 Kan. App. 2d at 529.
KDR is the administrative agency charged with the responsibility of implementing and enforcing tax legislation. When properly promulgated by the administrative agency in accordance with K.S.A. 77-415 et seq., administrative rules and regulations have the force and effect of law. Any rule and regulation not filed and published as required by the statutes, however, “shall be of no force or effect.” K.S.A. 77-425. In the present case, KDR relied in the Court of Appeals on a published “‘rule’ which defines the phrase ‘major component’ as those items which are capitalized for federal income tax purposes.” 24 Kan. App. 2d at'530. The Court of Appeals, however, concluded the “rule” to have no force or effect because it “was contained in an information guide, which also stated: ‘This information guide was designed for informational purposes only. Under no circumstances should the contents be used or cited as authority for setting or sustaining a technical position.’
” 24 Kan. App. 2d at 530. There is no contention that any of the contents of KDR’s Information Guide 19-88-1, Kansas Retailers’ Sales Tax; Sales Tax Exemption for Manufacturing Machinery and Equipment, have been filed and published so as to have the force and effect of law. In its súpplemental brief in this court, KDR does not mention its previous reliance on the “rule” in the information guide.
The Court of Appeals, despite KDR’s misplaced reliance on the “rule,” found its argument more convincing than Alsop’s:
“[W]e should not completely disregard the KDR’s interpretation of 79-3606(kk). The KDR interpretation establishes a bright line test that is easily applied and understood by taxpayers. By requiring an item to be a capital expenditure to qualify as a major component, the KDR’s test implicates a belief that those items with a useful life extending beyond the close of a taxable year are an integral part of the manufacturing process. See 26 U.S.C. § 263 (1994).
“Alsop maintains the KDR’s test fails to consider the importance of each component or its role in the overall production process' and arbitrarily denies exemption to any item of property which is simply expensed by a taxpayer. Alsop argues the test allows the KDR to simply review a taxpayer’s federal income tax return to determine whether a particular component was capitalized and, thus, qualifies for the exemption. Alsop contends the KDR’s interpretation is too restrictive.
“We conclude that' the KDR’s position is rationally related to the legislature’s objective to reduce the impact state taxation has on the production of goods. The KDR’s position and definition provides a bright line for business planning and leaves much of the classification to the taxpayer. It takes the uncertainty out of business decisions and, potentially, will save on appeals, costs, attorney fees, penalties, and interest;” 24 Kan. App. 2d at 530-31.
In its petition for review, Alsop argued that the decision of the Court of Appeals is contrary to this court’s decision in Board of Leavenworth County Comm'rs v. McGraw Fertilizer Serv., Inc., 261 Kan. 901, 933 P.2d 698 (1997). Alsop’s representation of the holding in that case was as follows: “[U]nless there was express statutory language in the Kansas statutes, a court should not rely on federal income tax provisions to interpret Kansas taxing statutes.” Review of the case does not support this assertion. The court held that the valuation standard, “retail cost when new,” may include charges for freight and installation but not for sales tax. 261 Kan. at 923. The court’s opinion includes some discussion why I.R.S. publications arid federal income tax concepts provide neither answers nor persuasive analogs to the peculiar Kansas valuation standard, but the court did not state a general rule cleaving state from federal income tax provisions. In that case, the Director of the Division of Property Valuation relied on an I.R.S. publication to support his contention “that to ‘men of common understanding,’ the term ‘cost’ means ‘total acquisition cost’ to the consumer.” 261 Kan. at 912. The court observed: “I.R.S. publications, accounting research bulletins, and interpretations of the I.A.A.O. [International Association of Assessing Officers] are not persuasive authority regarding ‘common understanding.’ ” 261 Kan. at 913. The court wrapped up its discussion of “other authority” with the following:
"While various theories of market value appraisal have been used in other jurisdictions as a rationalization for considering components of expense such as freight and installation charges and sales tax, this does not dictate the same result in Kansas where ‘retail cost when new’ has replaced ‘fair market value.’ No other taxing jurisdiction in the United States, including the I.R.S., uses the terminology ‘retail cost when new.’ This term is unique to the State of Kansas. It is not the equivalent of ‘fair market value,’ ‘cost basis for federal income tax purposes,’ ‘cost basis for accounting purposes,’ or ‘cost approach to fair market value.’ The phrase ‘retail cost when new’ contains words which are commonly used and understood. Persons of common understanding would not expect to have to refer to definitions utilized by other states and the I.A.A.O. and I.R.S. to arrive at a definition of the term. Based upon this analysis, statutory definitions and case law from other jurisdictions are not persuasive.” 261 Kan. at 914-15.
This court’s opinion in Board of Leavenworth County Comm’rs does not rule out the possibility that federal income tax provisions in appropriate circumstances may prove to be valuable references in state tax matters, with or without express state statutory reference to the federal code.
The legitimate point that Alsop makes with regard to Board of Leavenworth County Commrs and other cases is that ordinary words ought to be given their ordinary meanings. Thus, words that are commonly used and understood should not be removed from the realm of common understanding by construing them with reference to some external source. Alsop contends that the phrase “major component” is one of common usage and common understanding. It urges the court to make the following inquiry: “[H]ow would a person of common understanding interpret the term ‘major component’?” Alsop’s suggested answer, or more accurately lack of one, seems indicative of the weakness in its argument. Rather than saying how a person of common understanding would interpret “major component,” Alsop states that “such a person certainly would not be expected to be required to refer to the morass of laws, regulations and case law regarding what is and what is not a capital expenditure.” Alsop does not attempt to set out a definition of “major component” that would reflect the common understanding, and one senses that Alsop regards “major component” as one of those things one will know when one sees it.
Understandably, Alsop praises BOTA’s approach: “BOTA carefully reviewed the nature of Alsop’s operation and the role of the various components within the integrated manufacturing process before determining that those items were exempt as ‘major components’ of manufacturing equipment. This was the kind of case-by-case analysis which the legislature intended.”
Pertinent portions of BOTA’s decision are set out here:
“This Board conducted a hearing in this matter on July 6, 1995. After considering all of the evidence presented thereat, and being fully advised in the premises, the Board finds and concludes as follows:
“3. The Department issued an assessment against the Taxpayer for compensating use taxes in the amount of $2,276.00.. ..
“4 . . . [T]he amount of $2,075.79 in compensating use tax is at issue....
“6. . . . $1,409.69 in sales tax assessments is at issue....
“7. The Taxpayer is the owner of sand mining operations .... The sand is mined by a dredge from pits in two basic types of operations . . . called the simple operation and the complex operation.
“14. The equipment consists of pumps, screens, sieve and pump parts such as impellers, plates, and sleeves.
“15. . . . [T]he impeller must be replaced once a year, the plates are replaced between 1 and 3 years, and the sleeves are replaced once a year. . . . The stationary screens are replaced as often as every eighteen hours. . . . The vibrating screens last about a year. . . .
“16. An electric motor used to blend sand in the pug mill was also purchased. The motor has a life of 10 years.. . .
“17. The Taxpayer has a dredge that was built in the 1940’s; however, every component on it has been changed out and replaced with new components.. . .
“18. The Taxpayer capitalizes the entire dredge, but not the replacement parts. Those replacement parts, such as sleeves, flanges, and so forth, are expensed. ..
“19. The hydraulic motors on the dredge have a life span of ten to fifteen years. . . .
“38. . . . [T]he operation would quickly grind to a halt if the machinery and equipment at issue here were not present. The equipment at issue is used in the production process. Some of the items are small and inexpensive and some are larger and expensive. However, size and cost is not a determinative factor. . . . [T]he parts at issue are somehow in contact with the sand or are used with other parts which are in contact with the sand before it is in its final form.
“41. An exempt item would do its essential function on the processing machinery at some point before the final product is produced. In this case, the components are parts of the machinery used to produce the sand. Without these particular items on the processing machinery the process would grind to a halt. These items are then integral to the process of producing salable sand. The evidence shows that these items transport, convey, or handle the sand before it reaches its final stage.
“43. Therefore, the Board finds that the items of machinery and equipment and major components thereof are exempt from sales and use taxes under [K.S.A. 79-3606(kk).”
From these excerpts we can see that BOTA’s working definition for major components of machines that contribute to a manufacturing process disregards size and cost and focuses exclusively on indispensability. In BOTA's view, an exempt item would be “in tegral to the process,” would have an “essential function,” and, without it, “the operation would quickly grind to a halt.”
KDR contends that BOTA’s interpretation disregards the legislature’s intent to exempt only major components. According to KDR, “[t]he intent of the legislature was not to exempt every gasket, clamp, nut and bolt used to replace broken or worn out parts; only major components.” If the legislature’s intent had been to exempt every integral component, KDR’s argument continues, it would have used the phrase “important components” rather than “major components.” If the phrase “major components” is made up of ordinary words that should be given their ordinary meaning, as Alsop argues, there should be something major, as opposed to minor, about an exempt component.
KDR further argues that BOTA’s interpretation fails to take into consideration that when the legislature intended to exempt repair and replacement parts, it expressly identified them. For example, in K.S.A. 79-3606(g), the legislature exempted repair, modification, and replacement parts for aircraft used in interstate commerce. In addition, in 79-3606(t), repair and replacement parts for farm machinery and equipment are exempted. The implication KDR would have the court draw seems to be that the absence of the words “repair parts” or “replacement parts” in 79-3606(kk) excludes them from exemption under that subsection. This implication, however, would go far beyond KDR’s official position in excluding all repair/ replacement parts from exemption, regardless whether they are designated as capital expenditures for federal income tax purposes. In fact, in Information Guide 19-88-1, which KDR placed in the record, the following example is given of items which may qualify for exemption under 79-3606(kk): “repair and replacement parts that are necessary to and become part of manufacturing machinery and/or equipment if the cost of said repair and replacement parts are capitalized for federal income tax purposes.”
Alsop responds that in the absence of either a statutory or regulatory definition of “major component,” BOTA’s interpretation should prevail. Alsop asserts that KDR “has adopted extensive regulations defining and interpreting the various exemptions contained in K.S.A. 79-3606.” A check of the Kansas Administrative Regulations and the Kansas Register shows that regulations that have been promulgated for the purpose of filling in the framework of the Kansas Retailers’ Sales Tax Act, K.S.A. 79-3601 et seq., and the Kansas Compensating Tax Act, K.S.A. 79-3701 et seq., only touch on selected aspects of a comprehensive statutory scheme. See K.A.R. 92-19-la et seq. and K.A.R. 92-20-1 et seq. The implication Alsop seems to be fostering is that KDR had its chance but failed to make use of it, thus clearing the field for BOTA. No authority is provided for the proposition that BOTA’s interpretation governs in the absence of statutory definition or administrative regulation. In fact, there are no circumstances in which an administrative agency’s rulings on questions of law are conclusive. See Zivanovic, 261 Kan. 191, Syl. ¶ 2. In all cases, the court’s function is to interpret a statute to give it the effect intended by the legislature. 261 Kan. 191, Syl. ¶ 1. If the court were persuaded that BOTA’s interpretation reflects the legislature’s intention, it would carry the day. By the same token, if KDR had a different interpretation and the court were persuaded that it reflects the legislature’s intention, it would get the endorsement. That is precisely the analysis utilized by the Court of Appeals.
In the present case, KDR’s practice of treating “major components” as synonymous with capital expenditures for federal tax purposes appears to cany out the legislative intent. For federal tax purposes, the following classifications apply:
“Capital Expenditures. The deductibility of an expenditure as a business expense is based on the theory that such expenditure is properly part of the cost of operating the business for the year in which it was paid or incurred. If, however, an expenditure is paid or incurred to acquire an asset, the useful life of which is substantially longer than the taxable year, that expenditure is generally treated as a capital item and not as a currently deductible business expense.” 6 Mertens, Law of Federal Income Taxation § 25.01, p. 6.
Expenses that are deducted in the year incurred would not qualify as major components of manufacturing machinery or equipment for sales tax exemption. Capital expenditures that are depreciated over several years of a useful life would. There is an undeniable logic in KDR’s position.
The language of the statute is not esoteric or otherwise difficult to understand. “Major” is a familiar word, “component” is a familiar word, and there is nothing incongruous about their combination. What is not plain and clear, however, is the scope of “major.” It is a relative rather than a specific term. Without more definition, what is major to one person might be minor (or non-major) to another due to their differing standards of reference. Without more definition, the great gray area in the middle of the continuum from major to non-major would be open to individual interpretations. KDR’s definition cleanly separates major from non-major by reference to the federal tax code. As we have seen, in the context of business expenses, the categories of currently deductible expenses and capitalized expenditures correlate reasonably and logically with non-major and major. By using the categories to divide what otherwise would be a continuum, the indefinite scope of “major” may be specified without perverting the word’s plain meaning.
The Court of Appeals emphasized the practicality of KDR’s definition, stating that it “provides a bright line for business planning” and “takes the uncertainty out of business decisions.” 24 Kan. App. 2d at 531. The Court of Appeals also observed that having an easily applied rule potentially would “save on appeals, costs, attorney fees, penalties, and interest.” 24 Kan. App. 2d at 531. Because ease of application does not necessarily pertain to legislative intent, it is not a determinative factor in the interpretation of the statute. It is, however, a welcome bonus where, as here, ease of application is in harmony with the interpretation supported by other factors.
In determining legislative intent, we may consider the historical background of the enactment, the circumstances attending its passage, and the purpose to be accomplished. State v. Le, 260 Kan. 845, Syl. ¶ 3, 926 P.2d 638 (1996). Examination of the committee records for the 1988 amendments to 79-3606 that added the manufacturing exemptions revealed no clear-cut answer. An inference, though, reasonably may be drawn from the materials presented for the committee’s consideration that the concerns of the amendments’ backers were for large-scale renovations and additions to the State’s manufacturing capacity, not the routine upkeep of ex isting machinery. Among the proponents were representatives of the Kansas Industrial Developers Association, Boeing, and the Kansas Chamber of Commerce and Industry: They were united in supporting legislation that would exempt from sales tax the purchase of machinery and equipment in order to make the expense of expansion or modernization of a Kansas manufacturing plant competitive with the expense in neighboring states and in order to assist in attracting new manufacturing plants to this state.
Another indication that routine maintenance and repair parts were not intended by the legislature to be exempted is that 79-3606 contains some express provisions for repair and replacement parts, but not in the subsection for manufacturing machinery and equipment. In determining the legislative intent, the court considers all parts of an act together rather than considering provisions in isolation. Le, 260 Kan. at 847-48. As already noted, 79-3606(g) and (t) exempt certain repair and replacement parts for aircraft and farm machinery, thus demonstrating that the legislature knew how to expressly exempt such components when it wanted to. If subsections (g) and (t) are to be read consistently with subsection (kk)(2)(A), the term “major components” in the latter would not be construed to include components that are identified in the former as repair and replacement parts.
In determining the legislative intent, the court presumes that the legislature intended for a statute to be given a reasonable construction so as to avoid unreasonable or absurd results. 260 Kan. 845, Syl. ¶ 4. In the present case, KDR contends that BOTA’s interpretation of the exemption is unreasonable in that it reads the word “major” right out of the provision. It certainly may be said that BOTA’s interpretation does not give due force and appropriate meaning to both words of the phrase.
We conclude that the application of the rules of statutory construction to K.S.A. 79-3606(kk)(2)(A) leads to the conclusion that the legislature intended to exempt major, but not non-major, components of manufacturing machinery and equipment. KDR’s easily applied test of the scope of “major” implements the legislative intent and makes the statute workable for the taxpayer as well as the enforcement agency.
In its petition for review, Alsop also argued that KDR’s interpretation of the statute violates die Equal Protection Clauses of the Kansas and United States Constitutions because the test lacks a rational basis and unfairly discriminates between similarly situated taxpayers. Although Alsop seems to imply that the constitutional question arose for the first time as a result of the Court of Appeals’ decision, as required for review as a matter of right under Rule 8.03(e)(1) (1997 Kan. Ct. R. Annot. 52), that does not really seem to be the case. The Court of Appeals’ ruling was that a component of manufacturing machinery or equipment must be designated as a capital expenditure for federal income tax purposes in order to qualify for exemption under 79-3606(kk). 24 Kan. App. 2d 527, Syl. ¶ 2. If it could be said that a constitutional question arises as a result of that decision, it would not be arising then for the first time. One reason given by the hearing officer for finding that the equipment did not qualify for the exemption was diat the items were not capitalized. The Court of Appeals’ ruling was a reiteration of that part of the hearing officer’s decision. Thus, if the Court of Appeals’ decision gave rise to a constitutional issue, the hearing officer’s decision did too. However, Alsop’s appeal of the hearing officer’s decision to BOTA would not have afforded an opportunity to argue equal protection because BOTA is not vested with authority to determine constitutional questions. See Zarda v. State, 250 Kan. 364, Syl. ¶ 3, 826 P.2d 1365, cert. denied 504 U.S. 973 (1992). At the first opportunity to raise the constitutional issue before a court of law — in the Court of Appeals — Alsop was not the appellant. The constitutional theory of this case would appear to fit within at least one of the exceptions to the general rule that an appellate court will not consider issues not raised below. One exception would be that only a question of law arising on estáblished facts which could be finally determinative of the case is involved. Board of Sedgwick County Comm'rs v. Kiser Living Trust, 250 Kan. 84, Syl. ¶ 8, 825 P.2d 130 (1992). Thus, in light of this exception and the unusual procedural history in this case, we will consider the constitutional question raised by Alsop.
The court’s consideration of this issue is guided by the following principles stated in Peden v. Kansas Dept. of Revenue, 261 Kan. 239, 930 P.2d 1 (1996), cert. denied 137 L. Ed. 2d 1029 (1997):
“A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute.” Syl. ¶2.
“Equal protection is implicated when a statute treats ‘arguably indistinguishable’ classes of people differently. Single and married taxpayers are arguably indistinguishable in a legal sense, and the Kansas Income Tax Act treats single and married taxpayers differently in regard to the tax rates applicable to each group. Thus, the Kansas Income Tax Act implicates equal protection.” Syl. ¶ 3.
“The rational basis standard (sometimes referred to as the reasonable basis test) applies to laws which result in some economic inequality. Under this standard, a law is constitutional, despite some unequal classification of citizens, if the classification bears a reasonable relationship to a valid legislative objective.” Syl. ¶ 4.
“The reasonable basis test is violated only if the statutory classification rests on grounds wholly irrelevant to the achievement of the State’s legitimate objective. The state legislature is presumed to have acted within its constitutional power, even if the statute results in some inequality. Under the reasonable basis test, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.” Syl. ¶ 5.
“A plaintiff asserting the unconstitutionality of a statute under the rational basis standard has the burden to negate every conceivable basis which might support the classification.” Syl. ¶ 6.
“In taxation, even more than in other fields, legislatures possess the greatest freedom in classification.” Syl. ¶ 7.
Although Alsop contends that the statute is unconstitutional because it discriminates between similarly situated taxpayers, it does not really spell out how the discrimination operates. We presume that Alsop has in mind that taxpayers who capitalize and taxpayers who expense are similarly situated. This premise is questionable. As we have seen, capitalized items tend to be assets with useful lives considerably longer than the tax year. Alsop argues that “no consideration is given to whether a particular item is eligible to be capitalized or expensed.” The answer to this argument would seem to be that items that are capitalized are eligible to be capitalized and, when a taxpayer elects to expense items that are eligible to be capitalized, there must be an advantage to doing so. Because the designation would be a matter of election, the taxpayer presumably would, and certainly could, include the lack of sales tax exemption in the calculation. Thus, economical inequality would not be a result of the line between major and non-major components, or, at least, not a result unintended by the taxpayer. We agree with the Court of Appeals that this interpretation is rationally related to the legislative objective of reducing the impact of taxation on the production of goods. Thus, we conclude that K.S.A. 79-3606(kk) as interpreted by the Court of Appeals does not violate the Equal Protection Clauses of the Kansas and United States Constitutions.
One final argument is made by Alsop based upon the legislature’s recent amendment to 79-3606(kk). That amendment is contained in L. 1998, ch. 188, § 7, which was signed into law by Governor Graves on May 18, 1998, approximately 1 week prior to oral argument in this case. The amendment deletes “major” in 79-3606(kk)(2)(A) and specifically includes “all sales of repair and replacement parts and accessories” within the exemption defined in 79-3606(kk). Alsop contends that under the statute as amended, all the items at issue in this case are exempt. Alsop further contends that because the legislature left intact die original effective date exempting such sales on or after January 1, 1989, it is a clear indication the legislature intended the amendment to be retroactive and include all sales occurring after January 1,1989. We agree with the first contention but not the latter one.
In State v. Ford, 262 Kan. 206, 936 P.2d 255 (1997), defendant Ford argued that an amendment to the drug sentencing grid should be applied retroactively and required resentencing. Ford relied on the plain language of the statute to support retroactive application. The statute that was amended commenced: “For the purpose of sentencing, the following sentencing guidelines grid for drug crimes shall be applied in felony cases . . . committed on or after July 1, 1993.” K.S.A. 1996 Supp. 21-4705(a). Ford argued that by failing to change the date, the legislature intended the statute as amended to be applied retroactively.
This court stated the fundamental rule of statutory construction that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. An exception to the rule has been recognized where the statutory change is procedural or remedial in nature. We held the amendment was substantive. We also concluded the failure to change the original date was not a clear indication that the legislature intended it to act retroactively. We reasoned that the date
“establishes commission of the crime as the controlling event, and it establishes that'crimes committed on or after July 1,1993, will be punished according to the sentencing guidelines. Hence, if the legislature had changed the date in the language prefacing the drug grid to coincide with the effective date of the 1996 amendment, the resulting provision might have been construed to restrict application of the sentencing guidelines to crimes committed on or after July 1,1996. By not changing the date in K.S.A. 1996 Supp. 21-4705(a), the legislature maintained July 1,1993, as the date on or after which a crime had to be committed in order for the sentencing guidelines to govern punishment.” 262 Kan. at 209.
The basic rationale applied in Ford is controlling in the present case. The effective date of the amendment is July 1, 1998, and there is no clear indication by the legislature that it should be applied retroactively; thus, its application is prospective.
The judgment of the Court of Appeals reversing the Board of Tax Appeals is affirmed. The order of the Board of Tax Appeals is reversed. | [
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|
The opinion of the court was delivered by
Davis, J.:
The defendant, Jerry R. Chastain, was charged with involuntary manslaughter arising out of an automobile accident resulting in the death of Robert Glenn. The jury returned a verdict of guilty to the lesser included offense of driving while under the influence of alcohol. He appeals, claiming that the results of his breath test should have been suppressed and that the trial court abused its discretion in the sentence imposed. The State cross-appeals on two questions reserved: (1) the exclusion of horizontal gaze nystagmus testing and (2) instructions on involuntary manslaughter. We agree with the trial court’s resolutions of both questions reserved. We affirm the conviction and sentence.
The questions raised by this appeal are questions of law and do not involve disputed questions of facts surrounding the automobile accident. At trial, the defendant argued that Glenn caused his own death by proceeding into the intersection without stopping at a stop sign. The State claimed the defendant was operating his vehicle at a high rate of speed under the influence of alcohol, causing Glenn’s death. Those facts necessary for resolution of the legal issues involved are set forth in the discussion of the issues raised by the parties.
SUPPRESSION OF THE BREATH TEST
The defendant contends that the results of his breath test should have been suppressed because the arresting officer unreasonably prevented him from taldng a blood alcohol test he requested before and after the breath test.
Sergeant A.J. Wuthnow, after conducting certain field sobriety tests at the scene, took the defendant to the station and gave him a breath test. The defendant was unable to blow a sufficient amount of air into the machine. Thus, the test resulted in a deficient sample, although the machine registered a .210 concentration of alcohol. Prior to the administration of the breath test, the defendant requested a blood alcohol test. Wuthnow correctly explained that the defendant would have to take the breath test before being allowed to take the requested blood test. After completing the breath test, Wuthnow told the defendant that he would take him to the hospital to get his requested blood test. Wuthnow also told the defendant that the blood test would register higher. The defendant decided not to take the blood test and told Wuthnow to forget it.
Both parties suggest that the trial court did not resolve this issue. Two district judges handled pretrial motions in this case. The first judge to hear the suppression motion resolved against the defendant the question of whether proper procedures were utilized in the operation of the breath testing machine. During the proceeding, Wuthnow mentioned that he informed the defendant that the results of the blood test would be higher. Defense counsel indicated that he would raise the issue of unreasonable interference by a later motion.
The second district judge, dealing with another pretrial motion concerning the admissibility of the horizontal gaze nystagmus test, refused to hear additional evidence on the issue of unreasonable interference with the defendant’s requested blood test. After consulting with counsel for the State, the judge was convinced that the issue had been resolved in the prior suppression hearing. The defendant did not object and the matter was not resolved by the second district judge. However, we conclude that the essential facts concerning this issue are undisputed and that the record permits us to resolve the legal issue without remanding for further hearing.
The State argues that under K.S.A. 1994 Supp. 8-1001(f)(2), the failure of a person to provide an adequate breath sample constitutes a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs. Thus, according to the State, the defendant’s deficient sample constituted a refusal, with the result that no additional testing was allowed. We find no merit in the State’s contention. K.S.A. 1994 Supp. 8-1001(f)(l) does not by its terms cut off the right to an independent test provided for under K.S.A. 8-1004 which states:
“Without limiting or affecting the provisions of K.S.A. 8-1001 and amendments thereto, the person tested shall have a reasonable opportunity to have an additional test by a physician of the person’s own choosing. In case the officer refuses to permit such additional testing, the testing administered pursuant to K.S.A. 8-1001 and amendments thereto shall not be competent in evidence.”
While an accused who refuses the arresting officer’s test may not be eligible for independent testing under K.S.A. 8-1004, an accused who submits to the requested breath test but blows an inadequate sample retains his or her right under the provisions of K.S.A. 8-1004. Even though under the provisions of K.S.A. 1994 Supp. 8-1001(f)(2), the blowing of an inadequate sample may constitute a refusal unless the person shows that the failure was due to physical inability caused by a medical condition unrelated to any ingested alcohol or drugs, the opportunity for the accused to show such a medical condition for his or her inability may not be demonstrated until a later time. Thus, a person who provides an inadequate breath sample is still entitled to an independent test under the provisions of K.S.A. 8-1004.
Moreover, even a deficient sample, as in the present case, registers a blood alcohol level. K.S.A. 1994 Supp. 8-1013(f)(2) pro vides that readings obtained from a partial alcohol concentration test on a breath testing machine are admissible into evidence. See State v. Maze, 16 Kan. App. 2d 527, 533-34, 825 P.2d 1169 (1992). The purpose expressed in K.S.A. 8-1004 is to allow an accused an opportunity to secure independent testing in order to rebut the results of police testing, which may be used by the State upon trial. Thus, the provisions of K.S.A. 8-1004 apply to an accused who, rather than refusing a test, simply failed to provide an adequate breath sample. The defendant in this case provided a deficient sample which was introduced into evidence by the State. The defendant in this case retained his right to an independent test.
The Court of Appeals, in State v. George, 12 Kan. App. 2d 649, Syl. ¶ 4, 754 P.2d 460 (1988), correctly noted:
“While the State is not required to provide a DUI suspect with a free additional alcohol concentration test, it may not unreasonably interfere with the suspect’s reasonable attempts to secure an additional test, at his own expense, by a physician by his own choosing, for the purpose of attempting to secure evidence for his defense at or near the crucial time under consideration.”
The defendant contends Wuthnow’s statements that a blood test would show higher levels of alcohol wrongfully persuaded him from taking the blood test and resulted in an unreasonable interference by the State with his rights under the provisions of K.S.A. 8-1004.
The defendant relies upon Lau v. State, 896 P.2d 825 (Alaska App. 1995). Lau was arrested for suspicion of driving under the influence and a breath test indicated that his blood alcohol level was .201. However, Lau testified that when he was asked by officers whether he wanted to take an independent blood test, another officer with whom Lau was acquainted mouthed the word "no” and made a hand gesture. Lau stated he wanted an independent test but later conferred with the other officer who told him that the blood test would "nail” him. Lau, therefore, decided not to take the test. Under the totality of circumstances, the Alaska Court of Appeals reversed the trial court’s determination that no interference occurred. The Court of Appeals concluded that the officer’s conduct had prevented Lau from obtaining an independent test that he would otherwise have obtained, and the breath test should have been suppressed. 896 P.2d at 828-29.
A similar result was reached in People v. Underwood, 153 Mich. App. 598, 396 N.W.2d 443 (1986). Underwood demanded that an independent test be performed. However, the arresting officer “talked him out of” having the blood test saying that the test was “silly and stupid, that the test would show a higher blood alcohol level and that the defendant was going to go to jail anyway.” 153 Mich. App. at 600. The Michigan Court of Appeals determined that although Underwood eventually chose not to take the blood test, the officer’s conduct deprived him of his opportunity to take an independent test, and the court reversed Underwood’s conviction. 153 Mich. App. at 600.
In Hattaway v. State, 191 Ga. App. 812, 813, 383 S.E.2d 140 (1989), Hattaway testified that she asked specifically about a blood test but was told by officers that it was too time consuming and later told by the same officers that it was “ possibly a hassle’ ” and she instead decided to take a second breath test. The court noted that there was conflicting testimony concerning the circumstances surrounding the second test and that the interpretation was for the trial court to decide. 191 Ga. App. at 814. The court then stated that there was no evidence of actual coercion and the trial court did not err in denying Hattaway’s motion to suppress. 191 Ga. App. at 814.
A synthesis of the above cases demonstrates that officers may not unreasonably interfere with an acciised’s right to obtain additional testing and that in certain circumstances, comments by officers which persuade an accused not to take an additional test will constitute an unreasonable interference with that right. Whether such comments constitute coercion and rise to the level of unreasonable interference depends upon the facts and circumstances of each particular case.
The undisputed facts in this case demonstrate that the defendant was told by Wuthnow that he could obtain an additional test and that Wuthnow would transport him to obtain one. The record fails to demonstrate any coercion by Wuthnow who testified he was not trying to discourage the defendant from taking any further inde pendent tests by his statement that a blood test would show higher. As a matter of law, the statement of Wufhnow to the defendant that a blood test would show higher, without any further evidence of unreasonable interference or coercion, does not establish the defendant was deprived of his right for further testing under the provisions of K.S.A. 8-1004.
ABUSE OF DISCRETION IN SENTENCE
The trial court exercised its sound discretion in imposing a sentence less than the maximum authorized by law. The defendant’s contention of abuse is without merit. In State v. Vanderveen, 259 Kan. 836, 842-43, 915 P.2d 57 (1996), we said:
“It is the sentencing judge alone who determines the appropriate sentence to be imposed or other disposition of the 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, and the public safety. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court’s discretion and not a result of partiality, prejudice, oppression or corrupt motive.”
The record in this case clearly demonstrates no abuse of discretion.
QUESTIONS RESERVED
(1) Horizontal Gaze Nystagmus Testing
We turn now to the questions reserved by the State. The State first complains that the trial court erred in refusing to admit evidence of horizontal gaze nystagmus testing. In 1992, this court addressed the question of whether horizontal gaze nystagmus testing as scientific evidence had achieved general acceptance within the relevant scientific community and, thus, could be admitted without establishing the requisite foundation under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). State v. Witte, 251 Kan. 313, 836 P.2d 1110 (1992). Our thorough examination of this question at that time clearly demonstrated that horizontal gaze nystagmus testing had not achieved general acceptance within the relevant scientific community. We acknowledge that since Witte, four additional jurisdictions have concluded otherwise. See People v. Buening, 229 Ill. App. 3d 538, 545-46, 592 N.E.2d 1222 (1992); Schultz v. State, 106 Md. App. 145, 164-65, 664 A.2d 60 (1995); City of Fargo v. McLaughlin, 512 N.W.2d 700, 706 (N.D. 1994); State v. O’Key, 321 Or. 285, 316, 899 P.2d 663 (1995) (applying standard from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 [1993], and determining as part of that standard that horizontal gaze nystagmus testing is generally accepted within the relevant scientific community). However, we are not satisfied that such testing has achieved general acceptance within the relevant scientific community. Witte remains the law in this state.
The State contends that it presented sufficient evidence to establish the requisite scientific reliability. We have reviewed the testimony of Marcelline Bums, Ph.D., a doctor in psychology, who was called by the State for this purpose. While her credentials are impressive, we agree with the trial court’s ruling at the conclusion of Dr. Bums’ testimony:
“State v. Witte, raises a number of questions, none of which have been answered here today. There are a number of medical conditions which this witness has testified that she is not qualified to answer medical questions regarding, and these are issues that were specifically addressed in State v. Witte. And questions that were addressed, this appears to be a bootstrapped-type of testing procedure that has not been shown — there are a number of other matters that need to be addressed before the scientific reliability of this testing will be allowed.”
(2) Instructions on Causation in Involuntary Manslaughter
For its second question reserved, the State argues that neither involuntary manslaughter nor vehicular homicide contemplates the consideration of fault of the victim. This issue surfaced during jury deliberations when the jury asked the question whether the fault of each driver is to be considered when interpreting the phrase “unintentionally killed” in involuntary manslaughter, K.S.A. 21-3404, and vehicular homicide, K.S.A. 21-3405, as a lesser included offense of involuntary manslaughter.
The trial court responded by informing the jury that the fault or lack of fault of the decedent Glenn was a circumstance to be considered along with all other evidence to determine whether the defendant’s conduct was or was not the direct cause of Glenn’s death. The State contends that this inaccurate construction in formed the jurors that contributory negligence could be used as a defense.
The response of the trial court in this case is clearly the law in this state. In State v. Gordon, 219 Kan. 643, 653, 549 P.2d 886 (1976), we stated:
“While contributory negligence is no defense in a prosecution for vehicular homicide, it is a circumstance to be considered along with all other evidence to determine whether appellant’s conduct was or was not the proximate cause of decedents’ deaths. In some instances, a decedent’s contributory negligence may have been a substantial factor in his death and a superseding cause thereof; it may have intervened between a defendant’s conduct and the fatal result so as to be itself the proximate cause. [Citations omitted.]”
The same situation applies to involuntary manslaughter where an automobile is concerned. See State v. Betts, 214 Kan. 271, 278, 519 P.2d 655 (1974). In Betts, we held that contributory negligence is not a defense in a homicide case but noted that a jury could acquit if it found that the victim’s conduct was the sole cause of the death and that the defendant’s drinking had nothing to do with it.
The State argues that the rule in Gordon should not be followed because both K.S.A. 21-3404 and K.S.A. 21-3405 were amended in 1993, and language relating to causation deleted. Therefore, according to the State, causation is no longer a requirement.
At the time Gordon was decided, K.S.A. 21-3405 was essentially the same as it is now, except that it contained an additional section which stated:
“(2) This section shall be applicable only when the death of the injured person ensues within one (1) year as the proximate result of the operation of a vehicle in the manner described in subsection (1) of this section.” K.S.A. 21-3405 (Ensley 1988).
This section was deleted by the legislature in 1992 as part of S.B. 358. See L. 1992, ch. 298, § 7. The Comments of the Judicial Council indicate that the section was deleted because the 1-year limitation unnecessarily limits liability and is not found in other homicide statutes. See Comments of the Kansas Judicial Council to S.B. 358, p. 9. There appears to be no intention to actually change the proximate cause requirement. Indeed, the Comment to PIK Crim. 3d 56.07 still cites Gordon for the proposition that
“[c]ontributory negligence of the decedent is no defense. It is a circumstance to be considered along with all other evidence to determine whether the defendant’s conduct was or was not the direct cause of decedent’s death. The decedent’s negligence may have been such a substantial factor in his death as to be itself the cause.”
K.S.A. 21-3404 contained no proximate cause language prior to the 1992 amendment and was not significantly affected by S.B. 358. See L. 1992, ch. 298, § 6. Thus, the State’s argument that the 1992 amendment changed the causation requirement in this statute is without merit.
Further, the State’s argument neglects one important point. Although the proximate cause language was deleted, unintentionally or not, from K.S.A. 21-3404, both K.S.A. 21-3404 and K.S.A. 21-3405 still require that the conduct of the defendant cause the death of the victim. This is reflected in the PIK instructions for each offense, both of which inform the jury that the State is required to prove that the defendant unintentionally killed the victim. See PIK Crim. 3d 56.06 (involuntary manslaughter); PIK Crim. 3d 56.07 (vehicular homicide).
Affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
Joseph Flaherty and James Daniels appeal from a judgment of conviction on a charge of grand larceny.
The first question argued by Flaherty and Daniels is that the information does not state facts sufficient to charge the offense of grand larceny, under section 3448 of the General Statutes of 1915, nor to charge any public offense, nor to charge any violation of any law of the state of Kansas. This question was presented to the trial court by a motion to quash the information, by a motion for a new trial, and by a motion in arrest of judgment. The information, in substance, charges that in Wyandotte county, Kansas, on or about April 23, 1914, Joseph. Flaherty a,nd James Daniels, with others, who were named in the information,
“did unlawfully, wilfully, feloniously, wickedly, corruptly, jointly and evilly confederate and agree together between and among themselves to obtain the property of one George Roth, with intent to steal the same, . . . did wilfully, corruptly and designedly set up a pretended common gambling device, to-wit, a room . . . where bets are made upon the result of horse races, with intent ... to obtain the money . . . of . . . George Roth, and ... by means and by use of said fraud did feloniously, designedly, corruptly and wickedly persuade, decoy, inveigle and induce the said George Roth to make a wager of $5,350 in money . . . upon the result of a pretended horse race, thereby then and there obtaining possession of said $5,350 . . . and after . . . having obtained the said sum of money, they . . . did unlawfully, wilfully and feloniously make way with, secrete and steal the said sum of $5,350 . . ■. the property of . . . George Roth.”
To establish the proposition that the information does not charge an offense under section 3448, it is argued that the statute does not embrace every act which was larceny at the common law, and that it is not larceny to obtain possession of money by some trick, fraudulent device, artifice, or means, with the intention of stealing the same. This argument is not good. 17 R. C. L. 16 uses this language:
“Obtaining money under the pretense that it is to be bet on a race, and with the intent at the time to convert it to the bailee’s own use, the race being a mere sham to aid this purpose, is larceny.”
(See, also, Doss v. The People, 158 Ill. 660; State v. Dobbins, 152 Iowa, 632.)
Section 3448 of the General Statutes of 1915, in part, reads:
“Every person who shall be convicted of feloniously stealing, taking or, carrying away any money ... of the value of twenty dollars or more . . . belonging to another, shall be deemed guilty of grand larceny.”
The information alleges that Flaherty and Daniels did steal, make way with, and secrete $5,350 which was then the property of George Roth. These allegations,’ with those of time and place, are sufficient to charge an offense under section 3448 of the General.Statutes of 1915.
Flaherty and Daniels argue that there was no evidence showing that they were guilty of participating in the fraud of Henderson and Charter, two of the other defendants jointly charged in the information. This argument could be completely and effectively answered by quoting from the brief of Flaherty and Daniels, but the quotation would serve no good purpose and would make this opinion unnecessarily long.
The evidence showed that George Roth put up money to bet on a pretended horse race, and that it was the intention of the person who received the money to convert it to the use of himself and of his associates, two of whom were the defendants Flaherty and Daniels.
The facts disclosed in the present case are almost parallel with the facts stated in State v. Dobbins, 152 Iowa, 632.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The plaintiff, Marie Jewell, as administratrix of the estate of J. F. Jewell, deceased, filed in the probate court a claim for services against the estate of C. E. Jewell, deceased. The claim was allowed in the sum of $1,075, and assigned to the fifth class. The defendants appealed to the district court, where the case was tried before a jury, who rendered a verdict in plaintiff’s favor for $1,742.79. Upon a motion for a new trial the court, with the consent of the plaintiff, reduced the amount to $1,469 on the ground that the amount in excess of that sum was not warranted under the evidence, and the motion for a new trial was then denied. From the judgment in plaintiff’s favor, defendants appeal.
C. E. Jewell was the trustee of the C. W. Jewell estate, the Bodwell estate, and the Sardou estate, and he also had' property of his own, including rental property. C. E. Jewell lived in Topeka until July, 1909, when he went to California to live, and he placed the properties mentioned in charge of his brother, J. F. Jewell, a resident of Topeka, who was never a member of his family; and the latter continued in charge of them until about February, 1914. J. F. Jewell received his compensation for looking after the three trust estates, and the claim in suit is for compensation for taking care of the prop erty of C. E. Jewell, who died May 9, 1915. An administrator of his estate was appointed Juné 1, 1915, and this claim was presented July 14, 1916.
There is a contention that it was not the intention of the brothers that J. F. Jewell should be paid for looking after C. E. Jewell’s property. Both having died before the trial, the evidence as to their dealings is meager, and it is also very conflicting. In answer to special questions the jury found that a contract for the rendition of the services had been made; that there was no agreement or understanding that the services were to be gratuitously rendered, but that the understanding was that reasonable compensation was to be made within a reasonable time. There was testimony tending to show that J. F. Jewell collected rents as they accrued on the properties of his brother, also interest on his mortgages; that he made repairs on buildings of various kinds, such as^ painting, plumbing, plastering, and laying brick, and he also shoveled snow from roofs and mowed the lawns of residence properties. A witness testified that C. E. Jewell admitted that he owed his brother for services, the amount of which he did not know, but that he would look it up and pay for the services when he returned to Topeka. C. E. Jewell made a will in 1913, which was not probated, and in it he stated: “I direct my executrix ... to pay to my brother, J. F. Jewell; the sum of One Thousand Dollars in cash in full compensation for valuable services heretofore rendered by him for me and for which no compensation has been made,’’ etc.
Defendants contend that the verdict is based upon a finding that there was an express contract, and that there was no evidence to support a finding of that kind. The findings indicate that there was an express agreement between the parties that the services should be performed by J. F. Jewell, but that the value of the services'was not fixed.. While no witness testified as to a formal proposal and acceptance between the parties, enough wa’s shown to warrant the inference that C. E. Jewell employed his brother to attend to his affairs in his absence and had an understanding that reasonable compensation was to be paid for such services. One witness stated that C. E. Jewell admitted to him that he had hired his brother to do work for him, and, while the proof is not as complete and satisfactory as might be desired, it is deemed to be sufficient to uphold the finding of the jury. (Griffith v. Robertson, 73 Kan. 666, 85 Pac. 748.)
The defendants contend that the greater part of the plaintiff’s claim is barred by the statute of limitations, as most of the services upon which it is based were rendered more than three years prior to the presentation of the demand on July 14, 1916. There, was testimony of a custom among real-estate men collecting rents to make monthly settlements, taking out their commission and expenses of repairs, etc., and ■ remitting the. balance of the rentals to the owner. The jury found that such a custom existed as between strangers, but that no such custom was shown as between brothers. It has been held, that where one is employed by another, and the term of service and time of payment for the services are not fixed by an agreement, and the employee continues in the sendee without interruption or payment until the death of the employer, the employment may be deemed to be continuous, in the absence of a general custom or usage, and the statute of limitations will not begin to run against a claim for compensation until the services are ended. (Grisham, v. Lee, 61 Kan. 533, 60 Pac. 312.) While there appears to have been a custom among real-éstate dealers looking after rental properties to make monthly settlements, it appears that the services of J. F. Jewell were not confined to the collection of rents or to the kind of services ordinarily performed by real-estate agents. Some support is given to the theory of the defendants in the fact that J. F. Jewell, who had charge of three other estates, did settle monthly with the owners, in accordance with the custom stated. The employment, however, between the parties here was unusual and involved a peculiar relationship in which services of an exceptional character were performed. As was held in Schaffner v. Schaffner, 98 Kan. 167, 157 Pac. 402, the testimony did not show a usage fixing the time of payment for the kind of services rendered here and under the circumstances that existed between the parties, and we therefore hold that the statute did not begin to run until the services had ended.
The claim that the record shows prejudice of the jury cannot be upheld. On the motion for a new trial the court found that the evidence warranted a verdict of no more than $1,469, the plaintiff remitted the excess, and judgment for the smaller sum was rendered. It appears that the value of the services was fixed at $25 per month; and that there was no substantial dispute as to the time of service. The excess resulted from an error in the computation of the time. It is an error which did not affect the entire verdict and is one which may be and has been corrected by a remission of the excess. (Broguet v. Tripp, 36 Kan. 700, 14 Pac. 227; U. P. Rly. Co. v. Mitchell, 56 Kan. 324, 43 Pac. 244; Railroad Co. v. Richards, 58 Kan. 344, 49 Pac. 436.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff commenced this action to foreclose a mortgage given by defendant Eugene L. Bell on certain real property in Atchison county. A number of Bell’s code fendants filed cross petitions asking for the foreclosure of mortgages given by Bell on the real property, and one of his codefendants filed a cross petition asking for the foreclosure of a mechanic’s lien on that property. Defendants John J. Buchanan and Lincoln Buchanan filed a cross petition asking that Bell be compelled to specifically perform a contract for the sale of the property to John J. Buchanan and W. H. Buchanan. Issue was joined between John J. Buchanan and Lincoln Buchanan on one side and Bell on the other side. Judgment was rendered on all the mortgages and on the mechanic’s lien in favor of their holders and against Bell. Judgment was likewise rendered directing Bell to convey the real property to John J. Buchanan and Lincoln Buchanan on their paying $2,600 into court, and directing that the $2,600 be applied in the discharge of the judgments against Bell. Judgment was further rendered that if the $2,600 were not paid into court, the real property should be sold, and the proceeds should be applied in the discharge of the judgments against Bell. He appeals from the judgment requiring specific performance of the contract with John J. Buchanan and W. H. Buchanan.
The contract in question reads as follows:
“This agreement made and entered into this 8th day of February, 1911, by and between Eugene L. Bell and Nannie Bell, his wife, of the first part, and John J. Buchanan and Henry Buchanan of the second part, Witnesseth: That first parties agree to sell and second parties agree to buy the following real property situated in Atchison County, Kansas: The S. W. % of the S. W. Vi of Sec. 10-7-21, also the N. E. % of the N. E. Yt of Sec. 9-7-21; also the E. Yz of the S. E. Vi of the N. E. *4 of Sec. 9-7-21 excepting about one acre in cemetery, to be more particularly described in deed; said land to be paid for in the sum of $4,626.75 cash, as soon as first party presents abstract to said land showing good and merchantable title in Bell, and on the execution of an ordinary warranty deed to second parties; second parties to have sufficient time in which to pass upon said abstract. It is further agreed, that first parties shall have the wheat now growing on said land and the right to harvest same, shall cut, stack and thresh said wheat and deliver to second parties one-third of said wheat threshed at the machine, first parties to stand all expense of harvesting and threshing. And it is also agreed that should first parties elect to sell the following 40 acres now occupied by them, to-wit: The N. W. Vi of the Si W. Vi of Section 10-7-21, in Atchison County, Kansas, ,the second parties shall have the right to purchase said last mentioned 40 at the- agreed price of $65 an acre. It is further agreed that if said parties elect to sell said S. W. Vi of the S. W. Vt of Sec. 10-7-21 at any time in the future, the first parties shall have the right to purchase same at the agreed price of $65 an acre, provided first parties will also buy the balance of the above described land at the agreed price of $40 an acre. It is agreed that second parties shall and do át the delivery of this agreement put up the sum of $100 to be forfeited in case they fail or refuse to carry out this agreement on their part.”
Lincoln Buchanan has succeeded to the rights of W. H. Buchanan.
It is argued that the contract is void for the reason that it is against public policy, in that it violates the rule against perpetuities, and is an unreasonable restraint upon alienation. Barton v. Thaw, 246 Pa. St. 348, is closely analogous to the case now under consideration. In the syllabus, the court there said:
“A bill in equity to remove a cloud upon title alleged that plaintiffs were the owners of certain land; that their predecessors in title had granted the coal underlying such land, by a deed containing a covenant that in case the grantee, his heirs or assigns ‘should at any future time whatsoever desire to purchase any of said land in fee simple, then the said parties of the first part for themselves, their heirs or assigns hereby covenant and agree to sell the same to the said parties of the second part, their heirs or assigns at a price not exceeding $100 per acre’; that defendants were the successors in title of the grantees of such deed; that the said covenant was void but was a cloud on the plaintiffs’ title, and prayed that such covenant be cancelled. The court after hearing on bill and answer decided that the covenant was but an' option to purchase, which, under its terms, could be exercised at any time in the future, and was void, as being in violation of the rule against perpetuities and awarded the relief prayed for. Held, no error.” (syl. ¶ 5.)
The rule against perpetuities is a part of the law of this state. (Lasnier v. Martin, 102 Kan. 551, 171 Pac. 645.)
By the contract, if Bell should elect to sell the property, he must first offer it to the Buchanans. The contract, if enforcable, gave to the Buchanans the right to purchase the property at some future, indefinite, unknown time; and Bell can be compelled to convey the property to the Buchanans at such time for the price named. Bell cannot sell the property to any person without first offering it to those holding under the contract. When sold under the contract, the property must be-sold at $65 an acre, although at that time it may be worth $1,000 an acre. Bell does not have an absolute, uncontrolled right to sell the property at any time that he may see fit. It follows that the Buchanans and those holding under them. either as assignees or heirs, would hold a right to obtain an interest in the property running for an indefinite period of time. That right would be held in violation of the rule against perpetuities. (Winsor v. Mills, 157 Mass. 362; Starcher Bros. v. Jeff Duty, 61 W. Va. 373; Woodall v. Bruen, 76 W. Va. 193; Gray, The Rule Against Perpetuities, 3d ed., § 330.)
All the authorities do not hold in accordance with this rule. (See article on “Options and the Rule Against Perpetuities” by John R. Rood, 23 Case and Comment, 835.) But the rule announced appears to be supported by better reasoning, and is more consistent with sound public policy.
Bell presents other questions, but, in view of the conclusion reached, it is not necessary to discuss them.
The judgment is modified by reversing that part of it requiring Bell to make a conveyance of the land to the Buchanans, and by directing that judgment be entered in favor of-Bell in the controversy between him and the Buchanans. To satisfy the judgments rendered in favor of the mortgagees and the holder of the mechanic’s lien, the sale of the property is directed as ordered by the judgment of the trial court. | [
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The opinion of the court was delivered by
Porter, J.:
This is an appeal from an order sustaining a der murrer to plaintiff’s evidence.
The action is against the Rock Oil and Gas Company, a partnership composed of W. M. Ramsdale, S. T. Jocelyn and L. C. Wright. The plaintiff joined as' a defendant one J. A. Davis. The petition set out two causes of action; the first, to recover $1,500 which it is claimed the partnership agreed to pay for, the partial performance of a contract to drill an oil well; and the second, to recover damages claimed to be due because plaintiff was induced by defendants to sell an outfit of well-drilling tools at an inadequate price when he was “unconscious of his acts and incapable of transacting any business whatsoever for the reason that he had no knowledge of any acts he performed.” This condition, it is alleged, was caused by intoxicating liquor given him by defendant Davis, or because of the influence of certain smoke produced by defendants and which the plaintiff inhaled while talking with them and which rendered him unconscious of his acts. No summons was served on any of the defendants except L. C. Wright, and none of the other defendants appeared. Wright filed an answer alleging an agreement between the plaintiff and the partnership whereby, in consideration of the .payment of certain wages due workmen for services performed in drilling the well to the depth of 1,000 feet, the contract for drilling the well further was terminated, and all demands against the partnership were canceled; and further alleging that the Rock Oil and Gas Company purchased from the plaintiff the well-drilling tools at the price of $2,150, which was paid to him and which he had retained, and that he had not rescinded or offered to rescind the sale. The reply was a general denial.
In his testimony plaintiff admitted that he had joined with the defendant, J. A. Davis, in the execution of a written contract, consisting of a bill of sale for the drilling outfit and tools, belonging to himself, and which contained a provision that in consideration of the payment of the wages due workmen in drilling the well to its then depth, the defendants were relieved from further liability to him. It is conceded that the amount due for labor was $858 and was paid by the gas company. The evidence showed that after he had discovered that he had been paid $2,150 in place of the amount he now claims to have been due, and after he had talked to some of the defendants about his dissatisfaction with the amount received, he withdrew the money from the bank; and it was stated on the trial by his counsel that he was not suing for a rescission. He offered no evidence to establish the market value of the tools. His evidence showed that he was accustomed to drinking whisky and smoking and in the habit of visiting bootlegging establishments. He had taken two drinks of whisky in the forenoon of the day the transaction involved took place, and he did this at the invitation of J. A. Davis, who held the original contract for drilling the well and who had an interest in the transaction. He went with Mr. Davis to the office of Mr. Jocelyn, who represented the oil and gas company. His testimony is that one of the defendants smoked a cigar while conversing with him in the office, where they were discussing the sale of the tools; that in the afternoon when the sale of the tools was arranged he left the office with the understanding that an agreement was to be drawn up which he was to sign later. He went to a hotel with J. A. Davis, where at the latter’s suggestion he took another drink of whisky. Shortly thereafter they went back to the law office, where he signed the bill of sale, then went with Mr. Jocelyn to the bank where he deposited the check for $2,150 given in payment for the tools, and'received a bank book crediting him with the amount, less $10 in cash, which the bank paid him. There was no evidence of any kind that any drug had been applied to what he drank, although this was alleged in his petition, and it is not claimed by him that any misrepresentation was made by any person as to the contents of the bill of sale. In his brief it is said that he was not under the influence of liquor or drugs when he left the office in the afternoon at the time the bill of sale was being drawn, and he admits that he took but one drink of whisky while out with Mr: Davis. We think the trial court was right in holding that' there 'was nothing substantial shown in'plaintiff’s testimony upon which to base a claim that he was rendered unconscious' or unable to know and understand the paper he signed. He does not .testify that the defendants agreed to pay him $8,500, but says that he never agreed to accept any other sum. In the absence of any testimony showing that the tools were worth more than the $2,150 paid for them and of any evidence, showing a contract to pay him more than actually was paid, except his understanding of what he wanted to receive for them, we think the trial court was right in sustaining the demurrer.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
R. A. Lower brought this action against H. H. Shorthill and wife an'd B. L. Light, to recover on twelve promissory notes of $50 each, and one for $500.
Light filed an amended cross petition in the action, alleging that when the Shorthills executed the notes to him in October, 1913, to secure them they executed to him a chattel mortgage in the. sum of $1,100 on certain blacksmith machinery find tools; that they also executed another note for $400, together with a second mortgage on the same property; “that thereafter and within a very few days, this answering defendant (Light) sold and transferred to this plaintiff the said notes amounting to $1,100.00” (no allegation being made that the mortgage securing them was also transferred) ; that he also left the $400 note and mortgage with plaintiff for safe-keeping and for the purpose of having the mortgage recorded; that the plaintiff, who was Light’s business adviser, promised to have the mortgage' recorded and later advised him he had done so, but that he willfully withheld it from record for the purpose of preventing Light’s lien upon the property from appearing of record, although he had full knowledge of such lien; and that in response to Light’s demands plaintiff failed to return the note and mortgage until after the commencement of this action. It was further alleged that on June 1, 1914, plaintiff procured from the Shorthills a bill of sale of the mortgaged property to himself in payment and satisfaction of the $1,100 worth of notes; that thereafter plaintiff, either by virtue of having the bill of sale or else without any authority of law, sold the mortgaged property in his own name to one having no knowledge of Light’s lien; and that by reason of plaintiff’s disposition of this property, which was then reasonably worth $1,500, Light’s note had become worthless. Judgment was asked for the amount of the note with interest from the date of its execution.
Plaintiff’s reply contained a general denial, an admission of the execution of the notes and mortgages referred to in the cross petition, and an averment that he took and sold the “property covered by said mortgage” and applied the proceeds thereof upon the mortgage debt.
The court, among other instructions, directed the jury to return a verdict in Light’s favor for such sum as they should find the value of the property to have been when it was taken by plaintiff, but in no case for more than $400 with interest up to the time the property was sold by plaintiff. Two special findings were made to the effect that the property was taken by plaintiff on June 1, 1914, at which time it was worth $1,250. From the verdict and judgment in Light’s favor plaintiff appeals.
Under the evidence in the case'the court was not warranted in directing a verdict in favor of the defendant. It appears that Light was indebted to the Narka bank, of which plaintiff was the cashier and m'anaging officer, for about $1,400, and turned over to him the Shorthill notes amounting to $1,100 and the mortgage executed to secure the same, to apply on his debt. Light also left with the plaintiff the $400 note and a second mortgage on the same property securing it, as collateral for another small loan. The first mortgage was recorded, but the second was not placed of record. Both mortgages were left with the plaintiff, and it is claimed that he agreed to have the $400 mortgage recorded, but that instead of doing so he fraudulently withheld it from record to enable him to dispose of the mortgaged property free from lien of that mortgage. It appears that plaintiff obtained possession of the property in June, 1914, and that afterwards the Shorthills executed a bill of sale of the same to him. Testimony was given to the effect that the property was worth between twelve and fourteen hundred dollars at the time plaintiff took possession of it. In November, 1914, he sold the property to one Pulek, who it appears had no knowledge of the defendant’s $400 mortgage. The evidence is conflicting as to whether or not the plaintiff agreed to record that mortgage. Plaintiff testified that no such agreement was made, and further that the defendant never provided the fee for recording it. It is conceded that if plaintiff violated an agreement to have defendant’s mortgage placed on record, and after gaining possession of the mortgaged property he sold it for less that its value, and when it was of greater value than the amount of his claim, the defendant would be entitled to recover. There is a contention by the defendant that the property was not taken by plaintiff on the first chattel mortgage, but that he took it under a bill of sale as an ordinary purchaser, in such a way as to release his mortgage lien, and that he did this with actual notice of the defendant’s claim. The court excluded testimony tending to show that the property was taken under the mortgage and that the sale was made in good faith for its actual'value — an amount insufficient to satisfy the mortgage debt held by plaintiff. These rulings appear to have been made on the ground that the proposed testimony was not within the issues.
It is contended by the defendant, and the court appears to have proceeded on the theory, that the reply was a mere general denial and did not contain an averment that the property was taken under the first mortgage and the proceeds of the sale applied on the mortgage debt. The averments of the reply on this subject are not full, but they appear to be sufficient to raise the issue and justify the admission of the excluded testimony. In his cross petition defendant set forth the transactions as to the execution of the notes by the Shorthills in the amount- of $1,100, as well as the mortgage to secure the same, and also the execution of the $400 note and the second chattel mortgage given to secure that note. He then alleged that within a few days after the execution of the notes so secured they were sold and transferred by the defendant to the plaintiff. The reply of the plaintiff was a general denial,—
“save and except the execution and delivery from the Shorthills to the defendant, Light, of the notes and mortgages referred to and set up in said amended cross petition, and save and except the further fact that this plaintiff did take, accept and receive the goods and property covered by said mortgage from the maker thereof under said mortgage for the purpose of applying the proceeds to be derived from the sale thereof as part payment upon the debt secured by the mortgage thereon held by this plaintiff, and that having so taken and accepted the same, this plaintiff did sell said goods and property and applied the proceeds derived therefrom in part payment of said debt.”
While these averments are not as full and specific as they should have been, they plainly refer to the mortgage debt transferred to plaintiff and with reasonable clearness state that the property was taken by the plaintiff under the mortgage securing that debt. Instead of setting out the notes and mortgages at length, he adopted the allegations of the defendant in his cross petition as to the notes and mortgages by reference and, having so identified them, alleged that the property was received by him under the mortgage, that it was sold 'under that authority 'and the proceeds applied to the mortgage debt. In the absence of a motion to make the reply more definite and certain, it must be deemed sufficient, and under it the plaintiff was entitled to prove, if he could, that the sale of the property was made in good faith for its actual value and for a sum less than the mortgage debt.
Besides, it is not at all clear that the excluded proof was not admissible under the general denial. The defendant, had alleged that plaintiff had taken possession of the property without authority of law, and plaintiff was entitled to controvert this essential averment which the defendant was bound to establish, and therefore entitled to prove that he held a valid-mortgage upon the property, took possession of it by virtue of the mortgage and made a bona fide sale of it, honestly applying the proceeds upon the mortgage debt. It has been held that under a general denial a party may offer any evidence which controverts the facts denied, and which the other was bound to establish. (Davis v. McCrocklin, 34 Kan. 218, 8 Pac. 196; Railway Co. v. Brickell, 73 Kan. 274, 85 Pac. 297.)
There’is some confusion in the case as to whether plaintiff was acting for himself or for the bank in taking an assignment of the notes, and also when he took possession of the property. The defendant in his cross petition specifically alleged that he sold and transferred the notes to the plaintiff himself. The notes were indorsed to the plaintiff and thereby the legal title at least was vested in him. Although the beneficial interest may have been in the bank, plaintiff was warranted in acting for the bank and in maintaining an action in his own name. (Manley v. Park, 68 Kan. 400, 75 Pac. 557; Graham v. Troth, 69 Kan. 861, 77 Pac. 92.)
It is contended that the taking of the bill of sale practically concluded the plaintiff as to any claim he might have made under the mortgage. The taking of the bill of sale does not preclude a showing that possession was in fact taken under-the chattel mortgage. It may have been, as plaintiff claimed and testified, that he relied on the mortgage and only procured the signing of the bill of sale as a matter of precaution to avoid any question as to the title of the property or the regularity of the steps taken under the chattel mortgage. There is testimony to show that the possession was taken a considerable time before the bill of sale was executed. At any rate, the evidence on this subject was such as to make a question of fact whether or not possession was taken by virtue of the mortgage, or merely as an ordinary purchaser by which the mortgage debt and lien were discharged. Some of the facts brought out in the case are open to different inferences, and it is the province of the jury to determine what inferences may reasonably be drawn, and also to settle the conflicts in the testimony. Where there is substantial testimony upon which the jury might have found in favor of the plaintiff, the court may not direct a verdict for the defendant.
Another thing about which there is contention is the absence of allegations and evidence as to the formal assignment to the plaintiff of the first mortgage. The notes which the mortgage was given to secure were, as we have seen, formally indorsed and transferred to the plaintiff, and this indorsement had the effect of transferring the title to the mortgage as well. (Kurtz v. Sponable, 6 Kan. 395; Ketcham v. Commission Co., 57 Kan. 771, 48 Pac. 29; Bohart v. Buckingham, 62 Kan. 658, 64 Pac. 627.)
It follows that the judgment must be reversed and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment against him for $1,000 in an action for slander. The petition set out two Causes of action, in each of which the plaintiff alleged that the defendant had used language toward her in the presence of others charging her with larceny. Judgment for $3,000 was asked on each cause of action. There was evi dence to prove that the defendant had said to the plaintiff in the presence of others, “you stole $200 of my money,” and “you stole my hay and you stole my corn, and I defy you to touch a straw of my hay.”
Complaint is made that the court refused to submit two special questions. in which the defendant requested that the jury be required to state what the items of actual damages were in each cause of action. Only general damages were .alleged, and there was no evidence to prove any item of damage. The questions requested could not be answered from the evidence. It was for the jury to determine the amount of damages sustained by the plaintiff. (Miles v. Harrington, 8 Kan. 425; Roniger v. McIntosh, 91 Kan. 368, 370, 137 Pac. 982; Good v. Higgins, 99 Kan. 315, 320, 161 Pac. 573; Kunz v. Allen, 102 Kan. 883, 172 Pac. 532.) There was no prejudicial error in refusing to submit the questions.
Another matter urged by the defendant is that the court erred in giving the following instructions:
“If you find for the plaintiff as provided in the next preceding instruction, then the next question for your determination is the amount of damages to be allowed. When words imputing a crime are intentionally and falsely spoken of another, the law not only presumes that the words were spoken nialiciously, but that the person of whom the words were spoken was thereby damaged and in such case the jury should allow actual damages, which are such as are recoverable at law from a wrongdoer as a matter of right as compensation for the actual damage sustained by him by reason of the wrong. The term actual damage is synonomous with the term compensatory damages.
“In order for the jury to allow actual .damages, it is not necessary that any witness testify to the amount of damage done or the sum necessary to compensate the injured person, but in this class of cases, it is for the jury to determine-what amount of damages, if any, will compensate the injured person, limited, of course, by the amount claimed in the petition.”
These instructions did not incorrectly state the law applicable to the evidence. (Roniger v. McIntosh, 91 Kan. 368, 370, 137 Pac. 982.)
Another matter is urged concerning the instructions. Evidence had been introduced concerning the claimed rights of the parties on the premises where the slanderous words were spoken, and concerning why the plaintiff was then at that place. On this question the court instructed the jury as follows:
“Such evidence could only bear upon the question of actual malice and since no punitive damages are claimed, such evidence should be disregarded by you, and is hereby withdrawn from your consideration. For the purposes of this case, it makes no difference why the plaintiff and her companions were at the place where it is claimed the slanderous words were spoken and the fact, if it be a fact, that plaintiff and her associates were there without right would be no defense or excuse to the defendant for speaking the alleged slanderous words if in fact he did utter them.”
The defendant argues that under the instruction the jury was unable to determine what evidence was and what was not affected thereby, and argues that the jury should consider the manner in which the slanderous statement was made, together with all the attending circumstances. The reasons for withdrawing the evidence, as given by the court, are a sufficient answer to the defendant’s argument, and nothing more need be said. ^
The last proposition argued by the defendant is that the verdict of the jury was so excessive as to show that it was .prompted by passion and prejudice. The veydict was for $1,700. On the motion for a new trial, the court found “that the jury were not influenced by passion or prejudice, or other improper influence, in reaching their verdict”; but the amount of the, verdict did not meet with the approval of the court, and the plaintiff was therefore required to remit $700 of the verdict, or the verdict would be set aside. It 'was not érror for the court to reduce the amount of the verdict without granting a new trial. (U. P. Rly. Co. v. Mitchell, 56 Kan. 324, 43 Pac. 244; Railway Co. v. Frazier, 66 Kan. 422, 71 Pac. 831; Van Vrankin v. Railway Co., 84 Kan. 287, 292, 114 Pac. 202; Malet v. Haney, 98 Kan. 20, 157 Pac. 386.) The practice followed by the trial court has been followed in this court. (Truman v. Railroad Co., 98 Kan. 761, 161 Pac. 587.)
Unless it appears that the trial court was in error concerning the manner in which the jury arrived at its verdict, this court cannot interfere with the conclusion reached by that court. Such error does not appear.,
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff, an employee of the defendant, was injured by falling down a' baggage elevator shaft in the defendant’s union railway depot at Wichita, and brought this action for damages. Defendant’s answer, among other .matters, pleaded a settlement and release, and the payment of $342.50 to plaintiff in full satisfaction thereof. Plaintiff’s reply alleged that defendant’s physician,, who had the sole care and treatment of plaintiff for his injuries, prior to and about the time of the settlement said to plaintiff:
“You are now able to go to work; the company will give you some light work to start out with; your injuries are not permanent, and you are now ready to go to work.”
Plaintiff’s reply further alleged that defendant’s baggage foreman urged plaintiff to go back to work:
“You . . . can . . . commence work at any time . . . before you go to work you will have to sign a release, as the company will not take you back until you sign a release ... I have full authority from the company to employ and discharge all employees in the baggage department, and I say to you, that as soon as you sign a release to the company, I will put you to work and give you as light a job as I can to start with.”
Plaintiff’s reply further alleged that the statements of defendant’s physician and the baggage foreman were intentionally made for the purpose of securing the plaintiff’s signature to the release; that the statements made to plaintiff by the physician were false and untrue; that at the time of the making of such statements, the plaintiff was not able to work on the job at the union station; that he had not recovered from the injuries; that his injuries were not temporary, but were permanent; that the plaintiff had full confidence in the veracity of each statement; that plaintiff would not have signed said release or purported release if he had known that he was permanently injured; and that the said purported release is void and not binding on this plaintiff.
The release recited that—
“No promises . . . have been made to me or in my behalf . . . to execute it, and that before signing it i fully informed myself of its contents ■ and executed it with full knowledge thereof ... I have read the foregoing release and fully understand it.”
The defendant’s demurrer to plaintiff’s evidence was overruled, and the cause was submitted to a jury, which rendered a verdict for plaintiff, and answered some special questions:
“2. Do you find that the plaintiff was permanently injured? Ans. No.
“3. Did Dr. Walker state to the plaintiff, before plaintiff signed the release introduced in evidence, that he had no permanent injuries? Ans. ■ Yes.
“4. If you answer the foregoing question in the affirmative, do you find that the plaintiff signed the release introduced in evidence relying upon the statements of Dr. V?alker? Ans. Yes.
“5. Did the defendant’s agent, Shreave, before plaintiff signed the release introduced in evidence, agree with the plaintiff to give him employment after he would sign the release introduced in evidence? Ans. Yes.
“6. If you answer the foregoing question in the affirmative, do you find from the evidence that the plaintiff signed' such release relying upon the statements of the defendant’s agent, Shreave? Ans. Yes. „
“3. (a) Do you find that before plaintiff signed the release which has been introduced in evidence, the witness, W. F. Lilleston [attorney for defendant], told plaintiff, in substance, that the question of his future employment could not be considered' in effecting a settlement and executing the release? Ans. Yes.
“4. (a) Do you find that before plaintiff signed the release, which has been introduced in evidence, he read the same over? Ans. Yes.
“6. (a) If you find that the release introduced in evidence was procured by fraud, please state in what such fraud consisted? Ans. In the promise of Bert. Shreave to put plaintiff back to work and failed to do so.
“7. (a) If you find that the release introduced in evidence was procured by fraud, please state what person or persons practiced such fraud. Ans. Bert Shreave.”
One of defendant’s chief contentions on appeal is that defendant was entitled to judgment on the jury’s special findings. If the latter contention is correct, the other errors assigned will need no consideration.
The fraud relied upon to vitiate the settlement, release and satisfaction was that alleged to have been practiced upon plaintiff: by the company’s physician and by its baggage fore-, man. As to the physician, the jury’s special findings, Nos. 2, 6(a) and 7(a), exonerate him. ■ The finding that the fraud was that of the baggage foreman exculpates the physician. (Williams v. Railway Co., 100 Kan. 336, syl. ¶ 1,164 Pac. 260.) Notwithstanding the fraud of the foreman — in the promise of the latter “to put the plaintiff back to work and failed to do so” — the recitals of the release that no promises had been made to him to induce him to sign it, that he had informed himself and understood it before he did sign it, and the corresponding special finding of the jury, No. 3(a), are a complete-refutation of plaintiff’s plea of fraud; and the special findings, Nos. 6(a) and 7(a), are insufficient as a matter of law to establish fraud or to vitiate the settlement in view of the other findings of the jury. (Railway Co. v. Vanordstrand, 67 Kan. 386, syl. ¶¶ 2, 3, 73 Pac. 113; Railway Co. v. Coltrane, 80 Kan. 317, 102 Pac. 835; Railway Co. v. Roth, 80 Kan. 752, 104 Pac. 849; Hickman v. Richardson, 92 Kan. 716, 720, 142 Pac. 964; Adams v. Railway Co., 93 Kan. 475, syl. ¶ 2, 144 Pac. 999; Spinden v. Railway Co., 95 Kan. 474, syl. ¶ 2, 148 Pac. 747; Pullin v. Railway Co., 96 Kan. 165, syl. ¶ 2, 150 Pac. 604; Case v. Yoakum, 99 Kan. 253, 256, 161 Pac. 642.)
The written contract of settlement was found by the jury to have been knowingly and understandingly made by the plaintiff without fraud by the physician. The jury found that defendant’s attorney reminded the plaintiff that the question of his future employment could not be considered in the making of the settlement and release, and the proof was undisputed and indisputable that plaintiff understood that matter when the contract of settlement was effected. These controlling facts preclude all consideration of the oral understanding between the baggage foreman and the plaintiff as to his future employment. Judgment for defendant on the special findings must be ordered, and the judgment will be reversed with instructions to that effect. | [
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The opinion of the court was delivered by
Mason, J.:
A. J. Meyers bought ten shares of stock of the Acme Iron Company for $1,000. He brought an action against its president, J. T. Woolsey, on the ground that the purchase had been induced by his false and fraudulent representations. The plaintiff recovered a judgment, and the defendant appeals.
The defendant maintains that there was no evidence whatever of the making of any actionable false representations. We regard the contention as not well taken. A device which was handled by the company had not been patented at the time of the purchase of the stock, although an application was then pending, and a patent was afterwards granted. There was evidence sufficient to sustain a finding that the defendant represented that the patent had already been issued. It is true that a part of the testimony of the plaintiff seemed to indicate that he knew the application for the patent was still pending, but it is possible that he was referring to some other device, and in any event it was the province of the jury to resolve any conflict and determine the net effect of the evidence. (Acker v. Norman, 72 Kan. 586, 84 Pac. 531.) The fact that the patent was afterwards granted may have had some bearing upon the extent of the injury suffered, but could not prevent the false representation from amounting to a fraud.
The evidence also justified a finding that the defendant had represented that the stock of the compahy was fully paid up in cash, whereas it was issued for patents pending, legal services, and good will. The matter was obviously material. The point is made that the representation charged in the petition was, not that the stock had been paid up in cash, but merely that it was fully paid .up. In alleging the falsity of the representation, however, the pleading said that the stock had not been paid up in cash or in any other valuable thing, but was subscribed in good will, legal services and pending patents. This seems sufficient to present the issue, but, if not, the petition may be regarded as amended.
The evidence further warranted a finding that a false representation had been made that 147 of the machines handled by the company had been sold. The defendant claims that the making of such a representation is negatived by the fact that the jury returned affirmative answers to questions submitted by him, asking whether he had represented to the plaintiff that two machines had been installed, and that if these proved satisfactory the purchaser intended using 147 of them. A construction of these answers which is reasonable and consistent with the verdict, and which we are therefore required to adopt if necessary to uphold the judgment, is that the jury meant that after the stock had been purchased the defendant, in justification or explanation of what he had previously said, told the plaintiff that two machines had been placed and that 147 would be if these proved satisfactory.
We regard it as unnecessary to comment'on any of the six other representations alleged, as we deem those already mentioned sufficient to uphold the verdict.
The defendant urges that no evidence was introduced showing what the stock would have been worth if the representations made had been true, and that, therefore, no recovery can be had, because the measure of damages is the difference between that amount and the true value of the property. “The price paid for the property should be taken as strong but not conclusive evidence of what its value would have been if as represented.” (12 R. C. L. 453.)
The court instructed that the burden of proof was on the plaintiff to establish the allegations of his petition by a preponderance of the evidence, and that by this was meant the evidence which was most satisfactory and convincing to the minds of the jury, and which the jury should accept and believe as being worthy of the greatest consideration and weight, in the light of all the circumstances disclosed. An instruction was also given reading :
“Fraud and deceit are never presumed, but must be proved like any other fact in the case; namely, by a preponderance of the evidence. It is not necessary that the evidence be direct and positive, but fraud may be proved by circumstantial evidence.”
The defendant made a request for the following instruction, and complains of its refusal:
“You are instructed that you cannot find the defendant falsely or fraudulently made representations to A. J. Meyers from mere conjecture or mere inference. Fraud must be clearly proven and the burden of proof is on the plaintiff to establish that fact.”
Even on the issue of fraud the omission to give any instruction relative to the burden of proof other than the usual one to the effect that a recovery should be based on a perponderance of the evidence is ordinarily not regarded as material error (Hockett v. Earl, 89 Kan. 733, 133 Pac. 852), although under exceptional circumstances it has been held to require a reversal. (Fritts v. Reidel, 101 Kan. 68, 165 Pac. 671.) We think the instruction here requested was open to criticism as adapted to give the impression that circumstantial evidence was not a sufficient basis for a finding of fraud, and that the statement in the charge of the court that fraud is not presumed, but must be proved like any other fact in the case, is not such a minimizing of the degree of proof as to justify setting aside the verdict.
An instruction is criticised because seeming to allow a recovery on any one of the representations alleged, some of which it is contended were mere matters of opinion and, considered alone, would not sustain a recovery. We think it reasonably clear that the verdict was based upon the jury’s resolving the substantial controversy between the parties in favor of the plaintiff.
An allowance was made to the plaintiff on account of services he had performed and a room he had furnished, after purchasing the stock. It is contended that there was no evidence of these matters having been affected by the representations complained of. We think the evidence justified submitting the issue to the jury.
The plaintiff’s wife was originally joined as a party with him and on that account was permitted to testify. Afterwards a dismissal was ordered as to her, and this evidence was stricken out. The defendant complains that he suffered prejudice thereby, because the jury may have been affected by her testimony. The tria'I court was obviously convinced that no prejudice resulted, and its conclusion is final on such a matter.
Complaint is made of the refusal to allow the defendant to introduce in evidence a letter written by the plaintiff to a third person giving reasons for his severing connection with the defendant, in which he made no reference to the fraud alleged to have been practiced upon him. Assuming that it was admissible, we think it not of sufficient importance to justify a reversal on account of its rejection.
A new trial was asked on the ground of newly discovered evidence. We think the ruling of the trial court supportable both with regard to diligence and the character of testimony. Other assignments of error are not thought to require separate mention ; for the most part they turn upon the effect of the evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
P. H. Harkness, who lives more than three miles from the schoolhouse in his district, brought mandamus in the district court against the members of the school board, seeking to require them to provide transportation for his nine-year-old daughter to and from school. A motion to .quash the alternative writ for failure to state sufficient grounds was sustained, and the plaintiff appeals. ■
The statute relied upon, so far as here important, reads:
“The district board of any school district may provide for the comfortable transportation,, in a safe-and enclosed conveyance or conveyances, properly heated, of pupils of said school districts who live two or more miles, by the usually traveled road, from the school attended; and said district board shall provide such transportation for pupils who live three or more miles, by the usually traveled road, from the school attended; or, in lieu thereof, said board shall allow, as compensation for the conveyance of pupils to and from the school to the parent or guardian of any pupils living three or more miles from the school attended, a sum not less than fifteen cents per day; provided further, that where the pupils of two or more families are conveyed by the same conveyance the parents or guardian of each family shall be entitled to such compensation as provided for by this act; and shall allow to the parent or guardian of any pupils living five or more miles from the school attended the sum of twenty-five cents per day, for as many days in each year as the school shall be in session; provided, that no such compensation shall be allowed unless the pupils are actually conveyed to and from school. The district board shall have authority to make such rules and regulations as may be necessary for carrying out the provisioris of this act.” (Laws 1917, eh. 277, § 1.)
The plaintiff contends that this statute makes it obligatory upon the board to provide transportation for his daughter. In support of this contention he argues that inasmuch as in a prior statute (Gen. Stat. 1915, § 8936) relating to the transportation of pupils living two and a half miles or more from the school the word “may” is used, the use of the word “shall” in a similar clause of the new act (which repeals the earlier one) indicates a purpose to take from the board all discretion in the matter. We think, however, that the language of the present law clearly indicates that, while the school board is required to make some special provision for pupils living more than three miles away, it has the option to do so by furnishing transportation itself, or by making a money allowance for the benefit of such pupils. If it is true, as is suggested, that this interpretation does not preserve the preference given by an earlier statute (Gen. Stat. 1915, § 8935) to pupils living three miles away, 'over those living between two and three miles from the school, the answer must be that the new act repeals that statute also, and undertakes to provide a comprehensive plan for handling the entire matter.
The plaintiff also urges that the board is guilty of discriminating against his daughter, because it is furnishing transportation for all the other pupils in the district who live more than three miles from the school, and Fogg v. Board of Education, 76 N. H. 296, is cited in support of this view. That case recognizes the obligation on the part of the school authorities, by the express terms of the statute, to “give to all the scholars of the district as nearly equal advantages as may be practicable,” and holds that in the circumstances there presented it was incumbent upon them to provide a conveyance for a pupil who would otherwise have been prevented from attending school. The decision is not in point here, because no question of giving aid of a different character was involved. It must be presumed, in the absence of allegations to the contrary, that the school board was ready to make a fair money allowance as authorized by the statute.' The fact that some of the pupils were taken to and from the school in a conveyance furnished by the board does not necessarily show that an injustice was done in refusing the same privilege to the plaintiff’s daughter. The conditions may have been such that the district could readily provide for the transportation of the other children in a body, while to have included the plaintiff’s daughter would have involved a disproportionate inconvenience. In such a situation we think the board was authorized in its discretion to use different methods of aiding children to reach the school. No facts are alleged showing an unfair discrimination.
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff sued the defendant bank for damages for negligence in failing properly to look after a collection, and failing to recover, he appeals, assigning various errors, but urging the one point, that the defendant’s explanation is not sufficient to excuse its negligence.
October 27, 1914, the plaintiff shipped from Stroud, Okla., to W. H. Leniton, at Lowe, Kan., a carload of cottonseed meal, the accepted order reciting:
“Price is made P. O. B. cars, Lowe, Kans. Prepay freight. Banking instructions. 1st Natl. Bk. Sedan, Kansas. Terms, sight draft with Bill of Lading attached.”
On the following day the company, .through the First National Bank of Sedan, Kan., drew on Leniton for the contract price, $491, the draft being in the following words:
Feeders Supply Co., No. 7156.
Kansas City, Mo., Oct. 28, T4
At sight pay to the order of Interstate National Bank, Four Hundred Ninety one no/ioo Dollars.
Bill lading attached for car 12460 S. F. C. -S. and to remain with draft until paid.
Value received and charge to account of To W. H. Leniton,
Sedan, Kan. Collect through First National Bank.
Feeders Supply Co.,
By C. S. Nathan, Cashier.
The Interstate National Bank of Kansas City forwarded the draft with a letter containing the following:
“Hold no item, unless we so instruct; but protest and return at once all not promptly honored. Deliver ddcuments only on payments of drafts attached.”
The draft was held by the defendant bank, without présentation or demand for payment, until December 14, 1914, when it was returned to the forwarding bank with the following indorsement :
“Our information is that this shipment has been received by Leniton. Car been fed to his cattle. Mr. Leniton died two weeks ago. First Nat’l Bank.”
The answer pleaded, among other things, that Leniton lived twelve miles from Sedan, his post-office address being Wau neta, Route 1; that it ordinarily took from four to six days, and sometimes longer, to send a letter from Sedan and get a reply thereto; that during the latter part of October and all of November, Leniton was sick; that he died on the 30th of November, having been taken to a hospital at Winfield on the 4th of that month; that upon receipt of the draft the officers of the bank notified Leniton thereof, and were advised that he was ill and as soon as he was able to do so he would come to Sedan and pay it or arrange for its payment; that the officers of the bank soon after this learned that Leniton had gone to the hospital, “and for that reason held said draft for some days pending the recovery of Mr. Leniton, or his directions from someone to look after the matter of taking up and paying said draft.”
It was further alleged that the shipment was made in such manner that the consignee could and did take the cottonseed meal as soon as it arrived at its destination, regardless of the acceptance or the payment of the draft; that it arrived at Lowe on the 3lst of October and was received and unloaded by Leniton prior to the day on which the defendant should have presented the draft; and that defendant could not have presented the draft' in the regular course of business and made reply in time for the plaintiff to prevent the consignee from taking the meal and using it.
Although the. meal was consigned to the seller, and not to the buyer, it appears that, by some person not disclosed and in some manner not explained, the meal was unloaded and fed' to the consignee’s cattle. The railroad agent did not even know whether the meal was left long enough for a demurrage charge to arise, but' he testified that if the car had stood there any length of time there should have been a demurrage charge, and from his testimony it appears that the car was set out October 31.
One peculiar feature of the case is that no bill of lading was attached to the draft, and if one was ever issued, it does not appear what became of it. There was attached a document, referred to often in the testimony as a bill of lading, which on its face appears to be a memorandum “for use in connection with the standard form of straight bill of lading,” approved^ by the interstate commerce commission, and it is an acknowl edgment that a bill of lading had been issued, and that it is not the original bill of lading nor a copy or duplicate, but is intended solely for filing or record. This instrument, however, recites that there was received, subject to classifications and tariffs in effect on the day of the receipt by the carrier of the property described in the original bill of lading, a carload of cottonseed meal consigned to the Feeders Supply Company, Lowe, Kan., and that $68 to apply on prepayment of the charges had been received. This document accompanied the draft when it was sent to the defendant bank. There was also testimony fairly tending to show that the forwarding bank had sent out a number of tracers béfore the draft was returned. It also appeared that it was the .custom of the defendant bank to notify the company .to whom drafts were sent for collection; that a printed form was used giving a description,, which was usually either mailed out or word sent by telephone; and that Mr. Leniton had a telephone at his house with Sedan connections.
It is argued that the defendant was not negligent, and even if it were, such negligence did not cause any damage to the plaintiff. It is contended that, as the plaintiff and the bank undertook to send a sight draft against the shipment protected' by the usual bill of lading, and so instructed the defendant in the draft itself, and sent along a. piece of paper purporting to-be the bill of lading,- it was not negligence to assume without careful investigation that it was such and that it would have to be obtained by Leniton or by any one in order to get possession of - a shipment, “and the defendant had the further right to assume that being protected in this manner there was.no special hurry required on its part in the matter of presenting the draft for collection or in reporting to the sender.” Theré was evidence that other shipments were not remitted for until the lapse of some forty days, or that the delay in this instance was only reasonable. It is further urged that the direct cause of the plaintiff’s damage was the fact that the shipment was made on such terms and under such instructions that Leniton could and did unload the' meal without first accounting to any one for the purchase price; in other'words, that the plaintiff did not attach the original bill of lading’ as it represented to the defendant that it had done, and thaf this failure was con- tributary negligence on its part, rendering it possible for Leniton to get the shipment as soon as it reached its destination, without power on the part ofi defendant to prevent it; that it was even possible for Leniton to get the meal before the draft was received by the defendant bank; and that the fact that the instructions accompanying the draft contained a notation that it was to be handled without protest was “an additional slackening of-the responsibility ordinarily imposed in sending a draft to a bank for collection.” >
It was admitted that from the 80th day of October until the 14th day of December, 1914, the defendant bank held a chattel mortgage on six he'ad of native cows and other property described in a mortgage from Leniton to the bank. The plaintiff offered to show that the meal was fed to this stock, but the offer was refused.
Whatever the effect of attaching to the draft another instrument than the original bill of lading, the bank could not help understanding that the draft was sent to it for collection; that the feed had been shipped; and that the collection would be due on its delivery, which would naturally be prompt upon its arrival. It certainly owed the plaintiff the duty of using reasonable diligence to carry out the agency it had been called upon to exercise, and it is difficult to see on what theory the practical inaction during all those weeks, until some time after the death of Leniton, can be justified.
“The collecting bank must act in- good faith, exercise reasonable skill in performing its duties, and use due care and diligence in making prompt presentment, demand, and protest, in giving notice of dishonor and in taking whatever steps are necessary to protect the customers’ rights or it will be liable for loss. It must forward the check for presentment by a direct route and not indirectly by circulation through branch banks or otherwise.” (7 C. J., 610.)
“When commercial paper is delivered to a banker for collection, the banker becomes the customer’s agent to make collection, and he undertakes the duty of an agent for all purposes of making the collection. As in case of other collecting agents, the bank is required to use ordinary or reasonable diligence and care in making the collection; and if from its failure to do so, loss results to its customer it is liable to him in damages therefor.” (3-R. C. L. 610.)
It is claimed that, even if negligent, the defendant bank did not cause the plaintiff any loss which it would not otherwise have incurred. It appears, however, that Leniton was a man who handled cattle, having mortgaged a number of head to the bank; that the consignment of the meal in question was somewhat promptly taken from the railroad station and fed to Leniton’s stock; that after an illness of some weeks, and a stay in the hospital at Winfield, Leniton passed away; and that after-wards there was collected upon tins claim from his estate only $127.82, leaving a balance at the time of the trial of $433 unpaid. It is hardly possible that had the plaintiff been handling this collection for itself it would' have permitted all these things to happen before requiring payment, and-it is unreasonable to believe that the delay of the defendant bank did not occasion the loss, or a considerable portion thereof.
The undisputed facts render the defendant liable as a matter of law, and the judgment is reversed with directions to grant a new trial for the one purpose of ascertaining the extent of such liability. | [
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The opinion of the court was delivered by
West, J.:
The plaintiff, a resident of Miami county, brought this suit to enjoin the assessment of certain notes and mortgages owned by him, but. kept in Kansas City, Mo. The proceeds of a business sold by the plaintiff in Wyoming were forwarded to the Maxwell Investment Company at Kansas City, Mo., and later a power of attorney was executed, by the terms of which the company was authorized—
“To engage for me in my behalf in the investment of all funds in its hands or that may come into its hands belonging to me in loaning the same on notes secured by first real estate mortgages in any state where it is engaged in business or by purchasing notes secured by first real estate mortgages, with full authority to take such notes and mortgages and assign same to me and to keep and hold all such notes and mortgages and to ask, demand, sue for, collect and receipt for all moneys due to me on any note now or hereafter so held with full power and authority to release any and all mortgages of record now or hereafter held'when the same shall have been paid, and to reinvest in its discretion any and all collections in manner above designated, and I authorize and empower my agent and attorney, The Maxwell Investment Company, to hold and keep for my use all of the securities that may be taken for the reinvestment of funds as paid in.”
The terms of this authority were followed, notes and mortgages were purchased, some of the mortgages being on Oklahoma lands, some in Texas, and some in Arkansas, but probably none in Kansas. The general course of business was for the Maxwell Investment Company to select certain mortgages written to itself, charge them up to the plaintiff’s account, place them in a package in a box in a safety deposit vault, the notes never going out of the office of the investment company. When they were paid off the company released them, the proceeds being reinvested for the plaintiff, the entire business being transacted by the company. It also appears that, in some way satisfactory to the comptroller, these securities were regarded as assessed to the Maxwell Investment Company, as a part of its capital and surplus.
The trial court found that the securities attempted -to be assessed in Miami county had a business situs in the state of Missouri, arid were not properly assessable in Kansas.
The defendants appeal, and contend that the rule should apply that personal property follows the domicile of the owner. It is conceded that this is the general rule in regard to intangible personal property, the situs of which has not been fixed by the legislature, but the plaintiff contends that the facts in this case present an exception and bring the securities in controversy under the rule that such property is assessable elsewhere when it has there acquired a business situs. Ordinary tangible personal property may easily be located and used in another state so as to effect and localize a business situs. Notes and mortgages are sufficiently practical and tangible to become the subject of exclusively local business use, and that such property inay acquire such situs is recognized by the courts an'd by the .state tax commission. Counsel for the plaintiff quote a letter sent out by the commission under the date of December, 1915, containing the following language:
“Intangibles, however, may acquire what is known as a business situs. In other words, if a nonresident of Kansas which sent into the state moneys for investment, and these moneys were administered by an agent, or an attorney in fact, who exercised all the powers of ownership, such as making the investments upon his own election, collections of interest and principal, satisfaction of mortgages of record, and all such powers which the owner has the right to exercise, merely sending to the real owner in another state income from time to time, then the Commission has held that such property has a business situs in the state, and is taxable in the state. Contrariwise, property of the kind sent to another State under exactly similar conditions would be nontaxable in Kansas, although the owner lived here, but the business must be transacted in a bona fide manner.”
Counsel also quote from the revised instructions sent out by the tax commission the following:
“An investment business may be so conducted as to give rise to a right of taxation of the property involved in the state where the business is transacted. Such situs is commonly called a ‘business situs.’ This means simply that if a person in one state sends into another state moneys to be handled by an agent or an attorney in fact, who has and exercises all the powers of investment which the owner has and would exercise were he in the state where the business is being transacted— that is to say, who invests the money, takes and records mortgages, collects the notes when due, releases record obligations and reinvests money, realized from the collection of such obligations, and handles the business exactly as the owner would handle it, transmitting to the owner occasionally amounts of income as agreed upon — then such property would have a business situs in the state where the business is being transacted and would be there taxable.”
■In Johnson County v. Hewitt, 76 Kan. 816, 93 Pac. 181, it was said:
“Notes, mortgages, tax-sale certificates and the like might be brought into the state for something more than a temporary purpose, be devoted to some business use here and thus become incorporated with the property of this state for revenue purposes. Such situs has aptly been termed a ‘business situs.’ ” ■ (p. 822.)
Also,
“It is not necessary to determine precisely what facts will be sufficient in every case to establish an independent business situs for notes and mortgages, but generally the element of separation from the domicile of the owner and fairly permanent attachment to some foreign locality should appear, together with some business use of them, or some power of managing, controlling or dealing with them in a business way.” (p. 823.)
The same rule is found announced in many decisions.
“•If we look to the decisions of other states, we find the frequent ruling that when an indebtedness has taken a concrete form and become evidenced by note, bill, mortgage or- other written Instrument, and that written instrument evidencing the indebtedness is left within the state in the hands of an agent of the nonresident owner, to be by him used for the purposes of collection and deposit or reinvestment within the state, its taxable situs is in the state.” (New Orleans v. Stempel, 175 U. S. 309, 317.)
“A credit which cannot be regarded as situated in a place merely because the debtor resides there, must usually be considered as having its situs where it is owned, at the domicile of the creditor. The creditor, however, may give it a business situs elsewhere; as where he places it in the hands of an agent for collection or renewal with a view of reloaning the money and keeping it invested as a permanent business.” (Bristol v. Washington County, 177 U. S. 133, 141.)
(See, also, Board of Assessors v. Comptoir National, 191 U. S. 388; Union Transit Co. v. Kentucky, 199 U. S. 194; Buck v. Beach, 206 U. S. 392; Buck et al., Trustees, v. Miller, Treasurer of Tippecanoe County, 147 Ind. 586; Golgart v. The People, ex rel., 106 Ill. 25; Metzenbaugh v. The People, 194 Ill. 108; People, ex rel. Jefferson, v. Smith et al., 88 N. Y. 576; Catlin v. Hull, 21 Vt. 152; 37 Cyc. 803; 27 A. & E. Encycl. of L., 2d ed., 656.)
Under these authorities, it is beyond question that if the plaintiff lived in Kansas City, Mo., and dealt with the fund in question in the same way through an agency at Paola his securities would be taxable here. The controlling principle is no less plain because the geography of the situation is reversed. The precise case before us (and our decision goes no further) is one in which the plaintiff, a resident of this state, took the proceeds of a business owned by him in another state and placed them as a sort of revolving fund with an agency in a third state with full power to invest in notes and mortgages, record, release, collect and reinvest, the securities being at all times in the possession of the agency, the profits only being remitted to the plaintiff. This course of dealing for a .number of years has given such securities a business situs for the purposes of taxation in the state where the agency is located.
Counsel for the defendants inquires whether, on the facts here shown,
“a resident of Kansas can escape his obligations to the municipal bodies . . . or can by this method a citizen of this state shirk his obligations as a taxpayer, and thereby impose a greater obligation on the other citizens living around him, an unjust and an unequal obligation.”
In Fisher v. Comm’rs of Rush Co., 19 Kan. 414, Chief Justice Horton said:
“It may by some be considered unjust and unequal that a citizen of this state should be allowed to possess notes and debts in another state secured by mortgages, and not pay taxes upon them here. . . . Taxation and protection are correlative terms. Protection to that portion of property not taken or absorbed by the tax, is the consideration or compensation for all legitimate taxation. Without this protection, or some benefit to be returned therefor, taxation would be but another name for spoliation, or confiscation.” (p. 416).
It was also said that—
“The power of taxation, however vast in its character, and searching in its extent, is necessarily limited to subjects within the jurisdiction of the state.” (p. 416.)
In deciding Kingman Co. v. Leonard, 57 Kan. 531, 46 Pac. 960, it was declared that—
“The ground on which all taxation is justified is, that it is a burden necessarily imposed by the sovereignty in order to enable it to perform its duty in protecting persons and property. . . . We think it now quite well settled that choses in action belonging to a nonresident, in the, hands of a managing agent within the state, are taxable." (p. 534.)
In Mecartney v. Caskey, 66 Kan. 412, 71 Pac. 832, in speaking of another kind of property, it was said:
“An owner may separate his certificates from himself, attach them to some locality apart from his residence, and employ them there in such manner as to effect a permanent submission of them to the latter jurisdiction.” (p. 414.)
The result reached by the trial court was in line with these decisions and expressions, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
An information in the name of W. P. Montgomery, as assistant attorney-general of Sedgwick county, charging the maintenance of a nuisance under the prohibitory liquor law, was filed in the district court of that county. It charged that liquors and other property were used in maintaining such nuisance, and asked the seizure thereof. In accordance with the statute (Gen. Stat. 1915, § 5527) a warrant was issued directing the seizure of such property, as well .as the arrest of the persons charged with violating the law. Three persons were arrested, and a quantity of liquor and an.automobile were taken. The case came on for hearing (in the second division) under the statute (§ 5528) upon the accusation against the property which had been seized. H. W. Queen, one of the persons arrested, objected to the admission of any evidence on the part of the state on the ground that the information was not signed by the prosecuting attorney. This motion was sustained. Thé assistant attorney-general asked leave to amend the information by attaching his signature. The court took the request under advisement, and it has never been ruled on. On the first day of a subsequent term, the criminal docket having been transferred to the first division, the case was called, and no response being made on the part of the state was dismissed for want of prosecution, and the property was ordered to be held for ten days and then returned to Queen. Within that time this appeal was instituted.
The information contained a blank for the signature of the assistant attorney-general, which was not filled. An affidavit to the truth of the information, which immediately followed, was signed and sworn to by him. The statute requires an information to be subscribed by the prosecuting attorney and to be verified by his oath or by that of some other person. (Gen. Stat. 1915, § 7976.) There is no express requirement that the oath of verification shall be signed, and under a similar statute that has been held to be unnecessary. (State v. Hicks, 178 Mo. 433.) We regard the attaching of the signature of the prosecuting attorney to the affidavit as a substantial compliance with the requirement that the information shall be subscribed by him. The purpose of his signing the document, which purports to be his act, is obviously to authenticate it as such. This purpose is fully accomplished by his signature to the affidavit attesting its truth. There is no occasion for two signatures, and the affidavit may be regarded as essentially a part of the information, which is literally “subscribed” by the prosecuting officer.
The appeal is contested by the defendant Queen, who relies largely upon an early decision setting aside a conviction based upon a document to which the signature of the county attorney was not attached until after the trial had commenced. (Jackson v. The State, 4 Kan. 150.) There, however, the document in question was a mere complaint or affidavit of an individual, which did not purport to emanate from an officer, and it was for that reason that the court held it to be insufficient, refusing to coiisider the propriety of permitting it to be signed after the trial had commenced on the ground that no change in its nature would be thereby effected. Since the judgment was rendered in the present case it has been specifically held that an omission to attach the signature of the prosecuting attorney to an otherwise sufficient information may be corrected during the trial. (The State v. McCullough, 101 Kan. 52, 165 Pac. 644.)
The question determined in the present case was suggested, but not decided, in Mentor v. People, 30 Mich. 91. A quite similar question, arising under a mechanics’ lien statute, was differently decided in Mayes v. Ruffners, 8 W. Va. 384, but we do not find the reasoning convincing. The state suggests that the point was involved, although not discussed, in The State v. Spencer, 43 Kan. 114, 23 Pac. 159, because the information there upheld bore no signature of the county attorney excepting that attached to the affidavit. The copy of the information shown in the report indicates that to be the case, but the original record shows an additional signature.
While the order disposing of the case is described as,a dismissal for want of prosecution, the assistant attorney-general can hardly be regarded as haying been in default so long as he had been denied the right to introduce evidence because of the , omission of his signature, and no ruling had been made upon his application for leave to attach it. Without the granting of that permission there was obviously nothing further that he could do. The order appears to have been an inadvertence growing out of the transfer from one division to the other, but it was a final disposition of the case, which left open to review the decision sustaining the objection to the introduction of evidence. That decision being held to have been erroneous, a reversal of the judgment of dismissal necessarily follows.
The state complains of the order to return the property to Queen, on the ground that he had filed no answer.- The statute requires the filing of an answer by any claimant (Gén. Stat. 1915, § 5528), but the setting aside of the dismissal would in any event require the vacation of the order disposing of the property.
Queen contends that an automobile does not belong to the class of property the seizure of which is authorized by the statute, citing One Cadillac Automobile v. State, 172 Pac. 62 (Okla. 1918). The act there interpreted differs from that of Kansas, an ordinance based upon which was involved in Allison v. Hern, 102 Kan. 48, 169 Pac. 187. However, as the district court did not pass upon the right of the officer to take possession of the automobile, that'matter is not before us for review.
A claimant of storage charges against the automobile has filed an application in this court to be allowed to intervene herein. As the validity of his claim is' not one to be determined here in the first instance, the application must be denied, any proper claim upon his part being a matter for the consideration of the district court.
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
Mason, J.:
In 1914 J. L. Howard brought an action to foreclose a real-estate mortgage given by A. C. Tourbier, making I. O. Pickering a party, he having become the owner of the fee. Judgment of foreclosure was rendered, which was affirmed on appeal. (Howard v. Tourbier, 98 Kan. 624, 160 Pac. 1144.) In the opinion in that "case, which was handed down July 8, 1916, it was said that a receiver of the property, who had been appointed before the sheriff’s sale, should have been discharged after the sale unless his retention had been shown to be necessary in order to prevent waste. It was specifically stated, however, that the error in denying the motion to discharge the receiver would not justify a reversal, but that the judgment would be modified by directing that the costs and expenses of the receivership from the time 'of sale should be charged to the plaintiff, and that the defendant Pickering should be given the income of the property from the time of the sale (June 7, 1915) to the expiration of the period of redemption (December 7, 1916). On March 10, 1917, Pickering began an action against Howard for the rents and profits between the dates just named.' On May 25, 1917, Howard filed a motion asking that proceedings therein be 'stayed until the final disposition of the foreclosure case, because all the matters presented in the new action were involved in the earlier one. On June 9, 1917, the receiver was discharged, and his report showing the expenditure of $65.68 for repairs was approved, ah allowance of $25.00 was made for his services, and the remaining sum in his hands ($182.2¡2) was directed to be paid to the clerk for the benefit of the holder of the equity of redemption. This payment was made, and the amount was received by the appellant, August 2, 1917. On July 7, 1917, the motion for a stay filed in the later case was sustained, and a judgment was rendered to that effect, reciting that all matters in controversy therein had been fully and finally adjudicated in the foreclosure action. Pickering appeals from that judgment and also from the orders in the earlier case discharging the receiver and making the allowances for repairs and services already ¿tated.
The question whether the court erred in making the orders settling the receivership will be first considered. The appellant complains because no notice was given him of thé hearing of the motion to discharge the receiver. No prejudice resulted from the want of notice, for he was given a hearing upon a motion to set aside the rulings that had been made, in which opportunity was given for presenting objections to them.- The complaints of the allowances made to the receiver seem to be based on the theory that “there was no authorized receiver in said cause after June 7, 1915.” This court, in its prior decision, determined that the receiver ought not to haye been continued in possession of the property after the sheriff’s sale, except upon a showing that this was necessary to prevent waste; but it concluded not to disturb the possession of the receiver, which could in. any event continue for less than six months longer, or to require a further showing as to waste. Inasmuch as jurisdiction had existed to continue the receivership in force if it were necessary to prevent waste, it was thought that this was probably in the mind of the trial court at the time, and that the ends of justice would be best served by allowing the receiver to hold the property, accounting to the appellant for its income. No compensation was allowed the receiver for any services performed after the sheriff’s sale. We think it must be assumed, in the absence of a showing to the contrary, that the repairs for which allowance was made were necessary for the reasonable maintenance of the property. We regard the appeal in the receivership ^matter as not well taken.
The appellant argues that in the second case his petition stated a c'ausie of action, and that he Was entitled to a judgment thereon because the defendant was in default for an answer or other pleading. The substance of the claim set out in his petition is that he was entitled to the possession of the property from the date of the sheriff’s sale until the expiration of the period of redemption; thaUhe had been wrong-' fully deprived of such possession by the receiver; and that for the loss he had so suffered Howard was liable, presumably on account of his having caused the appointment of the receiver. It may be that a more orderly procedure would have been for Howard to have filed an answer setting up the pend-ency of the receivership matter, and alleging that any lawful claims of Pickering would be there adjusted; but the form by which a right result is reached is not very material. The motion for a stay was sufficient to challenge the attention of the court to the fact that the basis for the second action was the steps that had been taken in the first one. It was determined in the foreclosure case by the decision of this court that the receiver should not be removed or dispossessed. That was an adjudication that the possession of the receiver during the period of redemption was legal, although it might originally have been irregular, and that Pickering’s only remaining right with respect to the use or rents and profits of the property up to the expiration of that period was to look to the receiver for its net income. That being the situation, the second action was clearly not maintainable, and the appellant suffers no substantial injury on account of the disposition that was made of it.
Both judgments are affirmed. | [
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The opinion of the court was delivered by
WHIST, J.:
The defendant appeals from an order sustaining a demurrer to his answer, and from the judgment entered against him for $100 damages and $50 attorney’s fee, in an action to cancel a gas lease. The Doughertys, in 1903, made a gas and oil lease to J. H. Butler for 20 years, which gave full rights to explore for gas and other mineral, to erect sufficient equipment to take care of any product, to lay a pipe line or remove the product by any reasonable method. It provided that gas would be furnished free of charge at well for residence located upon the land, for domestic use for three stoves and ten lights when gas should be developed on the land. Butler conveyed to Booth, Booth to Axtell, and Axtell to the plaintiffs. The verified amended answer alleged that the lease was filed for record August 1, 1903; that, in a deed to Booth the Doughertys “excepted from the provision of such deed all the rights of the defendant lessee”; that Booth conveyed to Axtell “reserving from such deed the rights of such lessee”; that Axtell conveyed to plaintiff by warranty deed “excepting one certain gas and oil lease given to J. H. Butler dated January 18,1903”; and that the plaintiffs had full knowledge of all the terms and conditions of the lease prior to their purchase of the land, as shown by letter attached to the answer. The answer .admitted that no work or developments of any kind had ever been undertaken under the lease; that the plaintiffs had served notice that they elected to declare it forfeited and void, and demanded that it be released of record; and it was further admitted that neither the plaintiffs nor the grantors had received any rentals or royalties from the lease. The court sustained a demurrer to this answer and entered judgment against the defendant for. $100 damages and $50 attorney’s fee; the plaintiff having alleged damages in the sum of $100, that a reasonable attorney’s fee was $100, and asking judgment for both. The petition to set aside the lease was based on the ground that no work or developments had been undertaken, and that the lease was without consideration, unfair, unjust, and unconscionable. It is said in the brief:
“The consideration consists of a promise to furnish gas if it is found on the leased land; it is like a promise to pay $100 for the lease, provided the lessee should find that amount of money in the road. Certainly, the appellant, by his admissions, has established beyond the question of a doubt the absolute want of consideration in this lease.”
It can hardly be said that the lease was without consideration, for if operations had been begun within a reasonable time they would have been rightful and authorized by the lease itself. The amended answer enlarged the effect of the exception clause in the plaintiffs’ deed, which, as appears by the copy set out, was merely a,n exception of the lease in the covenants against incumbrances. An exception of the “rights of the lessee” merely amounts to a leas'e subject to such rights, and it must be concluded that the plaintiffs stand in. the lessors’ shoes and have a right to require the defendant to carry out the express and implied provisions of the lease. It is now thoroughly settled law that such instruments carry the implied condition that operations .shall be begun- within a reasonable time. (Mills v. Hartz, 77 Kan. 218, 94 Pac. 142; Howerton v. Gas. Co., 81 Kan. 553, 106 Pac. 47; Id. 82 Kan. 367, 108 Pac. 813; Collins v. Oil & Gas Co., 85 Kan. 483, 118 Pac. 54; Day v. Pipe Line Co., 87 Kan. 617, 125 Pac. 43; Wheeland v. Gas Co., 92 Kan. 50, 139 Pac. 1010; Alford v. Dennis,, 102 Kan. 403, 170 Pac. 1005.)
In certain instances, as in the Howerton case and in Alford v. Dennis, when the question is one of pursuing operations already begun, and the injury caused by abandoning such operations can reasonably be shown, the recovery of damages, instead of cancellation, is deemed the proper relief. But when, as in the case before us and in Mills v. Hartz, supra, there is no attempt or apparent intention of beginning operations, the lease may be canceled-as a mere cloud on the title.
Under the pleadings and facts apparent therefrom, nothing had been done under the lease for thirteen of its twenty years’ duration, neither was there any intent or disposition indicated to do anything. This situation entitles the plaintiff to a decree of cancellation.
The parties seem to have acted under the provisions of sec tions 4992-4995 of the General Statutes of 1915, relating to the record, forfeiture, and surrender, of oil and gas and other mineral leases. Section .4994 provides that in an action to obtain a release the plaintiff “may also recover in such action . . . the sum of one hundred dollars as damages, and all costs, together with a reasonable attorney’s fee for preparing and prosecuting the suit, and he may also recover any additional damages that the evidence in the case will warrant.” This means that a judgment for the plaintiff includes as a matter of course one hundred dollars damages and a reasonable attorney’s fee (which the court is competent to fix), and it would seem, therefore, that the trial court merely followed the statute so far as these matters are concerned.
Indeed there is nothing in the brief of the defendant to indicate a contrary view on his párt, the argument presented by both sides being addressed to the right to decree cancellation.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On October 24, 1899, J. S. Compton executed a note to the Zeb Crider Commission Company, due April 24, 1900. About thirty days later J. F. Leslie signed a writing guaranteeing the payment of the note. In June, 1901, the holder of the note sued Leslie, and in time obtained a judgment against him, which he paid on April 16, 1916. On May 29, 1916, Leslie brought the present action against Compton for indemnity. He was denied relief on the ground that he had been guilty of laches, that the claim was stale and was barred by the statute of limitations. He appeals.
The rule is that a cause of action in favor of a surety against the principal debtor does not accrue, and therefore the statute of limitations does not begin to run thereon, .until payment has been made. (Mentzer v. Burlingame, 78 Kan. 219, 97 Pac. 371; 25 Cyc. 1113.) And ordinarily this rule is applicable to a guarantor. Here, however, the rights of' the parties are affected by the fact that Leslie became a guarantor, not only without any request on the part of Compton (as the court specifically found), but also without any knowledge of the fact on his part until this action was brought (as he testified and the court must be deemed to have fpund). It is tflue that by a contract with a creditor, made without the request or knowledge of the debtor, a person may bind himself as a guarantor of the payment of the debt. (20 Cyc. 1412.) But he does not thereby become a surety in the ordinary sense —his rights are not the same in all respects as those of a .guarantor who has become such at the express or implied request of the principal. If he is compelled to pay the debt he may have a remedy over against the original debtor, but it is not based upon the principles of ordinary suretyship.
“It seems to be necessary as between the surety and his principal, but not, as between the surety and the creditor, that the principal should have notice of and accept the surety’s offer to assume the relation.” (32 Cyc. 30.)
“A surety cannot ordinarily recover indemnity from the principal, unless he became surety at the request of the principal, either express or implied.” (1 Brandt on Suretyship and Guaranty, § 231.)
The following text from a recent work is borne out by the cases there cited:
“But in order to claim reimbursement of his principal, it is generally held that the surety must become such at the express or implied request <5f the former, otherwise he will be deemed a mere volunteer under the rule that one who, without authority, intermeddles with the affairs of another, even by paying his debts, cannot thus make himself the creditor of him whose debts he pays.” (Spencér on Suretyship, § 118.)
Reference is made in the note thereto, and in a subsequent section (§ 139), to a conflict of authority on the subject, but whatever want of harmony there may be in the results reached is largely due to the fact that different grounds of liability were invoked and considered. Where it has been held that a guarantor who has become such without the request of the debtor has no claim to be reimbursed if he is compelled to pay, the reason given has been that the case is not one of ordinary suretyship. Where the right of reimbursement has been sustained it has not been because the guarantor was a surety in the usual sense, but because he was found to be entitled to be regarded as a virtual purchaser of the debt. It has been said that—
“The fact that the guaranty was made at the request of the creditor and without the knowledge of the principal, does not affect the liability of the principal. The guarantor in such a case is not an officious inter-meddler having no remedy.” (12 R. C. L. 1099.)
The meaning clearly is, in view of the decision cited in support of the statement, that ignorance of the guaranty on the part of the debtor does not prevent his becoming liable to reimburse the guarantor. The statement that his liability is not affected thereby, if regarded as meaning more than that his liability is not prevented, goes beyond what is decided in the case referred to. There Jones had executed a bond (note) to Smith, with Black as surety.' Smith sold it to Boyd, Carter guaranteeing it without the knowledge of the makers. Carter was required to pay it, and sued Jones and Black. In the opinion it was said:
“The plaintiff Carter' is clearly entitled to a decree against the defendants, unless their objections that Carter was an officious inter-meddler, and for that reason not entitled to relief, and to the bill on account of Boyd’s being a party plaintiff, can avail them. . . . But it is said that Carter was an officious intermeddler, and on that account, can have no claim to the interference of a court of equity. It is true that he paid the amount of the bond to Boyd without any request, express or implied, from the defendants, Jones and Black, or either of them. He could not then have recovered at law, as was decided in a suit at law brought by him against them, Carter v. Black, 4 Dev. & Bat. 425. But in this court the plaintiff Carter stands in a very different situation. He is not suing here for money paid for the use of the defendants at their request. He became bound on the bond, at the instance of the plaintiff Boyd, and the defendant Smith, and, having paid the amount of it to Boyd, he claims as an equitable purchaser of it, and seeks here to recover on it . . '. in the same manner as Boyd might do. . . . From what has been before said, in considering the objection, that Carter was an officious intermeddler, it is to be deduced, that Boyd must be regarded here, as bound to assign the bond to Carter.” (Carter v. Jones, 40 N. C. 196, 198, 199, 200.)
In a similar case, B. & H. Boynton as principals, and Jedediah Boynton, as surety, made a note to John A. Place. At the request of Place, without the knowledge of the Boyntons, Dorwin also signed it. The court said:
“The act of Dorwin, in signing that' note at the request of Place, did not create the relation of principal-and surety, between him and the Boyntons; but, as tbe-money was raised for their benefit, very slight acts, recognizing that relation on their part, would place him, in the light of surety for them. Without some evidence, however, of that character, the relation does not exist, and Dorwin, on payment of the note, could not have sustained an action against them for money paid; for no one can make another his debtor, by paying his debt, without a request, either express, or implied. ... If Dorwin, before the contract for delay was made, had been called upon by the plaintiff [the purchaser of the note], and had paid the note, be would have been entitled, by subrogation, to all the rights, and remedies of the creditor against the other parties thereon, and would stand as a purchaser of the note. This right of subrogation exists in equity, not only where the strict relation of principal and surety is formed, ‘but where one is compelled to pay the debt in order to protect his own interests.’ ” (Peake v. Estate of Dorwin, 25 Vt. 28, 31, 32.)
These cases are regarded as establishing the doctrine that a guarantor who becomes such without the knowledge of the debtor, and is required to make payment, has a valid claim for reimbursement; but they go no further than to hold that such a voluntary guarantor is not deprived of recourse against the principal debtor upon the ground that he is a mere intermeddler. They proceed upon the theory that it is competent for the guarantor to become such by contract with the creditor alone; that when by virtue of the liability so assumed he is required to make payment he becomes virtually the purchaser of the claim against the debtor, or entitled to the rights of a purchaser. In that view it is proper that he should have all the remedies of the original creditor, but no reason is apparent why he should have any added right, or why he should be privileged to keep alive in this manner a claim which, so far as the debtor could know, had long since ceased to have any validity. In Teberg v. Swenson, 32 Kan. 224, 4 Pac. 83, this aspect of the matter is emphasized by the fact that the guarantor was given a formal assignment of the debt. The- opinion concludes with the words:
“In the present case, however, the plaintiffs did not volunteer to discharge the obligation of the defendant. They were bound by their written guaranty to pay the debt of the defendant; and when they paid the same they took a written assignment of such debt from the creditor. This gave them the same right to recover the debt from the defendant which the creditor previously had.” (p. 229.)
In the present ease Leslie was not a surety for Compton in any sense that implied a contractual relation between them. He had made an agreement with the owner of the note to see that it was paid. On being compelled to make payment in fulfillment of that obligation he had a remedy against Compton, but it was by virtue of his being subrogated to the rights of the payee, or of his having become the virtual purchaser of the note. If Compton had requested the execution of the guaranty, or if he had known of it and recognized it in any way — if Leslie had been his surety in the.ordinary sense — he would have been chargeable with notice that, although no action had been brought against him within five years of the .maturity of the note, proceedings might have been taken against Leslie, resulting in a payment which he might be called upon later to make good; but, as Leslie merely acquired the rights of a holder of the note, the statute of limitations protected Compton against him to the same extent as against any other purchaser. If it be objected that as a result of this view the statute of limitations had prevented a recovery by Leslie against Compton before his right of action against-him accrued, a sufficient answer is that no cause of action ever accrued in favor of Leslie —he is' in the attitude of one who has bought an outlawed claim. Compton 'was not at fault in the matter. A surety may acquire a claim for reimbursement by paying a debt which is alive as to him, but outlawed as to the principal. (Reed v. Humphrey, 69 Kan. 155, 76 Pac. 390.) A guarantor who has become such at the request of the principal has the benefit of an implied promise of indemnify, and a new and independent cause of action arises thereon whenever he is compelled to make a payment, irrespective of the time of maturity of the original debt. But a grantor who becomes such by an agreement with the creditor, to which the debtor is not a party, and is compelled to make payment, has no claim based upon an Implied promise of reimbursement; his rights are equivalent (to those of a purchaser of the debt, and his remedy is lost whenever an. action on that is barred. No inequity results from this view in the present case. Compton was justified in believing that the note had been fully paid from the proceeds of mortgaged cattle, or that all claims, upon it had been abandoned. Leslie could probably have protected himself by giving Compton notice of his relation to the matter, and causing him to be made a party to- the action on the note. At all events, the running of the statute in favor of Compton was not prevented by dealings between Leslie and the holder of the note, of which he had no knowledge, actual or constructive.
While not material to the decision, it may be pertinent to add that the defendant claimed a meritorious defense apart from that here considered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant brought suit against the appelleeson a promissory note which was drawn in the following form:
“$2,637.00. _ Jan. 29th, 1913.
“One year after date we promise to pay to the order of James Lonnon twenty-six hundred, thirty-seven & no/i(><> dollars, for value received, negotiable and payable without defalcation or discount and with interest from date at the rate of eight percent per annum.
F. N. Batchman, W. L. Hiss, G. W. Hart, H. N. McGill, Lead & Zinc Co.” Wm. Gagleman, ^
The answer denied that the parties executed the note individually or that they were personally liable thereon, and alleged that the note was the obligation of the Sunflower Lead & Zinc Company. On the trial the court, over appellant’s objections, permitted appellees to introduce oral evidence to show that their intention was to sign the note for the corporation, and not for themselves as individuals. The court made a finding that the note was'the obligation of the corporation, and'not that of the appellees, and rendered judgment against appellant, who brings the case here for review.
The trial court held that it was not clear from the face of the note whether the appellees contracted on behalf of the corporation or for themselves, and that the case is governed by the decisions in Kline v. Bank of Tescott, 50 Kan. 91, 31 Pac. 688; Benham v. Smith, 53 Kan. 495, 36 Pac. 997, and Grocer Co. v. Lackman, 75 Kan. 34, 88 Pac. 527. In our opinion it was error to permit the appellees to introduce oral testimony to show what their intention was in executing the note.
In Kline v. Bank of Tescott, supra, the note was signed:
“Kanopolis Creamery Company. H. C. Waite, President. W. B. Wooley, Secretary.”
There the note purported on its face to be executed by the corporation through its president and secretary.
In Benham v. Smith, supra, the note was signed:
“W. M. Benham, President Odd Fellows’ Hall Association. A. T. Lea, Secretary.”
Accompanying the note, however, was a mortgage reciting that the corporation had that day consented that the mortgage should be signed by its president and attested by its secretary, and its corporate seal to be thereto affixed; and the mortgage was signed in the same way that the note was signed. The mortgage contained a description and identification of the note. The two instruments were construed together as one transaction, and it was held that the president and secretary could introduce the mortgage, and also parol evidence, to show that they signed for the association only.
In the case of Grocer Co. v. Lackman, supra, the note was signed:
“The Kansas City & Olathe Electric Ry. Co., Wm. Lackman, President, D. B. Johnson, Secretary.”
.It was held admissible to show that the note was the obligation of the company, and not of Lackman and Johnson.
In the present case we have merely the note itself, and it is not signed by the president and secretary of the corporation, nor in the way in which notes are usually executed by corporations. Oh the contrary, it is signed by a number of individuals who describe themselves as members of the board of directors of a certain corporation. They do not sign as the board, nor even as constituting all the members of the board, which might have consisted of more members than those who signed the note. The words “Members Board of Directors Sunflower Lead & Zinc Co.,” amount to nothing more than a description of the individuals who executed the instrument.
The negotiable-instruments' law (Gen. Stat. 1915, § 6590) reads:
“A person placing his signature upon an instrument otherwise than as maker, drawer or acceptor is deemed to be an indorser, unless' he clearly indicates by appropriate words his intention to be bound in some other capacity.”
In Bank v. Jeltz, 101 Kan. 537, 167 Pac. 1067, this provision of the statute was construed to mean just what it says, and it was ruled that—
“If a person placing his name on a promissory note do not clearly indicate by appropriate words an intention to be bound in a special capacity, and sign as maker, his liability to the holder is that of maker, although his relation to a comaker be that of surety.” (syl. ¶ 1.)
The cases of Kline v. Bank of Tescott and Benham v. Smith, supra, were both decided long before the adoption of the negotiable-instruments law. The only one of the three decisions upon which appellees rely which was decided since that law became effective is Grocer Co. v. Lackman, supra, which was rendered in 1907, two years after the passage of the act. While it was said in the opinion, “It has been held in this state that where it is uncertain from the face of the note whether it was intended to be the note of the corporation or of the individuals signing, or both, if the litigation arises between the original parties evidence may be introduced to explain the ambiguity.” (p. 35.) No reference was made to the negotiable-instruments act, and obviously the effect of section 6590 of the General Statutes of 1915 was not considered. Besides, it clearly appeared from the face of the note in that case that it was the •note of the railway company, whose signature was placed upon the instrument by Lackman, President, and Johnson, Secretary.
The legislature has declared'that a person signing as maker must clearly indicate by appropriate words his intention to be bound in some other capacity, or he will be held as maker. Whatever the effect of the. former decisions" may be, and we have pointed out what we deem sufficient to distinguish them from the present case, the negotiable-instruments law must control. In 8 C. J. 49 it is said:
“The Negotiable Instruments Law repeals prior inconsistent laws; and overrules previous decisions to the contrary. Where the language of such an act is clear it must control whatever may have been the prior statutes and decisions on the subject. Where there is a substantial doubt as to the meaning of the language used the old law is a valuable source of information.”
We think there was no such ambiguity in the note in question as will open the door to oral testimony to show the intention of the makers. The statute declares that their intention to be bound otherwise than as makers must be clearly indicated by .appropriate words.
The judgment will be reversed and the cause remanded with directions to render judgment for the appellant as prayed for in his petition. | [
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The opinion of the court was delivered by
Porter, J.:
The plaintiff sued upon a certificate of deposit for $2,000, issued by the bank, dated October 28, 1912. As a defense the bank claimed the right to credit the certificate with the amount of two notes, one for $280 executed by the JonesBoltz Manufacturing Company for money borrowed from the bank four months before the certificate was issued, and the other a note for $881.67 given by the same company for money borrowed two months after the date of the certificate. Mrs. Jones had recovered a judgment against a railway company for $8,000 on account of personal injuries, and her attorney, who lived in another county, hadt a draft payable to his order and hers. The president of the .bank, at plaintiff’s request, went to the attorney’s office, gavé,his personal check to the attorney for the latter’s share, and brought the plaintiff’s share to her at hep residence. He testified that she was sick and confined to her house, and that when he asked her what the bank should do with the money, she said she could n’t take care of it, but that her husband would see to that, and whatever he did would be satisfactory. Soon after this conversation the husband took the money to the bank, and two certificates were issued, each for $2,000, payable to plaintiff’s order. At the same time $500 was placed to her credit in a general account. Her husband was allowed to check on the general account until March, 1913, when plaintiff gave the bank written notice not to cash, any further checks drawn by him. One of the certificates had been paid in full, but when the second was presented for payment the bank paid $300 and refused further payment until the notes had been satisfied. Plaintiff’s husband, Sam Jones, was an officer and stockholder in the Jones-Boltz Manufacturing-Company. The defendant offered the testimony of its president and another officer of the bank to the effect that when Jones came to borrow the $881 for the manufacturing company, the bank first declined to loan the money to the company; that Jones told the bank if it would make the loan, his wife’s, money on deposit could be held as security for the company’s note; that, relying on these statements, the bank made the loan evidenced by the second note for $881, which was signed by the officers of the Jones-Boltz company and some other stock holders and officers as sureties; that subsequently Sam Jones informed the officers of the bank that the $2,000 certificate might be retained by the bank as security for the payment of both of the company’s notes. As a further defense the bank offered evidence to show that the plaintiff was a large stockholder in the Jones-Boltz company. The court struck out the defendant’s testimony and instructed a verdict in plaintiff’s favor. The bank brings the case here for review.
The testimony of what was said and the conduct of the plaintiff showed authority for the bank to cash checks drawn by her husband on her checking account up until the time she notified the bank to the contrary; but it requires some stretch of imagination to find the slightest basis for any authority to pledge the moneys represented by her certificates of deposit as security for the notes of. the manufacturing company. Aside from this, the- promise rélied upon, even if shown to have been made by the plaintiff, was oral, and the sixth section of the statute of frauds (Gen. Stat. 1915, § 4889) prohibits the bank from relying upon such a promise. There is no merit in the contention that the statute of frauds applies only to the plaintiff in an action. While the statute reads—
“No action shall be brought whereby to charge a party upon .any special promise to answer for the debt, default or miscarriage of another person; . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing.
it applies with equal force to a defendant who sets up his claim by way of answer or cross petition.
“According to the weight of authority, a verbal contract within the statute of frauds cannot be enforced indirectly as a defense to a demand otherwise legal and just.” (29 A. & E. Encycl. of L. 822, and cases cited in note 3.) (A few authorities to the contrary are cited in note 6.)
(See, also, Reinheimer v. Carter, 31 Ohio St. 579; Eberville v. Leadville T. M. & D. Co., 28 Colo. 241, and Case v. Barber, T. Raym. 450.)
In Case v. Barber, supra, it was said:
“When the defendant pleads such an agreement in bar, he must plead it so as it may appear to the court, that an action will lie upon it, for he shall not take away the plaintiff’s present action, and not give him ahother upon the agreement pleaded.” (p. 451.)
The fact that the plaintiff was a stockholder in the corporation did not make her liable for its debts in an action of this kind upon a claim of the bank which had not been reduced to judgment. The trial court properly held that the defendant’s evidence was incompetent under the statute of frauds.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
W. T. Lewis, a real-estate broker, brought this action against T. W. Kimball, to recover commission^ for procuring purchasers for defendant’s farm. The judgment was in defendant’s favor, and plaintiff appealed. Since the appeal was taken W. T. Lewis has died, and his representative has been substituted. .
It appears that in November, 1914, defendant listed his 187-acre farm with plaintiff under an agreement that if he could find a purchaser for $18,700 plaintiff should have $700 as his commission. Shortly afterwards the. plaintiff made an arrangement with one Rison, of Wichita, by which he agreed to divide the commission with Rison in case he found a purchaser for the land. In January, 1915, plaintiff brought a prospective purchaser named Rutherford to look at the farm, and on the same day Rison appeared with a man named Norris who talked of exchanging other property for the farm. Neither of them was able to make an agreement of purchase or exchange with the defendant. Soon afterwards an agent of Rutherford proposed to pay $17,000 for the land in cash, and an agreement was made by the plaintiff that if a sale was made on these tehms he would accept $400 as his commission. A new contract of brokerage was' therefore made between plaintiff and defendant on that basis. Under an agreement- of sale made between Rutherford and defendant on February 17, 1915, the defendant was to prepare and furnish an abstract of title, and Rutherford was to advance $1,000, and the transaction was to be closed, and the balance due was to be paid on or before March 15, 1915, and if payment was not made when due, the $1,000 advanced by Rutherford was to be forfeited. The sale was never completed, as Rutherford failed to pay the balance due, and the $1,000 was forfeited to the defendant. There was some controversy between the parties as to whether the plaintiff was entitled to a commission for bringing Rutherford and the defendant together, and defendant, while insisting that there was no liability, did pay plaintiff $25 towards his services and expenses in the transaction. Later, and on August 5, 1915, the plaintiff brought an action against the defendant, claiming that $375 was due to him on the transaction. In the meantime some efforts were made by Rison to induce Norris to purchase the land, and negotiations were had between him and the defendant, but Rison stated in his testimony that he had told the defendant he would not expect a commission if a deal was made between him and Norris. After plaintiff’s action for commission had been pending for. some time conferences were had between the parties about a settlement of their differences, with the result that an agreement was reached and a stipulation was drawn up by defendant’s attorney, by which plaintiff, in consideration of $125 paid by the defendant, agreed that it should constitute “a full and complete settlement of all matters and things between said parties and said sum pays said plaintiff W. T. Lewis in full for all services heretofore rendered as a real-estate agent in the listing and attempting the sale of the 187-acre farm of the defendant T. W. Kimball in Salt Springs township, Greenwood county, and state of Kansas, including the commission claimed in said above entitled action.” There was a further agreement that the action should be dismissed and the costs of the same paid by the defendant.
Shortly afterwards the defendant made an exchange and sale of properties with Norris, and the plaintiif then went back into court and filed a supplemental petition alleging that he was induced to sign the stipulation by the fraudulent representations of the defendant and his attorney, and that the only settlement made was for his services in the Rutherford transaction, and he also alleged fraud in concealing from him the fact that defendant had negotiated a sale or trade with Norris. The validity of the stipulation was a vital issue in the trial which followed, and, while the jury returned a verdict awarding the plaintiif $125 on the first count and $455 on the second count, the other special findings negatived the claim that there Was fraud in the execution of the compromise agreement. The jury found that the defendant made no fraudulent representations to the plaintiif when the settlement was made, and another finding acquitted the defendant’s attorney of the charge that he had made false and fraudulent statements to plaintiif at the time of making the agreement. They also found that in the making of the agreement neither the defendant nor his attorney had fraudulently withheld any material fact regarding the agreement. These findings determine the validity of the compromise agreement and amount to a practical disposition of the case. The agreement was made after hostilities between the parties had begun and after their dispute had culminated in a lawsuit. They were dealing at arm’s length and their agreement, found to be without misrepresentation or fraud, is specific and complete. The law favors-the compromise and settlement of disputes, and when parties in good faith enter into an agreement based on good consideration neither is permitted afterward to deny it. (Finley v. Funk, 35 Kan. 668, 12 Pac. 15; Minor v. Fike, 77 Kan. 806, 93 Pac. 264; Filer v. Wohletz, 79 Kan. 716, 101 Pac. 474.) There was a real dispute between the parties herein. It waS-settled by an agreement which specifically covers all the services rendered by the plaintiif. in his attempts to find a purchaser for the defendant’s land, including both the Rutherford and Norris transactions. Having been found to be valid and complete, the agreement must be sustained, regardless of the merits of the controversy between the parties. Whatever the plaintiff might have recovered if no compromise had been made, it is clear that when the settlement was made and the stipulated sum paid and accepted, the defendant was then at liberty to negotiate a sale or exchange with Norris or any one else without liability to plaintiff.
The determination that the agreement is valid and binding upon the parties renders a number of the objections argued-by the appellant immaterial. ' We have examined all the assignments of error, including those on the refusal of the court to submit special questions, as well as upon the instructions given and refused, and find nothing substantial in them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff was employed in defendant’s coal mine. A large rock fell from the roof of the mine and ¿rushed a fellow workman. In response to the latter’s appeal for help, plaintiff sustained a femoral rupture while exerting all his strength to 'lift the rock from the injured man.
This case was brought under the workmen’s compensation act, and the trial court awarded plaintiff a lump-sum judgment computed on the basis of five dollars and some cents per week for eight years, pursuant to a finding that plaintiff’s injuries were of a permanent nature and partially incapacitated him for work.
Defendant contends that there was no evidence to sustain the finding of diminished, capacity, and cites part of section 5896 of the General Statutes of 1915, which before the amendments of 1917 provided:
“That (a) the employer shall not be liable under this act in respect of any injury which does not disable the workman for a period of at least two weeks from earning full wages at the work at which he is employed.”
It is true that plaintiff’s injury did not immediately and totally incapacitate him from labor. He continued to work for some time, although he began to feel pain the night following the injury.
Plaintiff testified:
“Before I got hurt I used to lay off and have a good time and after I got hurt I layed off because I hurt.....I lay off about two weeks before I came here. . . . Since I was hurt in the mines I worked every day I possibly could and as hard as I could. I have tried my best. . . ." In the Illinois mine I did not work alone. There were two men working with me. . . . When a big chunk would fall my buddy lifted it for me. . . . • They lifted the large piéces of coal in the car for me because I couldn’t lift them myself. ... When I am working a knot sticks out on me.”
The .statute quoted does not mean that unless a workman’s ■injuries totally disable him from laboring for the first two weeks .succeeding his mishap he cannot recover. It means that ufiless' the injury is sufficiently serious to disable him for two weeks, the injury is' considered by the statute to be too trivial for its concern. The statute would discourage malingering, and the harassing of employers with petty claims of little or no merit. But it would nev.er do to say that the courageous workman who sticks to his task notwithstanding hid pain and injury is to be penalized for so doing. Neither would it do to say that an injured workman who in pain and distress and with the gratuitous help of his fellow workmen can still earn as much as he was wont to do before his strength and vigor were impaired is not entitled to compensation. A workman who is injured is not compelled then and there to lay off for two weeks to protect his rights under the act. The soldier who is wounded, but who still “carries on,” is looked upon as a hero; the injured workman who likewise attempts to “carry on” will lose nothing by so doing when his rights become a matter of judicial determination. ,
The court discerns no trouble as to the sufficiency of the evidence of diminished earning capacity. The plaintiff was so much distressed that he had to go to another state, to a mine where the coal vein was eight feet thick, and where his “buddies” (friendly fellow workmen) would help him with heavy lifting. The court attaches no controlling significance to the fact that his semimonthly pay checks were sometimes as large or larger after his injury than they were before he was hurt. The evidence showed that in the.days of his full vigor he occasionally took a lay off to enjoy himself; since his injury he occasionally is compelled to take a lay off because of pain which now attends his arduous vocation. These were merely circumstances to be considered with all the other facts and circumstances, pro and con, in determining whether plaintiff’s claim was genuine or spurious.
It is also contended that the court erred — that it abused its discretion — in awarding plaintiff a lump-sum judgment, and that if plaintiff was entitled to compensation it should have been awarded in periodical 'payments. It may be true that ordinarily a rupture like a femoral hernia can be successfully treated by a surgical operation which is not considered dangerous to life nor attended by much suffering, and that if plaintiff would resort thereto he might be completely restored to his former vigor in a few weeks or months, probably in much less time than eight years. But this court cannot say that on that account the trial court abused its discretion in granting a lump-sum judgment. Moreover, in this case as in many preced ing appeals touching this compensation act, counsel urge too strongly the general philosophy upon which compensation acts are supposed to be founded, and do not read with close and critical scrutiny the literal text of the Kansas act. Some years ago, when reformers and magazine writers were urging legislatures to enact these compensation laws, the matter of periodical payments for injured workmen was elaborated, and it was wisely urged that courts or commissions should have power, not only to award such judgments, but also to terminate the periodical payments when assured that the injured workman was completely restored. While that doctrine will be found in the Kansas act (Gen. Stat. 1915, § 5926), the Kansas legislature apparently had a mind of its own, and it provided first and foremost that where injured workmen are compelled to resort to judicial proceedings to secure compensation they may be awarded a lump-sum judgment, and, secondly, that, in the discretion of the trial court, the decree may provide for periodical and terminable payments.
“The Judgment in the action, if in favor of the plaintiff, shall be for a lump sum equal to the amount of the payments then due and prospectively due under this act, ... . or, in the discretion of the trial Judge, for periodical payments as in an ' award.” (Gen. Stat. 1915, § 5930,)
(Cain v. Zinc Co., 94 Kan. 679, 146 Pac. 1165, 148 Pac. 251; Roberts v. Packing Co., 95 Kan. 723, 149 Pac. 413; McCracken v. Bridge Co., 96 Kan. 353, id. 799, 153 Pac. 525; Halverhout v. Milling Co., 97 Kan. 484, 155 Pac. 916.)
Since the statute gave the injured workman a right to a lump-sum judgment, and merely added a grant of discretionary power to the court to modify that right, a failure to exercise a discretionary power which the trial court might or might not care to use does not ordinarily amount to abuse of discretion. Cases have come before this court, and perhaps this is one itself, where, if we were trial judges, we would probably have awarded periodical and terminable payments, although we realize that such a disposition of the matter would give trial judges additional labor, since it is easier to decree lump-sum judgments and get the judicial business completely and finally dispatched while the facts are all fresh in memory; but even so, no abuse of discretion in failure to exercise a mere discretionary power being manifest here, we cannot substitute our judgment for the judgment of the trial court on the very matter which the statute has left to the trial court’s determination. (Gorrell, v. Battelle, 93 Kan. 370, syl. ¶ 5, 144 Pac. 244; Perkins v. Accident Association, 96 Kan. 553, 555, 152 Pac. 786.)
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Johnston, C. J.:
This was an action by the state against the board of education of Oswego to enjoin a bond issue to .the amount of $30,000 previously voted by the electors of the district for the erection of a school building, and also to prevent the board from contracting for the construction of the building. Several grounds of illegality in the election and in the preliminary procedings were alleged by the plaintiff; but the only one sustained by the trial court was that the proposed issue was in excess of the legal limitation. For that reason the issue of bonds was enjoined, and from that judgment the defendant appeals.
Oswego is a city of the second class, and under a statutory limitation a board of education of a city of that class may not issue bonds which, with existing indebtedness, will exceed 244 percent of the authorized valuation of the district. (Gen. Stat. 1915, § 9147.) In another statute an exception to the general limitation is made, by which the board of school-fund commissioners may authorize an election for an increased amount for the purpose of erecting school buildings. (Laws 1911, ch. 257, Gen. Stat. 1915, §§ 10890-10893.) The valuation of the property of the district is $1,730,225 and 244 percent of that valuation is $38,930.06. The existing indebtedness of the district is $22,256.62, and deducting that sum from the authorized issue under the general limitation leaves the sum of $16,673.44 as the total amount the board could issue without obtaining special permission under chapter 257 of the Laws of 1911. Recognizing that it could not issue bonds in the amount of $30,-000 without special authority of the school-fund commissioners, application was made for that authority, and an order was signed by the commissioners granting the district permission to vote bonds in any sum within the limitations of the law, including that in chapter 257 of the Laws of 1911. The validity of this order was drawn in question, and the trial court after hearing the evidence found, among other things, that the evidence did not prove that permission to vote bonds had been obtained by a proper petition; that no notice of an intention to file such an application was given; and that a day was not set for a hearing of the application at the county seat of Labette county. The court also found that if it should indulge the presumptions that these things had been done, it must still find from the evidence in the case that the hearing was not had nor the order made at the county seat of Labette county. The controlling statute, after providing for the application and the petition, and also for the notice of an intention to file the application, provides:
“The sa.id 'application shall be heard by the board of school-fund commissioners upon a day fixed, and the board of education or school district board be so notified; and which hearing shall be at the county seat of the county whence the application comes; and the said board shall make an order either granting or denying said application;” etc. (Laws 1911, ch. 257, § 4, Gen. Stat. 1915, § 10892.)
'The provision is imperative that the application must be heard at the county seat of the county in which the district is situated. The legislative purpose appears to be to afford those interested in securing or resisting the application an opportunity to attend the hearing without the inconvenience or expense of going to the offices of the commissioners at the state capítol, and also better to enable the commissioners to ascertain whether the proposed issue of bonds is necessary and prudent. The fact that the order was signed at Topeka, and not at Oswego, does not render the order invalid. The statute does not in terms provide where the order shall be signed, and, in the absence of a specific direction, it must be assumed that it may be done at their office in Topeka, where their records are kept and where all official acts are to be performed, except such as are expressly required to be done elsewhere; No discretion, however, is vested in the commis sioners in respect to the place where the hearing is to be held. A hearing at the county seat, upon due notice of the time and place, is essential to the validity of the order authorizing an additional issue' of bonds. Defendant claims that the finding of the court as to the place of hearing is not supported by the evidence, but the evidence in the case is not preserved. Defendant contends and has a statement in the record to the effect that the order of the commission was the only evidence as to the action of the commissioners; while the defendant says, and the trial court in the entry of judgment, including the findings, recites that “the court finds from the evidence herein, that the hearing was had and such order made in the city of Topeka, Kansas, and outside of the county of Labette.’' In that state of the record it canpot be held that the finding is without support.
The defendant complains of a ruling of the court permitting the plaintiff to amend the petition by adding an averment that the indebtedness created by the proposed bonds would be in execess of the amount allowed by law. The defendant had an opportunity to meet this claim and the testimony offered under it, and it can be said at least that no prejudice to the defendant resulted from it.
The right to enjoin the entering into the contract for the construction of the building was not contested, and the result reached renders it unnecessary to determine the other questions presented by the respective parties.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Davis, J.:
Sharon K. Carr was found guilty of first-degree felony murder in the death of her adopted daughter, 3-year-old Shayleen Carr. She appeals, raising numerous issues involving questions of law, admissibility of evidence, juiy instructions, and the sufficiency of evidence. We conclude that no reversible errors occurred in the trial of her case and affirm.
At approximately 4:40 p.m. on September 7,1995, the defendant brought Shayleen to the South Minor Emergency Center in Wichita. Shayleen was unresponsive, with a dilated left pupil, labored breathing, and bruises on the ear, neck, and elbow. The defendant told a nurse at the center that Shayleen was jumping on the bed and fell to the carpeted floor. Shayleen was taken to the trauma room and then transported to Wesley Medical Center (Wesley).
The CT scan of Shayleen’s head revealed bleeding over the surface of the brain and a swelling of the brain which caused the left side of the brain to compress into the right side. Shayleen’s brain continued to swell, and she died from her injuries 4 days after admission to the hospital.
In an interview with police, the defendant first stated that Shayleen had rolled out of bed and fallen. The defendant told police that Shayleen never wanted to take her afternoon nap, and at times the defendant would have to hold Shayleen’s arms on the bed until Shayleen fell asleep. She also stated that the defendant needed the nap time to herself so that she could have peace and quiet. Later, the defendant admitted that she spanked Shayleen before Shayleen fell off the bed. The defendant stated to the police that Shayleen’s brother, Jared, obeys the rules but Shayleen does not and as a result the defendant gets frustrated and irritated.
After admitting to spanking Shayleen four or five times, the defendant also admitted to shaking Shayleen four or five times and putting her back on the bed. She stated that she was trying to shake Shayleen hard enough to get her attention, and that she did not mean to spank Shayleen, but she just let her temper get out of control because Shayleen’s conduct had been going on all week. The defendant stated that when she shook Shayleen, Shayleen’s head bobbed back and forth.
A search of the defendant’s residence uncovered a blood-stained tissue in the bathroom trash can and a small child’s t-shirt, with bloodstains around the neck and shoulder area, on the washer. Investigators measured the distance between the top of Shayleen’s bed and the carpeted floor and found it to be approximately 19 inches.
The State introduced testimony from various physicians as to the cause of Shayleen’s death. Dr. Lindall Smith, a pediatric critical care physician at Wesley, testified that Shayleen had suffered a severe closed head injury and opined that a fall from a bed would not cause such a severe injury. He stated that comparable head injuries might be caused from being thrown headfirst through a car window or being ejected from a car in an accident.
Regarding the bruises on Shayleen, Dr. Smith testified that according to their color, they were of different ages. He noted that many of the bruises were in places which were not typical for bruises on toddlers. Dr. Smith stated that in his opinion, Shayleen’s death was the result of shaken blunt trauma syndrome.
Dr. Marcus Nashelsky, a forensic pathologist who conducted the autopsy of Shayleen, testified that the girl had bruises on the back, including the left buttock, as well as bruises on both arms, thighs, and legs. Dr. Nashelsky also found bruises on the front and sides of the head, including a deep scalp bruise on the forehead, a large bruise on the back of the head near the top, and a bruise on the lower left back of the head, indicating multiple impacts. He further testified that Shayleen’s brain was extremely swollen with bleeding in the space around the brain, indicating severe impact injuries to the head. The swelling of the brain reached the point that it had compressed the brain stem at the base of the brain.
Dr. Nashelsky also noted bleeding in the back of the eyes, which was particularly indicative of a shaking injury. He opined that Shayleen died of head injuries consisting of many blunt force injuriés and shaking injuries to the head and stated that his autopsy findings were absolutely inconsistent with a fall from a 19-inch high bed.
The defendant presented the testimony of her expert, Dr. Michael Amall, an Associate Medical Examiner for West Palm Beach, Florida. Dr. Amall testified that Shayleen s death might have been caused by a previous subdural hematoma which began bleeding again in response to slight trauma, coupled with a bleeding disorder. He stated that a 19-inch fall could cause a subdural hematoma to rebleed, and further that any one of Shayleen’s injuries could be consistent with a 19-inch fall. However, both Dr. Nashelsky and Dr. Katherine Melhom, a pediatrician called by the State, testified that there was ño sign that a subdural hematoma had rebled or that Shayleen had suffered from a bleeding disorder prior to the injury.
In rebuttal, the State called Dr. Leonard Klafta, a neurosurgeon who stated that there was far too little blood in the region where Shayleen had suffered a previous subdural hematoma to account for the brain swelling. The State also called Dr. Michael Varenhorst, an ophthalmologist, who stated that almost always retinal hemorrhaging in children such as that suffered by Shayleen is accompanied by head trauma and that normal head injuries do not cause retinal hemorrhages; instead, it takes significant force to do so.
During trial, a question arose concerning the admission of evidence regarding the defendant’s prior discipline of Shayleen and Jared. After a hearing outside the presence of the jury, the trial court determined that such testimony would be admissible to show a continuing course of action between the parties. Some of the defendant’s friends and fellow church members then testified that the defendant was often harsh with the children and reacted violently and inappropriately to what those testifying perceived to be minor incidents of misbehavior. These witnesses characterized the defendant as a person who was frustrated over the misbehavior of the children and the lack of parenting support she received from her husband.
There was also a heated controversy over whether Jared would be allowed to testify, or whether statements which he made to various persons after Shayleen’s death could be admitted. After a thorough hearing on competency, the trial court decided that Jared was not competent to testify. However, the court found that certain statements Jared made would be admissible as exceptions to the rule against hearsay. As a result of this ruling, the State introduced statements made by Jared to Adella Ozor, a social worker with the Kansas Department of Social and Rehabilitation Services (SRS), and Jenny McCracken, a registered nurse in the pediatric intensive care unit at Wesley.
The defendant put on a variety of witnesses in her defense, including several former employees of SRS who testified regarding the steps taken to approve the defendant and her husband as foster and later adoptive parents of Shayleen and Jared. Once approved, the defendant and her husband became the foster parents of and eventually adopted Shayleen and Jared. The defendant’s husband also testified as to the defendant’s parenting skills and expressed his disbelief that the defendant could have hurt Shayleen.
The defendant contends that the following issues require reversal of her conviction and fife sentence: (I) A single incident of child abuse is insufficient to serve as the underlying felony for a conviction of first-degree felony murder; (2) the trial court’s instructions on abuse of a child were erroneous and violated the rule of jury unanimity; (3) Jared’s statements were hearsay and were erroneously admitted; (4) the court erred in failing to allow other hearsay statements of Jared into evidence; (5) the jmy should have been instructed on lesser included offenses; (6) the admission of autopsy photographs was prejudicial; (7) the admission of prior acts of the defendant towards her children was error; (8) there was cumulative error requiring a new trial; and (9) the evidence was insufficient to support the conviction.
(1) FELONY MURDER — ABUSE OF A CHILD
The defendant contends that a single act of child abuse merges into the homicide and cannot be used as an underlying felony. The defendant also argues that intent to commit the act of hitting or hurting in the commission of child abuse is insufficient to transfer the premeditation and intent required to establish first-degree felony murder.
Our recent decision in the case of State v. Smallwood, 264 Kan. 69, 955 P.2d 1209 (1998), disposes of the defendant’s first contention. We held that the legislature intended that one instance of abuse of a child could indeed be the underlying felony for a felony-murder conviction. 264 Kan. at 94.
The defendant argues that the basis for the crime of first-degree felony murder is the theory that it relieves the State of the burden of proving the elements of premeditation and intent by transferring those elements from the underlying felony. According to the defendant, because abuse of a child is not a specific intent crime, it cannot supply the requisite premeditation and intent for a felony-murder conviction.
In State v. Hupp, 248 Kan. 644, 651, 809 P.2d 1207 (1991), this court stated: “In felony murder, premeditation and intent are transferred from the underlying felony . . . .” Also, in State v. Clark, 204 Kan. 38, 44, 460 P.2d 586 (1969), we stated that the rationale behind felony murder is that the killer’s malignant purpose is established by proof of the collateral felony. We have also held that abuse of a child is not a specific intent crime in that the intent to injure is not required, but instead simply the intent to hit and hurt. State v. Bruce, 255 Kan. 388, 392-393, 874 P.2d 1165 (1994); Hupp, 248 Kan. at 652-53.
However, in arguing that abuse of a child is not a specific intent crime, the defendant ignores the fact that although it does not require some specific intent to injure, it does require a criminal intent — the intent to cruelly beat, intentionally torture, inflict cruel and inhuman corporal punishment on, or shake a child. See K.S.A. 21-3609. Thus, accidentally hitting a child is not abuse of a child. Moreover, while the felony-murder doctrine is based on die transfer of criminal intent, there is no requirement that it be based on the transfer of any specific intent beyond the general criminal intent in K.S.A. 21-3201 required for all crimes in Kansas.
In State v. Thomas, 239 Kan. 457, 461-62, 720 P.2d 1059 (1986), we gave what is perhaps the best explanation of the felony-murder rule:
“In felony-murder cases, the elements of malice, deliberation and premeditation which are required for murder in the first degree are deemed to be supplied by felonious conduct alone if a homicide results. To support a conviction for felony murder, all that is required is to prove that a felony was being committed, which felony was inherently dangerous to human life, and that the homicide which followed was a direct result of the commission of that felony.”
It matters not whether abuse of a child requires a specific intent to injure. We have never required that an intent to injure be an element for the underlying felony in a felony-murder prosecution. All that is required is felonious conduct which is inherently dangerous to human life. Thus, the second part of the defendant’s argument fails.
The defendant also suggests that K.S.A. 21-3609 is unconstitutionally vague. We held otherwise in Hupp, a fact which the defendant notes. See 248 Kan. at 656. The defendant, however, contends that an amendment to the statute in the time since our decision in Hupp requires us to revisit this issue.
The statute at issue in Hupp defined child abuse as “willfully torturing, cruelly beating or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years.” K.S.A. 21-3609 (Ensley 1988). Hupp complained that the terms “cruelly beating” and “inflicting cruel and inhuman corporal punishment” were unconstitutionally vague. 248 Kan. at 655. We disagreed, stating that the phrase used provided reasonably definite standards which one reading the statute could understand and contemplate. 248 Kan. at 656.
Effective July 1, 1995, the legislature amended 21-3609 by inserting the words “shaking which results in great bodily harm.” See L. 1995, ch. 251, § 12. The defendant claims that this change makes the statute vague because it is not modified by a particular mental state. The opposite is true. The 1995 amendment makes the statute more definite in that it makes clear that the conduct proscribed is the intentional torturing, cruelly beating, or shaking of a child which results in great bodily harm. The fact that there is no modifier with regard to the word shaking does not make the term ambiguous. A reasonable person could easily understand that the criminal conduct involved is shaking which results in great bodily harm. Further, it is clear from the application of K.S.A. 21-3201 that the required mental state is that the shaking be intentional. We conclude that K.S.A. 21-3609 is not vague.
(2) TURY INSTRUCTIONS
The defendant contends that the trial court erred in its instructions to the jury regarding the elements of the crime of abuse of a child. Further, the defendant contends that the instructions as given violated the rule of jury unanimity.
The defendant freely admits that she did not object to the instructions at the trial court level. Therefore, we may only reverse if the instruction given was clearly erroneous. See State v. DePriest, 258 Kan. 596, 605, 907 P.2d 868 (1995). An instruction is clearly erroneous only if this court reaches a firm conviction that if the trial error had not occurred, there is a real possibility the juiy would have returned a different verdict. State v. Isley, 262 Kan. 281, 291, 936 P.2d 275 (1997).
The jury instruction with which the defendant takes issue stated:
“The defendant is charged with the crime of murder in the first degree. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
1. That the defendant killed Shayleen N. Carr;
2. That such killing was done in the commission of abuse of a child, a felony; and
3. That this act occurred on or about the 7th day of September, 1995, in Sedgwick County, Kansas.
“The elements of abuse of a child are as follows:
1. That the defendant intentionally cruelly beat, inflicted cruel and inhuman bodily punishment upon or shook Shayleen N. Carr, which resulted in great bodily harm to Shayleen N. Carr;
2. That Shayleen N. Carr was a child under the age of eighteen years; and
3. That this act occurred on or about the 7th day of September, 1995, in Sedgwick County, Kansas.
‘‘The words 'cruelly beat, inflicted cruel and inhuman bodily punishment upon or shook Shaijleen N. Carr, which resulted in great bodily harm to Shayleen N. Carr do not require an intent to injure. It is the act of hitting and hurting that is made a crime.” (Emphasis added.)
This instruction is substantially the same as PIK Crim. 3d 58.11 except that the pattern instruction does not contain the italicized portion of the given instruction.
The defendant argues that the instruction fails to alert the jury as to the intent necessary with regard to shaking. She contends that the language of the instruction, including the last paragraph, “suggest that no particular intent is required beyond the intent to ‘hit’ or ‘hurt.’ ” However, the instruction given informed the jury that to commit the crime of abuse of a child, the defendant must have cruelly beaten, inflicted cruel and inhuman bodily punishment upon, or have shaken Shayleen Carr in a manner which resulted in great bodily harm. Moreover, Instruction 6 stated in part:
“In order for the defendant to be guilty of murder in the first degree the State need not prove that the defendant intended to bill Shayleen N. Carr. However, the State must prove that her conduct in committing abuse of a child was intentional. Intentional means willful and purposeful and not accidental.”
This instruction made clear that the beating, punishment, or shaking must have been intentional and not accidental.
We have held:
“When reviewing challenges to jury instructions, the instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.” State v. Aikins, 261 Kan. 346, Syl. ¶ 25, 932 P.2d 408 (1997).
The instructions as given, taken together, adequately informed the jury as to the elements of abuse of a child. The last paragraph added to the PIK instructions by the district court was probably unnecessary in that the PIK instruction was alone sufficient. Nevertheless, the added paragraph was a correct statement of the law. See Hupp, 248 Kan. at 653. The instructions as given were not clearly erroneous.
The defendant also contends that the instructions given failed to require jury unanimity in that some jury members may have found that the defendant intentionally cruelly beat Shayleen, other members might have found that she intentionally inflicted cruel and inhuman bodily punishment upon Shayleen, and still others might have found that she intentionally shook Shayleen.
The defendant’s argument ignores the distinction we made in State v. Timley, 255 Kan. 286, 875 P.2d 242 (1994), between a multiple acts case and an alternative means case:
“ ‘In an alternative means case, where a single offense may be committed in more than one way, there must be jury unanimity as to guilt for the single crime charged. Unanimity is not required, however, as to the means by which the crime was committed so long as substantial evidence supports each alternative means. [Citations omitted.] In reviewing an alternative means case, die court must determine whether a rational trier of fact could have found each means of committing the crime proved beyond a reasonable doubt. [Citations omitted.]
“ ‘In multiple acts cases, on the other hand, several acts are alleged and any one of them could constitute the crime charged. In these cases, the jury must be unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in multiple acts cases, we require that either the State elect the particular criminal act upon which it will rely for conviction, or that the trial court instruct the jury that all of them must agree that the same underlying criminal act has been proved beyond a reasonable doubt. [Citations omitted.]’ 110 Wash. 2d at 410. (Emphasis in original.)” 255 Kan. at 289-90.
The three methods outlined above by the defendant are alternative means by which child abuse may be committed. Where a single offense may be committed in more than one way, there must be jury unanimity as to the crime charged, but unanimity is not required as to the means by which the crime was committed so long as substantial evidence supports each alternative means. 255 Kan. 286, Syl. ¶ 1.
In this case, there was sufficient evidence for the jury to conclude that the defendant cruelly beat, inflicted cruel and inhuman bodily punishment on, and shook Shayleen. The defendant’s argument that the rule of jury unanimity was violated by the court’s instructions fails.
(3) ADMISSIBILITY OF HEARSAY STATEMENTS OF JARED CARR PRESENTED BY THE STATE
Four-year-old Jared Carr made statements to Adella Ozor, an SRS investigator, and Jenny McCracken, a registered nurse in the pediatric intensive care unit of Wesley. The defendant contends that the trial court’s admission of these statements was error.
Ozor interviewed Jared at his emergency foster home on September 8,1995, at approximately 2 p.m. the day after Shayleen was injured. She described Jared as concerned, excitable, and fidgety. Ozor explained to Jared that she was there to find out what had happened. When she asked if he and Shayleen slept in different bedrooms, Jared stated that Shayleen takes bad naps but he takes good naps, and that “Mama bumps our heads all the time” and when asked how, stated, “Mama throws Shayleen down on the floor a lot.” He then beat a doll on the floor several times, and when asked what Shayleen does he stated that she cries and that his mom slaps her across the face.
McCracken was the nurse caring for Shayleen. When Jared visited Shayleen on September 12, 1995, McCracken testified that Jared entered the room, approached Shayleen’s bed, and touched her. He sat on Shayleen’s bed, and someone explained to him that Shayleen was very sick and might not live. Jared nodded his head. He volunteered that children who die cannot play or run anymore. He then said, “[Ojh, God, I’m sorry.” McCracken offered to read Jared one of the books on Shayleen’s bed. As she read the book, he took a stuffed doll with a sunflower face and threw the doll on the floor. He then stated, “Look, the doll’s eyes did not roll back in its head.” McCracken then asked Jared if Shayleen’s eyes had rolled back in her head before she came to the hospital, and he indicated that they had. Later, he threw the doll to the floor again.
The State contends that the defendant failed to object at trial and therefore the issue of admissibility is not properly before us. The record supports this contention. A hearing outside the presence of the jury was held on whether Jared was competent to testify, and the court ruled that he was not. As a result, the court held a hearing at the request of the State as to whether certain hearsay statements could be admitted. After a thorough hearing, the court reserved ruling on the issue pending further consideration of the parties’ arguments and authorities. Three days later, the court ruled that the hearsay testimony was admissible under K.S.A. 60-460(d)(2) and (3). On the second day after the court’s ruling, the hearsay statements were introduced without the objection of the defendant.
At the time these statements were admitted at trial, no contemporaneous objection was made by the defendant. The defendant contends that her objection to the testimony was sufficientlynoted, citing State v. Bowman, 252 Kan. 883, 887-88, 850 P.2d 236 (1993). In Bowman, we held that a defendant satisfied the contemporaneous objection rule when he objected prior to the testimony and the testimony was then admitted directly afterward. 252 Kan. at 888. However, the facts in this case are quite different. Here, a full
2 days of trial elapsed before the State attempted introduction of the statements. We have held that the failure to timely object at trial to alleged hearsay statements precludes the defendant from raising the issue on appeal. State v. Stafford, 255 Kan. 807, 810-11, 878 P.2d 820 (1995). Moreover, we have held that when an unfavorable ruling on an evidentiary question is received prior to trial, the party must make a timely objection to such evidence when it is introduced at trial in order to preserve the issue for appeal. State v. Peckham, 255 Kan. 310, 327, 875 P.2d 257 (1994).
While we acknowledge that the ruling on admissibility of the hearsay statements occurred during rather than prior to trial, a full 3 days elapsed between the ruling and the actual introduction of the evidence. Under the circumstances, in the absence of a contemporaneous objection, the question of admissibility of the hearsay statements was not preserved for review and may be deemed to have been waived by the defendant.
(4) ADMISSIBILITY OF HEARSAY STATEMENTS OF TARED CARR PRESENTED BY THE DEFENDANT
The defendant also contends that the trial court erred in fading to admit the hearsay statement of Jared Carr concerning how Shayleen came to have black eyes. The defendant argues that this refusal constituted an abuse of discretion and further violated her constitutional right to due process.
The chain of events giving rise to the defendant’s argument are important to the resolution of this issue. During the testimony of Victoria Sweetwater, a famdy support worker called as a witness by the defendant, Sweetwater testified that on one occasion she had observed Shayleen with two black eyes. The defendant later at tempted to ask Jim Carr about what Jared told him regarding Shayleen’s black eyes. The State objected to Jared’s statement on hearsay grounds. The defendant’s attorney then stated, “I think it’s res gestae, Your Honor.” The trial court sustained the objection. However, Jim Carr was immediately thereafter allowed to testify that he found out that Shayleen had tripped on the new carpet and fallen, blackening both eyes.
The defendant now contends that the statements should have been admitted under K.S.A. 60-460(d)(2) or K.S.A. 60-460(d)(3). She may be correct in this assumption. However, whether or not she is correct that the statements were admissible, her argument fails that the failure to admit these statements requires reversal.
In this case, the statement at issue was one made by Jared, a witness who was unavailable. However, although the defendant asked that the statement be allowed, no reason was advanced for its admission. Further, the defendant did not proffer the contents of the statement, so it is very difficult to determine what effect the statement would have had on the outcome of the trial. In her reply brief, the defendant argues that such a proffer was unnecessary as the testimony immediately proceeding the attempted introduction of the hearsay statement made clear that the statement was that Shayleen got two black eyes in April when she tripped on the new carpet. If this is the case, then the issue is even easier. Immediately after the objection was sustained, the witness was asked, “Without telling us what Jared told you, did you find out what happened?” The witness was allowed to reply that he found out that Jared and Shayleen were running through the house and Shayleen had tripped on the new carpet and fallen headfirst. As a result, the substance of the hearsay statement was introduced to the jury and, therefore, any error in failing to introduce the exact statement itself was harmless.
Although the defendant contends that “the prejudice resulting from the exclusion was painfully obvious” in that if Jared’s statement had been allowed in to corroborate the statement of Jim Carr, there is a substantial probability that the jury would have decided the case differently, this argument ignores the fact that whether Jared made the statement or Jim Carr simply related what he had learned from Jared, the believability of the statement would still depend upon Jim Carr’s credibility. Further, it is clear from the questions and answers that Jim Carr was relating an explanation that he learned from Jared, and the admission of Jared’s actual statement was unnecessary. Under these circumstances, there was no prejudice to the defendant’s right to a fair trial.
(5) FAILURE TO INSTRUCT THE JURY ON LESSER DEGREES OF HOMICIDE
The evidence of the underlying felony in this case was strong. Dr. Lindall Smith testified that the severity of Shayleen’s injury was comparable to that injury which would occur from being thrown headfirst through a car window or being thrown from a car in an accident. The defendant’s theory was that she only spanked Shayleen and shook Shayleen but that she did not do either with sufficient force to cause the injury. Although the defendant contends on appeal that the evidence shows simply that this was a onetime occurrence where the defendant lost control, there is no evidence that the injuries inflicted on Shayleen were not the product of intentional battering or shaking.
Recently, in the case of State v. Heath, 264 Kan. 557, 572, 957 P.2d 449 (1998), we reaffirmed the rule in Kansas regarding this issue:
“The rule in Kansas with regard to felony murder is that the juiy need not be instructed on lesser offenses unless evidence of the underlying felony is weak and inconclusive. State v. Altum, 262 Kan. 733, 738-39, 941 P.2d 1348 (1997). In Altum, the defendant was convicted of felony murder from an underlying count of abuse of a child in the beating death of a 14-month-old child. Altum contended that the jury should have been instructed on lesser included offenses. We noted that the only intent required for the offense of abuse of a child is the act of hitting or hurting; the type and nature of the injuries did not permit a reasonable conclusion that the injuries were accidentally inflicted and the only question was, therefore, who had abused the child. 262 Kan. at 737-38.”
The record supports a conclusion that the evidence regarding the crime of child abuse was notweak, inconclusive, or conflicting. The defendant’s claim fails.
(6) AUTOPSY PHOTOGRAPHS
The defendant claims that the photographs were unnecessary, cumulative, repetitious, and gruesome, and served no purpose other than to inflame the passions and prejudices of the jury.
The admission of photographs in a homicide case is a matter within the trial court’s discretion, and the court’s ruling will not be disturbed on appeal absent a showing of abuse of that discretion. State v. Reed, 256 Kan. 547, 557, 886 P.2d 854 (1994). While photographs which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence, demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue. 256 Kan. at 557.
We have held that special care should be taken in admitting photographs taken after a pathologist has intervened in order that the evidence not be more gruesome than necessary. See State v. Prouse, 244 Kan. 292, Syl. ¶ 1, 767 P.2d 1308 (1989). In State v. Boyd, 216 Kan. 373, 377-78, 532 P.2d 1064 (1975), we held that trial court abused its discretion in admitting a photograph of the victim “laid out like a disemboweled beef in a packing plant,” where such a photograph was repetitious and cause of death was not in dispute. However, it is well settled that photographs which serve to illustrate the nature or extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death. State v. Spears, 246 Kan. 283, 286, 788 P.2d 261 (1990).
The trial court was keenly aware of the balancing test at issue and admitted the photographs, which are admittedly gruesome, only after a thorough hearing at which the court required Dr. Nashelsky to explain why each photograph was necessary. Under the circumstances, we conclude that the trial court’s decision to admit the photographs was not one with which no reasonable person would agree, and therefore the trial court did not abuse its discretion in so admitting the autopsy photographs.
(7) PRIOR ACTS OF THE DEFENDANT TOWARDS SHAYLEEN CARR AND JARED CARR
The defendant next contends that the trial court erred in allowing evidence of the defendant’s prior discipline of Jared and Shay leen. She argues that this evidence was improper evidence of prior bad acts and violated her right to due process.
K.S.A. 60-455 states:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
The trial court admitted the evidence on the theory that it was admissible independent of K.S.A. 60-455 to show the relationship between the defendant and the victim. We have held that evidence of prior acts of a similar nature between the same parties is admissible independent of K.S.A. 60-455 where the evidence is not offered for the purpose of proving distinct offenses but rather to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witness as to the act charged. State v. Jones, 247 Kan. 537, 547, 802 P.2d 533 (1990); State v. Crossman, 229 Kan. 384, 387, 624 P.2d 461 (1981).
“The primary test for determining whether evidence is admissible independently of K. S. A. 60-455 is its relevancy to the issue in question. Relevancy is more a matter of logic and experience than of law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence or if it has any tendency in reason to prove any material fact.” State v. Sexton, 256 Kan. 344, Syl. ¶ 1, 886 P.2d 811 (1994).
The admission of evidence independent of K.S.A. 60-455 is entrusted to the sound discretion of the trial court and will not be overturned absent a clear showing of abuse of that discretion. 256 Kan. 344, Syl. ¶ 2.
The defendant advances two reasons why the evidence is inadmissible. She contends that it is inadmissible because the evidence of prior disciplinary actions taken shows that those instances were not similar to the one which caused death. She argues that the prior instances consisted only of pinching or spanking. However, it is clear that the prior instances established the continuing course of conduct between the parties with regard to discipline and that the defendant reacted angrily in situations of discipline with the children. As a result, the evidence was sufficiently similar to be relevant to establish the pattern or practice of the defendant with regard to discipline and that such discipline tended to be harsh or violent.
The defendant also contends that even if testimony of her disciplinary actions toward Shayleen was properly admitted, the court erred in allowing testimony of her disciplinary actions toward Jared. She argues that while we recognized in Jones that the continuing course of conduct between a defendant and victim might be relevant, Jared is a third party rather than the victim of the crime.
In State v. McClanahan, 254 Kan. 104, 118, 865 P.2d 1021 (1993), we noted in discussing evidence admissible independent of K.S.A. 60-455 that “[t]here may be cases involving a third-party victim where evidence of a discordant relationship would be relevant and therefore admissible,” although we found the evidence in that case to be inadmissible. In Sexton, we held that it was a close question as to whether evidence of a defendant’s sexual bondage activity with his former wife was admissible, mainly because the evidence was not relevant in that the defendant had already admitted bondage activity with the victim, a later girlfriend. 256 Kan. at 350-51.
In this case, evidence of the defendant’s disciplinary actions toward Jared were highly relevant to show her pattern of discipline towards both the children. In each instance, her discipline of the children was the same and tended toward anger and harsh punishment for minor infractions. Her actions toward Jared were part and parcel of her relationship with Shayleen. As a result, the relevance of the evidence was much greater than the evidence of actions toward a third party in either McClanahan or Sexton. Under the circumstances, it cannot be said that the trial court abused its discretion in admitting the evidence.
(8) CUMULATIVE ERROR
We have recognized that cumulative trial errors may be so great as to require reversal of a defendant’s conviction. See State v. Cas toreno, 255 Kan. 401, 411, 874 P.2d 1173 (1994). The test is whether the totality of circumstances substantially prejudiced the defendant and denied him or her a fair trial. 255 Kan. at 411. However, based upon our resolution of each issue raised by the defendant in this case, we conclude there is no cumulative error.
(9) SUFFICIENCY OF THE EVIDENCE
Where the sufficiency of the evidence is challenged in a criminal matter, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Claiborne, 262 Kan. 416, Syl. ¶ 5, 940 P.2d 27 (1997).
The evidence, taken in a light most favorable to the State, showed that the defendant spanked and shook Shayleen, that she was the only person present when Shayleen was injured, that the injuries to Shayleen were consistent with physical abuse and could not have been sustained from a fall from bed as the defendant maintained, and that Shayleen died of those injuries. From this evidence, a rational factfinder could have found beyond a reasonable doubt that the defendant committed the crime of abuse of a child and as result of that crime, Shayleen died.
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|
The opinion of the court was delivered by
Luckert, J.:
Aldena M. Rose, surviving spouse of Lyle Rose, and Marilyn A. Corr, Executor of the Estate of Lyle Rose, deceased (hereinafter jointly referred to as Rose), plaintiffs in this wrongful death action, appeal the trial court’s order allowing Via Christi Health System, Inc. (Via Christi), a postverdict offset or credit against its share of the jury award for medical expenses. An opinion was filed in this case on October 31, 2003. Rose v. Via Christi Health System, Inc., 276 Kan. 539, 78 P.3d 798 (2003). We granted a motion for rehearing and, after consideration of the additional briefs and oral arguments, modify our previous opinion. We affirm the trial court’s decision to allow the credit against the damages award and, since we find in Via Christi’s favor on that issue, do not reach Via Christi’s cross-appeal which raised an alternative argument to be considered if the trial court was reversed on the first issue.
Facts
Lyle Rose, while being treated at Via Christi, fell out of bed and hit his head. After the fall, Lyle continued to be treated at Via Christi, primarily in the intensive care unit, for a subdural hematoma and other injuries resulting from his fall. He remained in the hospital until his death approximately 1 month later. Via Christi billed Lyle and his primary insurer, Medicare, for the full cost of Lyle’s treatment resulting from the injuries sustained when Lyle fell. Medicare paid approximately $83,000 but did not pay approximately $154,000 of the amount Via Christi had billed.
Prior to trial, Via Christi filed a motion in limine seeking to limit evidence of medical expenses to the amount actually paid by Medicare. The trial court denied Via Christi’s motion, finding that the collateral source rule applied. The court determined that tire rationale of Bates v. Hogg, 22 Kan. App. 2d 702, Syl. ¶ 5, 921 P.2d 249, rev. denied 260 Kan. 991 (1996), which held that Medicaid write offs were not a collateral source, did not apply to the Medicare write offs. The trial court admitted into evidence the full amount of the Via Christi billings.
A jury found Via Christi to be 36 percent at fault and awarded total damages of $582,186.01, including $261,422.46 in medical expenses. Via Christi’s portion of the judgment totaled $209,586.96.
Thereafter, Via Christi filed a motion to offset the $209,586.96 judgment by the medical expenses Medicare did not pay or, alternatively, to offset Via Christi’s proportionate share of the medical expenses portion of the judgment ($94,112.09) by the amount Medicare did not pay (approximately $154,000). Following a hearing, the trial court granted Via Christi’s motion, allowing Via Christi to offset the award by $94,112.09, its pro rata share of the medical expenses damages award. Rose appealed, and the matter was transferred to this court pursuant to K.S.A. 20-3018(c).
First, Rose argues that the trial court erred because there is no law to support its decision. Rose correctly notes the trial court’s failure to cite to any authority. However, such a failure does not make a decision reversible. If a trial court reaches the right result, its decision will be upheld even though the trial court relied upon the wrong ground or assigned erroneous reasons for its decision. The reason given by the trial court for its ruling is immaterial if the result is correct. See Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 239, 32 P.3d 705 (2001).
For her second argument, Rose claims that the trial court’s decision is wrong because it abrogates Medicare’s right to subrogation. This argument is without merit. Rose fails to explain how the trial court abrogates Medicare’s rights when nothing in its decision addresses Medicare’s right to subrogation. Via Christi does not seek to diminish Rose’s recovery by that portion of the juiy verdict representing the amount paid by Medicare, $82,862.99, which is the amount subject to Medicare’s subrogation claim.
Next, Rose contends that the trial court’s decision violates federal law. If a trial court’s ruling does conflict with federal law, its ruling is without effect under the Supremacy Clause of the United States Constitution. See U.S. Const. art. VI, cl. 2; Jenkins v. Amchem Products, Inc., 256 Kan. 602, 607, 616-17, 886 P.2d 869 (1994), cert. denied 516 U.S. 820 (1995) (holding that common-law actions based on inadequate labeling or failure to warn are preempted by the Federal Insecticide, Fungicide & Rodenticide Act.
The statute which Rose argues conflicts with the trial court’s ruling is 42 U.S.C. § 1395cc(a)(1)(A)(i) (2000), often referred to as tire Medicare limiting charge statute, which provides in pertinent part:
“(a)(1) Any provider of services . . . shall be qualified to participate under this subchapter and shall be eligible for payments under this subchapter if it files with the Secretary an agreement—
“(A)(i) not to charge, except as provided in paragraph (2), any individual or any other person for items or services for which such individual is entitled to have payment made under this subchapter . . . .”
If a Medicare health care provider violates the agreement not to charge patients, the United States Secretary of Health and Human Services may terminate or refuse to renew the provider’s Medicare contract. 42 U.S.C. § 1395cc(b)(2)(A) (2000). The provision applies to payments made by Medicare under subchapter 18 of the Social Security Act, which includes both primary and secondary payments.
Rose argues that, in effect, the trial court’s order allowed Via Christi to “charge” Rose. Thus, we are required to interpret 42 U.S.C. § 1395cc(a)(1)(A)(i) and determine whether a credit against a damages award in an amount equal to the charges for services provided to a plaintiff by a defendant and for which the defendant has received no reimbursement is a “charge” prohibited by the Medicare statute.
Statutory interpretation is a question of law, and our review is unlimited. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
“The fundamental rule [of statutory construction] to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained, and when a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998). Where the face of the statute leaves its construction uncertain, the court may look to the historical background of the enactment, the circumstances attending its passage, tire purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citation omitted.]” Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001) (citing In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 [1998]). Words and phrases that have acquired a peculiar and appropriate meaning in law are to be construed accordingly. Galindo v. City of Coffeyville, 256 Kan. 455, 465, 885 P.2d 1246 (1994).
Applying these rules, we begin the analysis by determining what Congress intended when it stated a provider may not “charge” a beneficiary with an unreimbursed amount. The word “charge” has a particularized meaning, the effect of which is to constrain a provider’s ability to treat the unreimbursed expenses as a debt of the beneficiary. See Black’s Law Dictionary 227 (7th ed. 1999) (“charge” means “to impose a lien or claim; to encumber” or “to demand a fee; to bill”). However, as other courts have concluded, the Medicare statute does not specifically address situations where the provider seeks reimbursement in ways other than treating the amount as a debt of the beneficiary. See, e.g., Joiner v. Medical Center East, Inc., 709 So. 2d 1209, 1221 (Ala. 1998) (health care provider can assert lien against injured party’s settlement where liability insurer was primary to Medicare); Smith v. Farmers Ins. Exchange, 9 P.3d 335, 341 (Colo. 2000) (health care provider entitled to reimbursement from primary insurance, including amounts required by Medicare to be “written off’).
In this case, the trial court’s order adjusted the verdict to reflect the measure of damages to which Rose was entitled under Kansas law and was not, in a technical sense, a “charge” where the amount was treated as a debt owed by Rose. The basic principle of damages is to make a party whole by putting the party back in the same position as if the injury had not occurred, not to grant a windfall. State ex rel. Stephan v. Wolfenbarger & McCulley, P.A., 236 Kan. 183, Syl. ¶ 4, 690 P.2d 380 (1984); see 25 C.J.S., Damages § 3, pp. 627-29 (quoted in Ingram v. Howard-Needles-Tammen & Bergendoff, 234 Kan. 289, 303, 672 P.2d 1083 [1983] [Schroeder, C.J., dissenting]).
If a defendant has paid the loss in some way, the defendant should not be required to pay again. This principle is adopted in the Restatement (Second) of Torts § 920A (1977), which this court found consistent with Kansas common-law principles. Harrier v. Gendel, 242 Kan. 798, 800, 751 P.2d 1038 (1988). The Restatement (Second) of Torts § 920A provides:
“(1) A payment made by a tortfeasor or by a person acting for him to a person whom he has injured is credited against his tort liability, as are payments made by another who is, or believes he is, subject to tire same tort liability.
“(2) Payment made to or benefits conferred on the injured party from other sources are not credited against the tortfeasor’s liability, although they cover all or a part of the harm for which the tortfeasor is hable.”
Consistent with the rule stated in the Restatement (Second) of Torts § 920A(1), in Hustead v. Bendix Corp., 233 Kan. 870, 877-78, 666 P.2d 1175 (1983), this court considered the effect of a partial payment of damages predicated upon possible tort liability. The court held that the advance or partial payment was not admissible into evidence under K.S.A. 40-275. The court continued, stating: “Such a payment constitutes a credit and may be deducted from any settlement or final judgment rendered.” 233 Kan. at 878.
In this regard, it is important to note that the Restatement (Second) of Torts § 920A(1) and our statements of the rule speak of the tortfeasor being allowed a “credit” rather than an “offset” for the damages paid. The distinction, though seemingly minor, is technically very important. “The right of setoff (also called ‘offset’) allows entities that owe each other money to apply their mutual debts against each other, thereby avoiding ‘the absurdity of making A pay B when B owes A.’ Studley v. Boylston Nat. Bank, 229 U.S. 523, 528 (1913).” Citizens Bank of Maryland v. Strumpf, 516 U.S. 16, 18, 133 L. Ed. 2d 258, 116 S. Ct. 286 (1995). Compare that situation to a circumstance where a tortfeasor gratuitously provides a benefit to the plaintiff; the plaintiff owes no debt. The tortfeasor could not “charge” the victim or seek an offset for the gratuitous service. Yet, the tortfeasor is entitled to a credit for the benefits which the tortfeasor conferred upon the plaintiff. See Restatement (Second) of Torts § 920A, comments a, b, and c (1977). Thus, application of this principle is not the equivalent of treating the amount of the write off as a debt of the plaintiff but as an appropriate measure of recoverable damages. We see no reason that the result should differ because the adjustment was made postverdict by the trial court, since the parties do not take issue with the procedural aspect of the ruling and the ultimate result is that the amount recovered by Rose appropriately reflects the correct measure of damages under the circumstances of this case.
The other aspect of the Restatement (Second) of Torts § 920A(2), the collateral source rule, is raised by the parties, largely as a carryover of arguments related to the cross-appeal and in response to the various amici curiae that focus upon the issue of whether all amounts paid by Medicare or, more narrowly, the amount of the Medicare write off should be considered a collateral source. The collateral source rule in Kansas, which is consistent with the Restatement (Second) of Torts § 920A, is stated as follows:
“At common law, the collateral source rule prevented the jury from hearing evidence of payments made to an injured person by a source independent of the tortfeasor as a result of the occurrence upon which die personal injury action is based. The court has stated the rule as follows: ‘Under the “collateral source rule,” benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.’ Farley v. Engelken, 241 Kan. 663, Syl. ¶ 1, 740 P.2d 1058 (1987).” (Emphasis added.) Thompson v. KFB Ins. Co., 252 Kan. 1010, 1014, 850 P.2d 773 (1993).
See Gregory v. Carey, 246 Kan. 504, 508, 791 P.2d 1329 (1990); Wentling v. Medical Anesthesia Services, 237 Kan. 503, 515, 701 P.2d 939 (1985); Allman v. Holleman, 233 Kan. 781, Syl. ¶ 8, 667 P.2d 296 (1983); Pape v. Kansas Power & Light Co., 231 Kan. 441, 446, 647 P.2d 320 (1982); Southard v. Lira, 212 Kan. 763, 768-70, 512 P.2d 409 (1973); Rexroad v. Kansas Power & Light Co., 192 Kan. 343, 354-55, 388 P.2d 832 (1964).
Under the facts of this case, the source of the $154,000 of medical services not reimbursed by Medicare was Via Christi, the tortfeasor, not an independent source. The trial court admitted into evidence the full amount Via Christi billed, and the jury awarded the amount as damages. The value of those services represents a cost incurred by Via Christi and not reimbursed by Medicare. The Medicare program is structured upon a prospective payment system under which health care providers that agree to accept primary payment from Medicare are reimbursed on a flat fee basis determined by average cost and length of stay for various diagnostic related groups (DRG). If a provider s actual cost falls below the DRG amount, it keeps the difference; if the providers actual cost exceeds the DRG amount, the provider absorbs or writes off the loss. Under the secondary payer statutes, the costs are limited to costs that are reasonable and customary. See 42 U.S.C. § 1395f (2000). The expenses Via Christi incurred in treating Rose exceeded the DRG amounts. This could be because of several factors, including the fact his length of stay was longer and his course of treatment more difficult than the normal or because Via Christi’s costs are higher than other hospitals. Regardless of the reason, the amounts exceeded the DRG amounts. The trial court allowed these expenses into evidence, and the jury awarded the expenses as part of the damages. The value of these services was contributed by Via Christi, not a collateral source.
This same analysis has been adopted by other courts under the fact situation where the defendant was the health care provider which provided posttort treatment. For example, in Moorhead v. Crozer Chester Med. Center, 564 Pa. 156, 765 A.2d 786 (2001), the plaintiff filed a malpractice action after she suffered a fall at the hospital. Treatment was provided by the hospital, and Medicare provided partial reimbursement. At issue was the amount not reimbursed by Medicare. Although the Pennsylvania Supreme Court stated several rationales, one included the inapplicability of the collateral source rule: “Additionally, we find that the collateral source rule is inapplicable to the additional amount of $96,500.91. The rule provides that payments from a collateral source shall not diminish the damages otherwise recoverable from the wrongdoer.’ [Citations omitted.]” 564 Pa. at 164. After discussion of the Medicare write off in the amount of $96,500.91, the court stated: “See Restatement (Second) of Torts § 920A(2). . . . Appellant did not pay $96,500.91, nor did Medicare or Blue Cross pay that amount on her behalf. The collateral source rule does not apply to the illusory ‘charge’ of $96,500.91 since that amount was not paid by any collateral source.” 564 Pa. at 165.
Similarly, the Georgia Court of Appeals in Candler Hosp. v. Dent, 228 Ga. App. 421, 491 S.E.2d 868 (1997), applied the collateral source rule to portions of the medical bills paid by Medicare but allowed the hospital a credit for those amounts written off:
“[I]n the event that the plaintiff recovers a special verdict that awards damages for medical expenses previously written off by the defendant, the defendant is entitled to a set-off or credit against the specific award of medical expenses in the verdict prior to the entry of the judgment in die amount of any write-off that the defendant made to the total medical expenses. If the jury malees no award of medical expenses as damages or there is a general verdict, then it would not be ascertainable whether such special damages for medical expenses were awarded and the defendant would not be entitled to a set-off against a general verdict for damages.
“Georgia, as part of its common law and public policy, has always prohibited a plaintiff from a double recovery of damages; the plaintiff is entitled to only one recovery and satisfaction of damages, because such recovery and satisfaction is deemed to make the plaintiff whole. Where damages are special and ascertainable and the defendant or its privies, indemnitor, or insurers have paid the medical expenses prior to judgment, in whole or in part, a set-off against such special damages, specifically identified and awarded in the verdict, is mandated to prevent a double recovery. [Citations omitted.] ‘An injured person can have but one satisfaction for his injuries; and therefore the amount paid by the tortfeasor . . . will be regarded as a satisfaction pro tanto as to the joint tortfeasors.’ [Citation omitted.] Thus, plaintiff can recover from the jury all special damages provable, but cannot receive in judgment again what has already been paid by the defendant or on the defendant’s behalf by an insurer.” 228 Ga. App. at 422-23.
The rationale of the Georgia court parallels Kansas common law regarding damages.
Such cases reject the argument that the plaintiff has contracted for a double recovery. For example, in Williamson v. St. Francis Medical Center, 559 So. 2d 929 (La. App. 1990), the trial court applied a rule that the plaintiff should receive damages in the full amount of the bill, not just as reimbursed. On appeal, the court decided the case on other grounds and stated:
“However, in the present case, the hospital, to whom the bill was owed, was also a tortfeasor. Thus, the benefit to the plaintiffs of the contractual adjustment results from the procuration or contribution’ of the tortfeasor. As a result, we will not allow the plaintiffs to recover for the amount contractually adjusted, or can-celled, by the hospital tortfeasor.” 559 So. 2d at 934.
Other cases, although not factually similar, distinguish such holdings, recognizing that the analysis is unique to the situation where the defendant is both the tortfeasor and the health care provider for the injuries resulting from the tort. The District of Columbia Court of Appeals, in Hardi v. Mezzanotte, 818 A.2d 974, 985 (D.C. 2003), discussed and distinguished Moorhead because in Hardi the Medicare provider was not the tortfeasor:
“Since the [Pennsylvania Supreme Court in Moorhead] allowed plaintiffs damages for the amount actually paid to the medical facility, and the facility itself provided services in the greater amount, it is fair to say that the medical facility actually made plaintiff whole for the full amount of the claimed medical expenses. It was die tortfeasor’s contract that accounted for this result, not tire plaintiff s, as far as we can tell.”
In a footnote, the Hardi court further stated:
“It is worth noting again here that in this jurisdiction, the collateral source rule is applicable when payment comes from a source wholly independent of the tortfeasor or when plaintiff ’contracts] for the prospect of double recovery.’ [Citation omitted.] It does not appear that the facts in Moorhead would meet these tests.” 818 A.2d at 985 n.5.
As these cases note, the Medicare scheme is not one where the beneficiary contracts for double recovery. Most notably, Medicare has a right of subrogation allowing it to seek recovery of amounts paid to a beneficiary. 42 U.S.C. § 1395y(b)(2)(B)(iii) (2000). Medicare’s subrogation right includes the right to seek reimbursement from a beneficiary’s settlement with a liability insurer or other third-party payer. 42 U.S.C. § 1395y(b)(2)(B). Additionally, 42 C.F.R. § 411.35 (2004) allows the Medicare provider to “collect or seek to collect, for the Medicare-covered services from the beneficiary or any entity” (emphasis added) those amounts paid by a workers compensation plan, a no fault insurer, or an employer health plan as the primary insurer. “If this amount exceeds the amount payable by Medicare (without regard to deductible or coinsurance), the provider or supplier may retain the third party payment in full without violating the terms of the provider agreement or conditions of assignment.” 42 C.F.R. § 411.35(c)(1). Further, the provider, although it cannot assert a hen against liability insurance, may look to an insurer for primary payment where prompt payment is expected. See 42 U.S.C. § 1395y(b)(2)(A)(ii); 42 C.F.R. § 411.50 (2004).
Although the provisions of 42 C.F.R. § 411.35 and 42 C.F.R. § 411.50 do not apply to the portion of the judgment at issue, which does not include the $83,000 against which Medicare does have a subrogation claim, these provisions and Medicare’s right of subrogation against the award reflect Congress’ attempt to strike a balance between protecting beneficiaries and saving money for the Medicare system. Joiner, 709 So. 2d at 1216-17. The legislative and regulatory scheme, although designed to assure a full recovery of the beneficiary’s out-of-pocket expenses such as deductibles and coinsurance and to maximize any settlement, is not established to determine a plaintiff s measure of damages or the recoverability of damages. Rather, the scheme contemplates that the Medicare beneficiary and the health care provider should be made whole or nearly whole through any third-party payments.
Not only does this scheme demonstrate that the “charge” or credit amount should not be treated as a collateral source under the facts of this case where the defendant was the provider of the services, it also demonstrates a legislative intent which is consistent with the trial court’s ruling and our determination that the ruling did not violate 42 U.S.C. § 1395cc(a)(1)(A)(i).
Thus, we conclude that under the facts of this case, specifically where the Medicare provider, Via Christi, is the defendant and also the health care provider of the services which form the basis of the economic damages claim, the trial court did not err in allowing a setoff or credit against the portion of the economic loss attributable to medical expenses in the amount of the Medicare write off, an amount not paid by the plaintiff, Medicare, or any third party, and which reflected a cost incurred by the defendant. The trial court’s ruling is a correct application of Kansas law and is not prohibited by the Medicare limiting charge statute, 42 U.S.C. § 1395cc(a)(1)(A)(i).
Because we are affirming the trial court’s ruling, we do not reach the issue on the cross-appeal of whether evidence of medical charges that are written off by a health care provider pursuant to a contract with Medicare is admissible at trial as evidence of eco nomic damages. Thus, we do not reach the broader issue of whether Medicare or a Medicare write off, when the services are provided by a health care provider that is not a defendant, is a collateral source. We recognize that this issue has a broader application than the narrow holding we reach today, which is limited to the relatively rare factual situation of a tortfeasor providing the posttort medical treatment which underlies the economic loss. However, given the nature of the trial court’s ruling and tire unique facts of this case, the broader issue is not before us and, therefore, we refrain from reaching it.
Affirmed.
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The opinion of the court was delivered by
Larson, S.J.:
In these three appeals, we must decide if a licensee desiring to appeal to the district court from the administrative suspension of his or her driver’s license must serve the Secretary of Revenue with a summons as is specifically required by K.S.A. 8-1020(o).
This issue raises the larger and overriding question of the applicability of the Code of Civil Procedure, K.S.A. 60-101 et seq., to appeals being taken under the authority of the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq.
Finally, if we decide a summons must be served and the Code of Civil Procedure applies, we must then determine if the filing of an answer to a licensee’s petition by the Kansas Department of Revenue (KDR) without raising the contention of insufficiency of process or service of process waives such a defense.
Factual and Procedural Background
The KDR suspended the driver’s license of Carolyn Pieren-Abbott for 1 year when she refused to submit to alcohol intoxication testing. She filed a petition for review of the KDR decision with the Sedgwick County District Court.
The KDR also suspended the driver’s licenses of Michael K. Day and Tony D. Earlywine based on their failure of alcohol intoxication testing. Day and Earlywine filed petitions for review of the KDR decisions with the Riley County District Court.
Pieren-Abbott served the KDR with a copy of the petition for review by certified mail but did not serve the Secretary of Revenue or KDR with a summons or apply for an extension of the time to serve a summons. The KDR answered Pieren-Abbott’s petition within 30 days of its filing but did not raise her failure to serve a summons on the Secretary of Revenue as a defense. Several months later, at the pretrial conference, the KDR requested leave to amend its answer to allege Pieren-Abbott failed to serve the Secretary of Revenue or KDR with a summons. The district court did not rule on the request, but the KDR filed a brief arguing the issue. Following a hearing, the district court dismissed Pieren-Abbott’s petition for lack of jurisdiction. Pieren-Abbott appealed to the Court of Appeals.
Day and Earlywine served the KDR by mail. Within 21 days of the filing of each petition for review, the KDR filed an answer in each case asserting that neither Day nor Earlywine had served a summons on the Secretary of Revenue or KDR. Over 3 months after the petitions were filed and subsequent to the pretrial conference, both licensees served summonses on tire KDR. Following briefing and a hearing, the district court dismissed both petitions for lack of jurisdiction. Day and Earlywine appealed to the Court of Appeals.
The Court of Appeals consolidated all three appeals and reversed both district courts, finding K.S.A. 8-1020(o) does not require service of a summons. Pieren-Abbott v. Kansas Dept. of Revenue, 32 Kan. App. 2d 763, 88 P.3d 1236 (2004).
We granted KDR’s petition for review of all three cases.
Court of Appeals’ Opinion and Contentions of the Parties
The arguments of the licensees before the Court of Appeals were basically similar. They argued: (1) The Code of Civil Procedure is not controlling in agency actions taken under the KJRA; (2) the commencement of the appeal is governed by the KJRA and, therefore, the lack of a summons does not affect jurisdiction; (3) the KDR has waived any procedural defects by its actions in all three appeals; and (4) requiring the service of a summons in a KJRA matter is compelling the performance of a futile act.
The KDR answered each of these contentions but principally argued that courts are required to follow the plain wording of K.S.A. 8-1020(o) that after July 1, 2001, requires that an appealing licensee “shall serve the secretary of revenue with a copy of the petition and summons.” (Emphasis added.) KDR argued the inclusion of this mandatory language when a summons had not previously been required was a change in the law that must be recognized and followed.
As to the applicability of Chapter 60, the KDR pointed to Pittsburg State University v. Kansas Bd. of Regents, 30 Kan. App. 2d 37, 36 P.3d 853 (2001), rev. denied 273 Kan. 1036 (2002), where provisions of the Code of Civil Procedure were utilized to supplement the KJRA where necessary. The KDR noted Claus v. Kansas Dept. of Revenue, 16 Kan. App. 2d 12, 825 P.2d 172 (1991), which held that service requirements under the KJRA are mandatoiy and petitioners must strictly comply with them. The KDR argued it had not waived the defect of failure to serve a summons as the law required and that the specific statute, K.S.A. 8-1020(o), which requires a summons to be served, was a specific provision governing over any general enactments.
In its Pierren-Abbott decision, the Court of Appeals concluded that K.S.A. 8-1020(o) is inconsistent between its first line, which does not require a summons, and its second fine, which does. The Court of Appeals further determined that K.S.A. 8-1020 is inconsistent with its own internal reference to other statutes like K.S.A. 8-259, K.S.A. 77-610, K.S.A. 77-613, K.S.A. 77-614, andK.S.A. 77-615 because none of these statutes require a summons. Although K.S.A. 8-1020(p) specifically provides that “[t]o the extent that this section and any other provision of law conflicts, this section shall prevail,” the Court of Appeals concluded that 8-1020(o) was inconsistent and did not apply the section as written to effect its mandate requiring a summons to be served on the Secretary of Revenue. 32 Kan. App. 2d at 767-69.
The Court of Appeals relied on the legislative history to support its conclusion that K.S.A. 8-1020(o) does not require a summons. Noting that the legislature intended to enact harsher criminal and administrative penalties for those who drive under the influence of alcohol or drugs, the Court of Appeals stated that the inclusion of only one word, “summons,” was not meant to change the jurisdic tional requirements for reviewing an administrative decision to suspend a driver s license. The Court of Appeals further supported its conclusion by finding that K.S.A. 8-1020(o) requires a futile act because there is no purpose for serving a summons in judicial review proceedings. 32 Kan. App. 2d at 768. Finally, the Court of Appeals held that, absent a clear statement of intent to require a summons to be served, it would not impose such a condition. 32 Kan. App. 2d at 769. The Court of Appeals did not mention tire licensee’s waiver argument.
With this history of the three cases prior to our granting of the petitions for review, we turn to die arguments necessaiy to resolve this appeal.
First we must decide whether K.S.A. 8-1020(o) requires a licensee to serve the Secretary of Revenue with a summons to initiate judicial review of the KDR’s decision to suspend his or her driver’s license.
This issue requires the interpretation of statutes, and we apply an unlimited standard of review. Appellate courts are not bound by the district court’s interpretation. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004). In malting our required interpretation, we are obligated to apply and follow rules of construction that govern our decision. We have stated:
“The fundamental rule of statutory construction to which all other rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed rather than determine what the law should or should not be.” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
“Ordinary words are to be given their ordinary meaning, and a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinaiy English language is in it. [Citation omitted.]” GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
“ When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.’ [Citation omitted.]” State v. Gordon, 275 Kan. 393, 405, 66 P.3d 903 (2003).
“General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling. [Citation omitted.]” In re Estate of Antonopoulos, 268 Kan. 178, 189, 993 P.2d 637 (1999).
“ ‘In construing statutes and determining legislative intent, several provisions of an act in pari materia must be construed together with a view of reconciling and bringing them into workable harmony if possible.’ [Citation omitted.]” State v. Huff, 277 Kan. 195, 203, 83 P.3d 206 (2004).
“As a general rule, statutes are construed to avoid unreasonable results. There is a presumption that the legislature does not intend to enact useless or meaningless legislation. [Citation omitted.]” In re M. R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002).
K.S.A. 8-1020 and K.S.A. 8-259 establish the district court’s jurisdiction over the review of an administrative decision to suspend a licensee’s driving privileges for failure or refusal of an alcohol intoxication test. K.S.A. 8-1020 is a comprehensive statute relating to the requirements and procedures for administrative hearings in cases of driver’s license suspensions. Subsections (a) through (n) provide in detail for hearing requests, discovery, witnesses, limitation of issues, hearings, and orders. These provisions were previously found in subsections (g), (h), (i), (j), (k), (1), and (n) of K.S.A. 2000 Supp. 8-1002. Subsection (o) grants authority for judicial review of the order entered, and subsection (p) sets forth further requirements for the review. In applicable part, these subsections state:
“(o) The bcensee may file a petition for review of the hearing order pursuant to K.S.A. 8-259, and amendments thereto. Upon filing a petition for review, the bcensee shall serve the secretary of revenue with a copy of the petition and summons. Upon receipt of a copy of the petition for review by the secretary, the temporary license issued pursuant to subsection (b) shall be extended until the decision on the petition for review is final.
“(p) Such review shall be in accordance with this section and the act for judicial review and civil enforcement of agency actions. To tire extent that this section and any other provision of law conflicts, this section shall prevail. The petition for review shall be filed within 10 days after the effective date of the order.”
The remaining portion of subsection (p) relates to venue, requires trial de novo, states the evidentiary rules of subsection (1) do not apply, and instructs the court to determine the petitioner’s driving privileges.
While there is no broadly stated reference to the usage of the Code of Civil Procedure in the review process, K.S.A. 8-1020(v) states:
“The provisions of K.S.A. 60-206, and amendments thereto, regarding the computation of time shall not be applicable in determining the time for requesting an administrative hearing as set out in subsection (a) but shall apply to the time for filing a petition for review pursuant to subsection (o) and K.S.A. 8-259, and amendments thereto. ‘Calendar day shall mean that every day shall be included in computations of time whether a weekday, Saturday, Sunday or holiday.”
K.S.A. 8-1020(o) references K.S.A. 8-259, which first outlines instances and situations not subject to review (not applicable here) and then states as to renewable suspensions:
“(a) . . . Such review shall be in accordance with tire act for judicial review and civil enforcement of agency actions. In the case of review of an order of suspension under K.S.A. 8-1001 etseq., and amendments thereto,... the petition for review shall be filed within 10 days after the effective date of the order and venue of the action for review is the county where the administrative proceeding was held or the county where the person was arrested. In all other cases, the time for filing the petition is as provided by K.S.A. 77-613, and amendments thereto, and venue is the county where the licensee resides.” K.S.A. 8-259.
The remaining provisions of K.S.A. 8-259 are strikingly similar to those of K.S.A. 8-1020(p), which were previously summarized.
With both K.S.A. 8-1020 and K.S.A. 8-259(a) referencing the KJRA, we will briefly review its provisions. K.S.A. 77-610 says judicial review is initiated by filing a petition in the appropriate court and payment of the docket fee. K.S.A. 77-614 provides the petition for review shall be filed with the clerk of the court and, within 30 days after service on the agency, a party may file an answer or other responsive pleading, which must be served on all parties to the proceedings.
K.S.A. 77-615 directs the petitioner for judicial review to serve a copy of the petition upon the agency head as required by K.S.A. 77-613(e), which allows for service by mailing, handing to the person to be served, or leaving it at that person’s principal place of business or residence. In addition, K.S.A. 77-603(b) states the KJRA creates only procedural rights and duties that are “in addition to those created and imposed by other statutes.”
New statutes have been more constantly amended than those dealing with suspensions of driver’s licenses. The right to appeal a suspension was first found in the 1937 session laws, L. 1937, ch. 73, sec. 26, which was the genesis of K.S.A. 8-259. The initial provision required an appeal within 30 days, vested jurisdiction in the district court, required 30 days’ notice to the commissioner of motor vehicles, and directed the court to determine the licensee’s status.
In 1949, the legislature determined that a person’s license could not be suspended pending the outcome of the appeal. L. 1949, ch. 104, sec. 31. However, in 1959, the legislature amended the statute, giving the district court discretion regarding whether the administrative decision to suspend or revoke a license should be stayed pending a final judgment by the district court. L. 1959, ch. 49, sec. 27.
In 1985, K.S.A. 8-259 was amended to specifically require appeals under K.S.A. 8-1001 et seq. to be filed within 10 days with a petition captioned with the licensee as plaintiff and the KDR as defendant. The amendment specifically stated: “Service of the petition shall be made on the department pursuant to K.S.A. 60-304(d) and amendments thereto. All subsequent filings and proceedings under this section and the contents of the petition shall be governed by the code of civil procedure.” L. 1985, ch. 47, sec. 1. This amendment further stated the trial on appeal shall be de novo and granted the licensee the right of a jury trial upon demand.
The following year most of the above language was stricken, and the cancellation, suspension, revocation, or denial of a person’s license was made subject to review in accordance with the KJRA. The appeal was required to be filed within 10 days for suspensions under K.S.A. 8-1001 et seq. and in all other cases as provided by K.S.A. 77-613. Venue was set in the county where the licensee resides; de novo review was continued, as was the right of trial by jury. L. 1986, ch. 318, sec. 16.
The right to a jury trial on appeal was deleted from K.S.A. 8-259 in 1988. L. 1988, ch. 47, sec. 10. Minor amendments were made in subsequent years, mainly relating to exceptions to appeal rights, with the present statute reading as set forth in L. 1994, ch. 353, sec. 3.
Although the legislature has not changed the language in K.S.A. 8-259 which allows the district court discretion in granting a stay of a license suspension pending its final decision, it has changed that process for suspensions due to intoxication testing refusals or failures under K.S.A. 8-1020(o). See L. 2001, ch. 200, sec. 1. When a licensee seeks judicial review of KDR’s decision to suspend his or her license based on an alcohol intoxication test refusal or failure, the temporary license issued by the officer upon arrest is automatically extended until the district court’s final decision. The district court no longer has discretion based on the licensee’s driving record or liability insurance for granting a stay of KDR’s suspension order. KDR must extend the temporary license upon receipt of the petition for review and summons. K.S.A. 8-1020(o). This notification by petition and summons establishes the necessity of mandatory action by KDR and is an additional justification for the service of a summons.
A district court’s authority to issue orders or judgments requires both subject matter jurisdiction and personal jurisdiction. See Watervew Resolution Corp. v. Allen, 274 Kan. 1016, 1023-24, 58 P.3d 1284 (2002). Subject matter jurisdiction is vested by statute and establishes the court’s authority to hear and decide a particular type of action. State v. Hall, 246 Kan. 728, 757, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003); Micheaux v. Amalgamated Meatcutters & Butcher Workmen, 231 Kan. 791, 795, 648 P.2d 722 (1982). Personal jurisdiction is the power over a defendant’s person which is required before a court can enter a personal or in personam judgment. Carrington v. Unseld, 22 Kan. App. 2d 815, 817, 923 P.2d 1052 (1996). Personal jurisdiction may only be acquired by issu anee and service of process as prescribed by statute or by voluntary appearance. Kansas Bd. of Regents v. Skinner, 267 Kan. 808, 812, 987 P.2d 1096 (1999); Haley v. Hershberger, 207 Kan. 459, 463, 485 P.2d 1321 (1971).
Clearly, subject matter jurisdiction exists over appeals from administrative suspensions of driving privileges under K.S.A. 8-259 and K.S.A. 8-1020(o).
However, in order for the district court to acquire personal jurisdiction over the appeal of an administrative appeal of a driver’s license suspension, the licensee must satisfy the statutory requirements. The first is to be timely, the second is to give statutorily required notification.
The specific statutorily required notification is that set forth in K.S.A. 8-1020(o). It mandates that “[u]pon filing a petition for review, the licensee shall serve the secretary of revenue with a copy of the petition and summons.” (Emphasis added.)
While our duty is to harmonize statutory requirements and the KJRA may have; prior to July 1, 2001, allowed service under K.S.A. 77-613(c) as directed by K.S.A. 77-615, those provisions no longer govern the manner of service of process in an appeal of a driver’s license suspension administrative order for an alcohol intoxication test refusal or failure. K.S.A. 8-1020(o) is the controlling statute and must be followed and given its clear meaning.
The rules of statutory construction, which are previously set forth, require such a decision on our part. We do so because:
1. The language is plain and unambiguous. See Williamson, 275 Kan. at 305.
2. Summons is an ordinary word which must be given its ordinary meaning. See GT, Kansas, L.L.C., 271 Kan. at 316.
3. Enactment of K.S.A. 8-1020(o) was a specific revision of existing law in K.S.A. 8-259, and the presumption is that the legislature intended to change the law as it existed prior to July 1, 2001. See Gordon, 275 Kan. at 405.
4. K.S.A. 8-1020(o) is a specific statute and if there is a conflict with the KJRA, the summons requirement of K.S.A. 8-1020(o) must control. See K.S.A. 8-1020(p); Estate of Antonopoulos, 268 Kan. at 189.
5. The commencement of the appeal must be accomplished under K.S.A. 8-1020(o), and the remainder of the proceedings shall be held as the KJRA directs. This amounts to reconciling the provisions and bringing them into workable harmony. See Huff, 277 Kan. at 203.
6. Reading the words “and summons” out of K.S.A. 8-1020(o) creates an unreasonable result. Requiring this language to be followed gives meaning and direction to legislative action. See In re M. R., 272 Kan. at 1342.
There is not an inconsistency between the first and second sentences of K.S.A. 8-1020(o). The first sentence grants the right of review, and the second sentence sets forth the required action (serving the Secretary of Revenue with a copy of the petition and a summons) for personal jurisdiction to be obtained over the appeal.
The language of K.S.A. 8-1020(p) that “[t]o the extent that this section and any other provision of law conflicts, this section shall prevail” must be given its" clear meaning. The statutory language requiring the issuance of a summons contained in K.S.A. 8-1020(o) is specifically stated to control. The lack of direction in K.S.A. 8-259 and different directions as to the commencement of an appeal in the KJRA must be deemed subservient to this specific statutory instruction. We resolve any conflict by requiring a summons to be issued as the controlling statute directs.
The precise issue we face has not previously been considered, but a somewhat similar appeal almost 20 years ago raised issues on which both the licensees and the KDR have relied. In re Gantz, 10 Kan. App. 2d 299, Syl., 698 P.2d 385, rev. denied 237 Kan. 887 (1985), held: “The commencement of an appeal in district court from the suspension of a driver s license under K.S.A. 8-259 does not require service of process upon the Attorney General; service upon the Department of Revenue pursuant to K.S.A. 60-205 is sufficient.”
The Gantz appeal was taken before there was any mention in K.S.A. 8-259 of the KJRA. The licensee had filed the appeal and mailed a copy to the Legal Services Division of the KDR. The KDR moved for dismissal, contending the petitioner had failed to obtain service of process on the Attorney General under K.S.A. 60-304(d)(5). The trial court agreed with the KDR and dismissed the appeal. The Court of Appeals reversed, stating K.S.A. 60-304(d)(5) did not apply and holding the petition for review under K.S.A. 8-259 is a “special proceeding” and not the commencement of a civil action. The Court of Appeals concluded that the mailing of the petition to the KDR pursuant to K.S.A. 60-205 was sufficient, with service of process not being required.
The licensees seize upon the language of Gantz that a driver s license suspension appeal is a special proceeding and argue they have complied with K.S.A. 60-205.
The KDR more persuasively points to the language of Gantz that states: “When the legislature intends to require service of process upon an administrative agency to commence an appeal to the district court, it includes that requirement in the appeal statute. See K.S.A. 41-323 and [K.S.A.] 65-1628. K.S.A. 8-259 contains no such requirement.” 10 Kan. App. 2d at 301. The KDR then argues that in K.S.A. 8-1020(o), the legislature has included a service of process requirement in an appeal statute, which Gantz would require to be followed. The language of Gantz clearly supports requiring that the licensees’ appeals be commenced by following the direction of the controlhng statute, K.S.A. 8-1020(o).
It is not correct that the service of a summons has no purpose, as notification of the pendency of the action is required and mandates the KDR to extend a temporary drivers license. K.S.A. 8-1020(o). In addition, the KDR has the obligation under K.S.A. 77-620(a) to, within 30 days from service, forward the agency record to the court for judicial review. There appears to be no requirement for an agency to file an answer, but failing to do so within 30 days risks a default being taken. We, therefore, disagree with the Court of Appeals and conclude that K.S.A. 8-1020(o) requires a licensee to serve the Secretary of Revenue with a summons.
With our conclusion reached that a petition and summons must be served on the Secretary of Revenue, the question then becomes how this must be accomplished. “Summons” is defined in legal matters as “[a] writ or process commencing the plaintiffs action and requiring the defendant to appear and answer.” Black’s Law Dictionary 1477 (8th ed. 2004). K.S.A. 60-301 states that upon the filing of a petition, the clerk shall forthwith issue a summons for service upon each defendant in accordance with K.S.A. 60-303.
The licensees argue that provisions of the Code of Civil Procedure in Chapter 60 may not supplement the KJRA because its procedure is complete in itself. This argument fails to recognize that K.S.A. 77-603(b) specifically states that the KJRA creates only procedural rights and duties in addition to those created and imposed by other statutes. The “other” statute in this case is K.S.A. 8-1020(o), which requires the issuance of a summons in order for the review allowed by the KJRA to come into being. To satisfy K.S.A. 8-1020(o), the service of summons must be accomplished. Service of summons is described and directed under the provisions of K.S.A. 60-301 et seq. with the methods of doing so established by K.S.A. 2003 Supp. 60-303.
The most recent decision on tire interrelation or lack thereof between the KJRA and the Code of Civil Procedure is Pittsburg State University v. Kansas Bd. of Regents, 30 Kan. App. 2d 37, 36 P.3d 853 (2001), rev. denied 273 Kan. 1036 (2002). Pittsburg State University held that K.S.A. 60-210(a) and K.S.A. 60-215(c) supplement the KJRA, the relation back provisions of 60-215(c) were satisfied and amendments relate back to the date of filing, and the failure to comply with the pleading requirements set forth in K.S.A. 77-614(b) precludes a litigant’s statutorily granted right of appeal. 30 Kan. App. 2d at 40-45.
The Pittsburg State University opinion attempted to limit the extent of its holding when it said:
“It is important to note that we do not suggest that the KJRA should always be supplemented by Chapter 60 rules of procedure. Instead, our application of specific rules of civil procedure to agency appeals is narrowly tailored to (1) require a case caption under K.S.A. 60-210(a) in a petition for judicial review of an agency action, (2) permit amendment to the case caption of a petition for judicial review of an agency action to add or substitute a party under K.S.A. 2000 Supp. 60-215(a), and (3) allow for relation back of an amendment of a case caption of a petition for judicial review if the statutory requirements of K.S.A. 2000 Supp. 60-215(c) are satisfied. We find it necessary to supplement the KJRA with these provisions of Chapter 60 because a case caption is a logical necessity that is not provided for in the KJRA.” 30 Kan. App. 2d at 43-44.
The Pittsburg State University opinion rejected the holding in University of Kansas v. Department of Human Resources, 20 Kan. App. 2d 354, 357, 887 P.2d 1147 (1995), which concluded that the specific pleading requirements of K.S.A. 77-614(b) are not jurisdictional and applied a notice pleading standard. 30 Kan. App. 2d at 44-46. Prior to the Pittsburg State University decision, District Court Judge Steve Leben criticized the University of Kansas decision, arguing that the KJRA applies a more stringent standard than the Code of Civil Procedure. Leben, Challenging and Defending Agency Actions in Kansas, 64 J.K.B.A. 22, 35 (June/July 1995). However, the Pittsburg State University court noted that University of Kansas was not the only opinion that incorporated a provision from the Code of Civil Procedure into the KJRA. 30 Kan. App. 2d at 39-40. In Southwest Kan. Royalty Owners Ass'n v. Kansas Corporation Comm'n, 244 Kan. 157, 166, 769 P.2d 1 (1989), this court noted that K.S.A. 60-252 requires the district court to make separate and distinct rulings for each material fact that its decision relies on.
We agree with Pittsburg State University and adopt its holding that the Code of Civil Procedure may be used by the district court to supplement the KJRA if the provision is a logical necessity that is not addressed within the KJRA. In our case, it is necessary to incorporate some provisions of the Code of Civil Procedure to give effect to the service of summons direction of K.S.A. 8-1020(o) and to address the issues of waiver raised by the licensees.
Before we make our final analyses of the failure to serve and waiver issues, we note that the KDR relies on Claus v. Kansas Dept. of Revenue, 16 Kan. App. 2d 12, 13-14, 825 P.2d 172 (1991), which holds there is no provision for “substantial compliance” with the notice provisions for administrative appeals relating to driver’s license suspensions. The licensee in Claus had failed a breathalyzer test and, in appealing, served a copy of the petition for review on the Driver Control Bureau, a subdivision of the KDR, but not on the agency head as required by K.S.A. 77-613(d). Claus held that while actual notice was received, the proper service was upon the Secretary of Revenue, strict compliance was required, the Chapter 60 allowance for “substantial compliance” was rejected, and the petition for review was dismissed. 16 Kan. App. 2d at 13-14.
The result and reasoning of Claus were approved by our court in Reifschneider v. Kansas State Lottery, 266 Kan. 338, 342, 969 P.2d 875 (1998), where we said: “The Court of Appeals’ decision in Claus regarding strict construction is sound.” The provision being strictly applied in Reifschneider was K.S.A. 77-613(e) in an appeal involving the Kansas State Lottery. The notification requirement was held to require the Kansas State Lottery to serve notice of its final agency action on the Reifschneiders. 266 Kan. at 342-43.
The requirement of personal service of the notification of suspension of driving privileges under K.S.A. 8-1002(c) was deemed mandatory in Anderson v. Kansas Dept. of Revenue, 18 Kan. App. 2d 347, 853 P.2d 69, rev. denied 253 Kan. 856 (1993). Anderson held that leaving the notice of suspension with the driver’s personal belongings that he or she later retrieves does not constitute personal service as required by K.S.A. 8-1002(c). This failure was resolved against the KDR. It was held the driver did not have to show prejudice where not personally served. Anderson relied on Claus for the proposition that substantial compliance is not applicable to a driver’s license suspension appeal. 18 Kan. App. 2d at 353-55.
In this case, all three licensees have argued that provisions of Chapter 60 do not apply. But the licensees contend that if the Code of Civil Procedure does apply, the KDR has entered its appearance as allowed by K.S.A. 60-203(c). The KDR denies making a voluntary entry of appearance but argues the provisions of K.S.A. 60-203 are necessary to supplement the KJRA (as allowed by Pittsburg State University) to establish how long a licensee has to secure jurisdiction over the involved state agency, in this case the KDR.
K.S.A. 60-203 provides that a civil action is commenced at the time of filing of the petition if service is obtained within 90 days (120 days if the time is extended for 30 additional days by the court upon a showing of good cause). Without timely service on a defendant, the action is not commenced at the time the petition is filed because the personal jurisdiction component of the court’s authority has not been established.
As we have previously stated, the date of filing the petition for review is critical for determining whether the district court has subject matter jurisdiction. In our case, the language of K.S.A. 8-1020(p) states: “The petition for review shall be filed within 10 days after the effective date of the order.” As was stated in W. S. Dickey Clay Mfg. Co. v. Kansas Corp. Comm’n, 241 Kan. 744, 749, 740 P.2d 585 (1987): “The rule is well established that the time for taking an administrative appeal, as prescribed by statute, is jurisdictional and delay beyond the statutory time is fatal. [Citations omitted.]”
The record is clear that Pieren-Abbott never served the Secretary of Revenue or KDR with a summons. However, Pieren-Abbott convincingly argues that any defense of lack of service of process or insufficiency of service of process was waived by the KDR’s failure to include such defenses in its answer filed 15 days after the filing of her petition for review.
Pieren-Abbott relies on the clear language of K.S.A. 60-212. K.S.A. 60-212(b) provides, in part:
“Every defense, in law or fact, to a claim for relief in any pleading . . . shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (4) insufficiency of process, (5) insufficiency of service of process . . . .”
K.S.A. 60-212(h) states:
“(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subsection (g) or (B) if it is neither made by motion under this section nor included in a responsive pleading or an amendment thereof permitted by subsection (a) of K.S.A. 60-215 and amendments thereto to be made as a matter of course.”
Subsection (g) relates to the consolidation of defenses in a prepleading motion, which is not applicable here as no such motion was filed. The KDR did ask at pretrial to amend its answer to allege Pieren-Abbott’s failure to serve the Secretary of Revenue with a summons. This request was never ruled on by the district court, nor was the waiver issue reached by the Court of Appeals’ opinion, which held that service of a summons was not required.
Pieren-Abbott argues the plain language of K.S.A. 60-212 and states that the KDR’s defense of failure of service of process was waived. Pieren-Abbott relies on Austin v. Johnston Coca-Cola Bottling Group, Inc., 20 Kan. App. 2d 715, 720, 891 P.2d 1143, rev. denied 257 Kan. 1091 (1995), which states: “If not raised in an answer or motion, the defense of lack of personal jurisdiction is waived. K.S.A. 60-212(h)(1).”
The KDR argues its defense was not waived, citing Haley v. Hershberger, 207 Kan. 459, 465, 485 P.2d 1321 (1971), which held a motion for extension of time to answer or extensions for discovery may not be regarded as waiver of lack of jurisdiction because of insufficiency of process. It must be pointed out that the Haley opinion more forcefully states:
“The defense of lack of jurisdiction of the person is waived only when it is not raised by motion or in the answer itself. This is clearly stated by the express terms of K.S.A. 60-212(h). The defense is then waived not because of the defendant’s voluntaiy appearance, but because of the failure to assert the defense within the time prescribed by the rules.” 207 Kan. at 465.
The KDR did not timely assert its lack of jurisdiction defense to the Pieren-Abbott petition, and such defense, under the precise language of K.S.A. 60-212(h), has been waived.
Although the Court of Appeals reversed the district court’s dismissal of Pieren-Abbott’s petition based on the wrong reason, it reached the correct result and must be affirmed. A lower court’s decision will be upheld on appeal even if the lower court relied on the wrong ground or assigned erroneous reasons for its decision. Hall v. Kansas Farm Bureau, 274 Kan. 263, 273, 50 P.3d 495 (2002).
The analysis which saves the Pieren-Abbott appeal does not apply to Day’s and Earlywine’s petitions for review. The KDR’s answer to Day’s petition specifically stated: “No summons was attached to the Petition for Review.” Likewise, the KDR’s answer to Earlywine’s petition for review asserts that “Plaintiff failed to serve defendant with a summons as required by law.” These answers were filed within 21 days of the date the petitions for review were filed and gave both licensees notice that the KDR was contesting its service. Thus, the K.S.A. 60-212(h)(1) waiver argument of the Pieren-Abbott appeal does not exist as to the Day and Earlywine appeals.
Day and Earlywine did serve the Secretary of Revenue with summonses, but it was more than 90 days after filing their petitions for review. Relying on Read v. Miller, 247 Kan. 557, 802 P.2d 528 (1990), Day and Earlywine argue the district court had personal jurisdiction on the KDR under the provisions of K.S.A. 60-203(b) because the KDR had actual knowledge of the action although service of process was defective.
K.S.A. 60-203(b) states:
“If service of process or first publication purports to have been made but is later adjudicated to have been invalid due to any irregularity in form or procedure or any defect in making service, the action shall nevertheless be deemed to have been commenced at the applicable time under subsection (a) if valid service is obtained or first publication is made within 90 days after that adjudication, except that the court may extend that time an additional 30 days upon a showing of good cause by the plaintiff.”
The Court of Appeals’ opinion in Grimmett v. Burke, 21 Kan. App. 2d 638, 647-48, 906 P.2d 156 (1995), rev. denied 259 Kan. 927 (1996), recognized that K.S.A. 60-203(b) is to be liberally construed. Grimmett further states:
“We hold that before it can be said that services has ‘purported to have been made/ it must be shown that a defendant was given actual notice of having been sued. We also conclude that the following factors should exist: (1) The original service must have ‘appeared’ to be valid and the returns by the sheriffs office or other process servers must indicate that the service was valid. (2) The record should show that the plaintiff believed in good faith that his or her service was valid and relied on that validity to his or her detriment. (3) The plaintiff had no reason to believe the defendant was contesting service until after the statute of limitations had run, but had no opportunity to take steps to correct the defective service.” 21 Kan. App. 2d at 647-48.
These factors limit the application of K.S.A. 60-203(b) in accordance with the legislature’s intent to give parties a second chance at service only when the original service was declared invalid despite the fact that it gave the defendant actual notice of suit. 21 Kan. App. 2d at 647. In Yoh v. Hoffman, 29 Kan. App. 2d 312, 315, 27 P.3d 927, rev. denied 272 Kan. 1423 (2001), the Court of Appeals indicated that the Grimmett factors should only be applied after there has been a judicial determination on the merits of a defense of insufficiency of process or service of process. Here, because the district court formally adjudicated the KDR’s improper service of process defense on the merits, the Grimmett factors are to be applied to determine if K.S.A. 60-203(b) is applicable.
Day and Earlywine argue that they served summonses bn the KDR before the district court ruled that service was improper, so proper service was achieved before the expiration of the 90-day period in K.S.A. 60-203(b). However, neither Day nor Earlywine consider the Grimmett factors. They clearly do not qualify for K.S.A. 60-203(b) to apply because there was no original service that appeared to be valid as required by the first Grimmett factor, and they fail under the third factor as they were clearly informed that the KDR was contesting service and could easily have served the Secretary of Revenue with summonses before the 90-day period in K.S.A. 60-203(a) had expired.
K.S.A. 60-203(b) does not apply to save Day and Earlywine from their failure to timely establish personal jurisdiction. There was no waiver. The appeal was not timely commenced. The district court properly dismissed both petitions for lack of jurisdiction.
The Court of Appeals decision reversing the Day and Earlywine district court rulings is erroneous and must be reversed.
In summary, the Court of Appeals decision regarding the PierenAbbott petition for review out of Sedgwick County District Court is affirmed. The Sedgwick County District Court is reversed. The Pieren-Abbott petition for review is remanded for further consideration on its merits by the Sedgwick County District Court.
As to the Day and Earlywine petitions for review out of Riley County District Court, the Court of Appeals is reversed. The Riley County District Court’s rulings dismissing both appeals are affirmed.
Gernon, J., not participating.
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The opinion of the court was delivered by
Six, J.:
This case marks another chapter in the judicial dialogue between Native Americans and the State of Kansas. The challenging issue here questions the State’s failure to apply the Kansas reciprocity statute, K.S.A. 8-138a, to a vehicle licensed by the Sac and Fox Indian Nation of Oklahoma (Sac and Fox). Priscila Wakole, a Native American, was convicted for driving a vehicle in Kansas bearing Sac and Fox license plates. A deputy sheriff issued Wakole a ticket for an “illegal registration” in violation of K.S.A. 1997 Supp. 8-142. Wakole appealed, contending that her conviction was improper because the license plate was valid. The appeal was submitted on Wakole’s brief alone. The State did not fñe a brief. The Court of Appeals reversed. State v. Wakole, 24 Kan. App. 2d 397, 945 P.2d 421 (1997).
We granted the State’s petition for review. See Rule 8.03 (1997 Kan. Ct. R. Annot. 52). Our order granting review directed the parties to brief the following special question: Does the State of Oklahoma recognize Sac and Fox vehicle registrations and license plates as valid for use on Oklahoma highways?
Our analysis focuses on the special question. The answer is “yes.” We reverse Wakole’s conviction, disapprove of the Court of Appeals’ language beyond the narrow focus of this opinion, and modify the Court of Appeals’ opinion accordingly. We note that neither the district court nor the Court of Appeals had the benefit of the parties’ briefs and argument on the special question.
FACTS
Priscila Wakole was arrested in 1996 for driving her brother-in-law’s Chevrolet van bearing Sac and Fox license plates. (Violation of K.S.A. 1997 Supp. 8-142 is a misdemeanor. K.S.A. 8-149.) Wakole is a member of the Kickapoo Indian Nation. Her husband is a member of the Sac and Fox. She resides within Oklahoma and within the boundaries of the Sac and Fox Indian reservation. Her brother-in-law is a member of the Sac and Fox. She was not on an Indian reservation when she was arrested. The van, principally garaged within Sac and Fox jurisdiction, was properly titled, registered, and tagged under the tribal law of the Sac and Fox.
The Court of Appeals found “the only issue to resolve is whether Kansas must recognize a valid license tag issued by the Sac and Fox Indian Nation and extend the privilege of using Kansas roads to vehicles so tagged without requiring registration of those vehicles upon entering Kansas.” 24 Kan. App. 2d at 398. The Court of Appeals reversed on the ground that “[t]he word ‘state’ in K.S.A. 8-138a is interpreted to include Indian nations.” State v. Wakole, 24 Kan. App. 2d 397, Syl. ¶ 2.
DISCUSSION
We begin by narrowing the inquiry. Under the facts here the question is: Does Oklahoma recognize Sac and Fox registrations and license plates (tags) as valid for vehicle use on Oklahoma highways?
Our reversal of Wakole’s conviction is based on Oklahoma’s recognition of the Sac and Fox license plate on the van. Our rationale is grounded on reciprocity to a sister state under K.S.A. 8-138a. We conclude that the van was “duly licensed in the state of residence.”
Both Wakole and the State disagree with our rationale. Wakole contends that there is a logical fallacy in reasoning that reciprocity can flow from Oklahoma. She criticizes the reciprocity argument because it “treats the Sac and Fox nation as a sub-entity of the State of Oklahoma, a mere subdivision, and not as the sovereign nation it is.”
We believe the better view is that Sac and Fox tribe members are citizens and residents of Oklahoma, see Goodluck v. Apache County, 417 F. Supp. 13, 16 (D. Ariz. 1975) (citing U.S. Const., 14th Amend., § 1), aff’d 429 U.S. 876 (1976). If Oklahoma recognizes its citizens’ license plates, we reason that the reciprocity provision of K.S.A. 8-138a requires Kansas to do so. K.S.A. 8-138a provides:
“The provisions of this section shall apply only to the nonresident owner or owners of any motor vehicle constructed and operated primarily for the transportation of the driver or the driver and one or more nonpaying passengers. Such nonresident owners, when duly licensed in the state of residence, are hereby granted the privilege of operation of any such vehicle within this state to the extent that reciprocal privileges are granted to residents of this state by the state of residence of such nonresident owner.” (Emphasis added.)
The parties do not cite any Oklahoma statute directly recognizing license plates issued by a tribe or an Indian Nation to individual tribal members. Our independent research reveals none. However, we have located legislation dealing with Oklahoma-issued special license plates for Native American Tribal Associations. OHa. Stat. tit. 47, § 1136, (1998 Supp.) (Motor Vehicles) provides:
“12. Indian Tribal License Plates — such plates shall be designed for any vehicle of a native American Indian Tribal Association exempted in Sections 201 through 204 of Public Law 97-473 and used by the tribal association exclusively for the furtherance of its tribal functions. The registration fee shall be Five Dollars ($5.00).” (We do not suggest this statute applies to the van Wakole was driving).
Wakole includes in her brief addressing the special question a notice and correspondence from the Oklahoma Department of Public Safety and a memorandum from the Oklahoma Department of Public Safety and the Oklahoma Tax Commission. The included materials imply that license plates issued by the Sac and Fox Nation of Oklahoma are valid in Oklahoma. A memorandum dated July 1, 1997, (the July memorandum) to “all tribal leaders” signed by Robert Anderson, Chairman of the Oklahoma Tax Commission, and Bob A. Ricks, Commissioner of Pubic Safety, states:
“RE: SB 586 - Amendments to 47 O.S. §§ 6-106.854 and 1151
“This memorandum is in response to the many inquiries received regarding the impact of SB 586 [after July 1,1997, Oklahoma Inspection Stations will no longer be able to inspect any vehicle unless the vehicle has a current Oklahoma license plate and decal] on tribal members owning vehicles which have a license plate issued by a federally-recognized tribe in Oklahoma. It is our view that the above-cited law does not apply where the individual owns a vehicle which is not required to be registered by the State of Oklahoma. Any other interpretation would mean the Legislature indirectly intended to require registration of vehicles which are otherwise specifically exempt from Oklahoma registration requirements. See Sac and Fox Nation v. Oklahoma Tax Comm’n, 113 S. Ct. 1985, 508 U.S. 114, 124 L. Ed. 2d 301, rehearing denied 113 S. Ct. 3066, 509 U.S. 933, 125 L. Ed. 2d 748 on remand 7 F.3d 925.
“Accordingly, a member of a federally-recognized Oklahoma tribe, living in ‘Indian country’ as defined by federal law and owning a vehicle bearing a valid license plate from the tribe has:
“1. a valid license plate to be treated the same as an Oklahoma license plate under the provisions of 47 O.S. 1151 as amended by SB 586;
“2. a valid license plate for purposes of obtaining a motor vehicle inspection; and
“3. a valid license plate for purposes of obtaining an Oklahoma driver license.
“You are authorized to reproduce a copy of this letter and furnish it to any concerned tribal member or other interested party.”
The State in opining that “it does not appear that the Wakole vehicle bearing the Sac and Fox tribal tag may be lawfully operated on the highways” of Oklahoma did not directly answer our special question. However, a modest concession towards Oklahoma’s rec ognition of license plates issued by a federally recognized tribe is found in the State’s brief:
“Given the Oklahoma statutes which do not exempt tribal members from application of state motor Vehicle laws, the absence of Oklahoma case law on this issue, the statement of facts contained in the Supreme Court opinion [Oklahoma Tax Com. v. Sac & Fox Nation, 508 U.S. 114], and the adverse result of the Supreme Court case regarding the tax component of Oklahoma’s motor vehicle registration and licensing scheme, it may be that the State of Oklahoma is not enforcing its registration and licensing laws as to Sac and Fox tribally-tagged vehicles.
“. . . Benign neglect (should that prove to be the situation in Oklahoma concerning these tribal tags), is a legally insufficient basis upon which to extend reciprocity to the Sac and Fox tribal tags.”
During oral argument, counsel for the State, in response to a question from the bench, did not question the validity of the July memorandum. However, counsel reiterated the State’s position that Oklahoma statutory recognition of tribal license plates issued to individual tribal members by Indian tribes is required before K.S.A. 8-138a applies.
We read the July memorandum to state that Oklahoma by either custom or rule recognizes license plates issued by the Sac and Fox Indian Nation to individual tribal members. The July memorandum is signed by Bob A. Ricks, Commissioner of Public Safety, and Robert Anderson, Chairman, Oklahoma Tax Commission, addressed to “all tribal leaders.” Under Oklahoma statutes, the Commissioner of Public Safety “shall have such powers and authority as may be granted by the provisions of the Uniform Vehicle Code or as may otherwise be provided by law.” Okla. Stat. tit. 47, § 2-101 (a) (1988).
The Uniform Vehicle Code, Okla. Stat. tit. 47, § 1-101 et seq. (1988) covers, among other things, operator’s licenses, rules of the road, and the Oklahoma Vehicle License and Registration Act. Okla. Stat. tit. 47, § 1113 (1988) states:
“Upon the filing of a registration application and the payment of the fees provided for in the Oklahoma Vehicle license and Registration Act, the Oklahoma Tax Commission shall assign to the vehicle described in the application a distinctive number and issue the owner of the vehicle a certificate of registration and one license plate ... or a yearly decal for the year that a license plate is not issued.” (Emphasis added.)
The Commissioner of Public Safety and the Oklahoma Tax Commission, therefore, are the agencies charged with implementing Oklahoma vehicle registration.
We conclude that the July memorandum stating that “a vehicle bearing a valid license plate from [a] tribe” has “a valid license plate to be treated the same as an Oklahoma license plate” is persuasive that Oklahoma recognizes license plates issued by the Sac and Fox.
We also note a June 18,1997, “NOTICE” under the letterhead of State of Oklahoma, Department of Pubic Safety, Bob A. Ricks, Commissioner. The notice says, in part:
“If the vehicle has an out-of-state license plate, an inspection station cannot, for any reason, inspect the vehicle.
“There are two exceptions to this law. [Reference is made to vehicles owned by members of the Armed Forces of the United States assigned to duty in Oklahoma.] Also if the vehicle has an Oklahoma Tribal Tag, the vehicle will be inspected. Oklahoma Tribal tags are to he treated the same as an Oklahoma license plate.” (Emphasis added.)
The issue whether federal law compels Kansas to recognize Indian license plates issued by tribes within Kansas is not presented by Wakole’s appeal of her conviction. Wakole’s van bore Sac and Fox of Oklahoma license plates.
The Court of Appeals’ Opinion
The Court of Appeals held that K.S.A. 74-4305, which defines “state” for the purposes of K.S.A. 8-138a, includes Indian Nations. The Court of Appeals relied on Red Lake Band of Chippewa Indians v. State, 311 Minn. 241, 248 N.W. 2d 722 (1976), and Queets Band of Indians v. State of Wash., 765 F.2d 1399 (9th Cir. 1985). The State argues that neither Queets Band nor Red Lake sheds any light on what “state” means in K.S.A. 74-4305. The issue of whether an Indian Nation is a state under K.S.A. 74-4305 is not before us. We note however that Red Lake and Queets Band are based on principles of federal law regarding Indian sovereignty. Red Lake specifically noted the tribe’s unique sovereign status, exempted by Congress from the operation of a federal statute that conferred civil and criminal jurisdiction over Indians in Minnesota. 311 Minn, at 246. Queets Band involved tribally owned vehicles providing sanitation and police services on the reservation, not vehicles owned by individual tribal members such as Wakole’s brother-in-law. Queets Band has been vacated and withdrawn. 783 F.2d 154 (9th Cir. 1986). The Washington Legislature has exempted vehicles owned or leased by the governing body of an Indian tribe located in Washington when the vehicle is used exclusively in tribal government service. See Wash. Rev. Code § 46.16.022 (1987) (additional limitations on recognition are set out in the remaining provisions of the statute); Queets Band of Indians v. State, 102 Wash. 2d 1, 682 P.2d 909 (1984).
Wakole contends that to construe K.S.A. 74-4305 to exclude Indian Nations would constitute denial of equal protection based on race or nationality. Because we hold Wakole’s conviction must be overturned on reciprocity grounds, we do not reach her constitutional arguments.
The Court of Appeals’ opinion is: (1) affirmed in reversing Wakole’s conviction, (2) disapproved as to any language beyond our narrow holding, and (3) modified by our opinion. The district court is reversed. | [
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The opinion of the court was delivered by
Kingman, C. J.:
On the 28th of February 1870, the-plaintiff in error had a large amount of money in current funds on deposit with Scott & Co., bankers of Leavenworth-On that day he gave the- bank a check payable to himself in legal-tender treasury notes. He received the legal-tender notes, inclosed them in a sealed envelope, and immediately returned them, thus sealed up, to the bank-;; and three days afterwards deposited all of said money as a general and ordinary deposit of current funds. The1 Avhole transaction was for the sole and express purpose, of escaping taxation on the funds so used for the year 1870-Did he by this transaction so place his property as to relieve it from the burdens of taxation ? and is he in a situation in» which he can invoke the aid of a court of equity to restrain the taxes levied upon those funds? It is conceded that United States legal-tender notes are exempt from taxation-It is also conceded that the transaction between plaintiff in. error is one not in contravention of law, of itself. But it is contended, that the motive being to defraud the government of its just dues, and enable the plaintiff to escape the just burdens that society imposes on him, enters into and vitiates-the whole transaction, and that a court of justice, sitting as »- court of equity, will not lend its aid for the accomplishment of any such purpose. And we think the argument a good» one. Reference is made to the principles stated in the brief of defendant in error, and the authorities cited to sustain them. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the coui't was delivered by
Kingman, C. J.:
Is the complaining witness in a proceeding to prevent the commission of an offense under aft. 2, ch. 82, Gen. Stat., 821, liable for the costs in a case' where the justice holds that there is no cause for binding over the accused ? The witness is not a party to the proceeding.. If he is liable for the costs it must be by virtue of some statute. The one referred to as creating the liability is the first proviso to § 13 of the act relating to fees, (ch. 39, Gen. Stat., 481.) That section provides that where a person is charged with a felony, or with an offense less than a felony, and shall be discharged for want of sufficient evidence to convict or bind' over, the prosecuting witness shall be liable for costs. In this case no person was charged with an “offense.” That word has a statutory definition, (§ 2, ch. 82, p. 820,) which excludes its application to proceedings to preserve the peace. We know no reason why the legislature made the prosecuting witness liable in one case and not in another. No good reason is perceived for the distinction. Still the language of the statute does not apply to this case, and wo cannot extend it. Counsel is mistaken in assuming that there are no misdemeanors of which justices have not jurisdiction. There are many such, and because of this error, his argument on the words “bind over,” in the proviso, falls to the ground. The judgment is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
The plaintiffs in error are sued as sureties of Prank Smith in his bond as city treasurer of the city of Atchison. The bond is dated April 30th 1868. On the 13th of said April the city council of that city appointed said Smith city treasurer upon his agreement to pay seven per cent, interest on all current funds in his hands, and make no charge for his services, all which appears on the journals of the council of that date. The ordinances of the city of Atchison at that time expressly prohibited the city treasurer from using the public moneys or orders in his keeping or .custody for his own use or benefit, and gave him a salary of $200 per annum for his services. On the trial the defendants Manley, King, Martin, and Price, sureties on the bond, offered to prove “that the mayor and council of the city of Atchison allowed Smith to use the funds of the city in his own private business under an agreement that he should pa.y seven per cent, interest per annum for all current funds in his hands, and make no other charge for his services, and that he was appointed treasurer in consideration of this agreement on his part to pay interest and make no further charge, which facts were not communicated to defendants Manley, Martin, King, .and Price, when they signed the treasurer’s bond; that this action was had by the mayor and council in executive session; that said defendants liad no knowledge of such a contract, .and that had they been informed of the facts they would not have signed the bond.” The plaintiff objected to the introduction of this evidence, and the court .sustained the objection; and this action of the court constitutes the only question presented by the plaintiffs in error in this case.
Was this testimony admissible? It presents the question of whether the illegal acts of one class of a city’s agents so excuses the illegal acts of another agent of the city as that the sureties on a bond given for the faithful performance of his duties by the latter are thereby released. The mayor and •council of a city are but the officers and agents of the city, with defined powers. Acting within the limits of these poivers their acts are binding, however unwisely and imprudently their action may be. Outside the poAA^ers confided to them their acts are, as to the city, null and Amid. The contract AArhich the rejected evidence Avas proposed to prove, was one the mayor and council had no power to make. This is plain from the ordinance referred to. It would be no less certain if .no such ordinance existed. The funds arc collected for public purposes. The mayor and council had no right and no power to use them for any other purpose. They could not convert the city into a banking concern, or become auxiliary to any such scheme, by a direct or indirect use of the public funds for such purpose. Their duty was to administer the funds raised for public objects so as to promote those objects alone. It was also the duty of the treasurer to safely keep the funds sacred for those public purposes only. He had no right to use a dollar for private gain. He got his power by his appointment; but his duties were defined by law, and were not a subject of bargain and trade between himself and the mayor and council. Their consent or agreement that he should use the funds in his business gave him no right so to do. An illegal contract could not enlarge the power of the city treasurer; neither could it limit his responsibility. That the illegal contract was made with the other agents of the city does not change the principle, nor alter the duties and obligations of the treasurer. They remained the same, and were defined by law. Any other conclusion would lead to endless confusion, and often end in ruin to cities. The whole fallacy of the argument of the plaintiffs in error lies in confounding the mayor and council of a city with the city itself. Although their powers are greater, they are no more the city than is the city marshal, or the city attorney; and either of these officers would have had as much right to make a contract with the treasurer, such as was attempted to be proven in this case, as had the mayor and council; and a contract with either would have been as valid and binding. The contract or agreement sought to be proven in nowise lessened the obligation of the treasurer; neither did it affect the liability of his sureties. Testimony to prove it was therefore properly excluded. This view settles the points made on the instructions.
II. The city of Atchison also files its petition in error in this case, and asks the court to correct a certain ruling of the court below made to its prejudice. The record shows that the city gave in evidence testimony tending to make out its case, and then introduced Mr. Garside as a witness, who testified that he succeeded the said Smith in the office of city' treasurer, and upon February 23d 1869 entered upon the ■duties of said office, and on said day made demand as such -city treasurer upon said Smith as late city treasurer to turn ■ over to him the city funds then in his hands, and settle therefor. “And then plaintiff offered to prove, by said witness, that at said time the said Smith as such late city treasurer had in his hands certain funds belonging to the said city of Atchison for the benefit of its public schools, which had been placed in his hands as such city treasurer, and ex offieto treasurer of the board of education, for the benefit of the schools in said city between July 1st 1868, and February 9th 1869, and then had remaining in his hands as such city treasurer, of said funds, the sum of $2,055.52, known as ‘school fund,’ and the sum of $1,593.81, known as ‘interest on school bonds.’ To the introduction of this evidence defendants objected, which objection was sustained by the court.” This ruling of the court is the only error complained of by defendant in error, and the record in this matter is literally quoted because a, question was elaborately argued in this court which is not raised by the record. What the objections were, that were raised in the court below, we are not informed by the record. The evidence was rightfully excluded. The best evidence is always required. This rule is fundamental. It appears from the ordinance of the city, made a part of the record, that it is the duty of the treasurer “To keep in suitable books a full and accurate account of all moneys received by him on behalf of the city, specifying the time of disbursement, from whom received, to whom disbursed, and on what account received and disbursed.” This book would be the best evidence of the facts sought to be proven by the witness Garside, and this evidence the city should have offered. There is no showing that the books were not in the custody of tlie treasurer, nor any testimony that they had not been -correctly kept. This court will on this ground be compelled to sustain the ruling of the court below; and it is of no importance to this action what may be the views of this court •on the question argued, and that is this: Is the city treasurer liable on his bond, as such, for moneys that come into his hands belonging to the school board?
The judgment is affirmed. The costs of this court to be ■equally divided.
All the Justices concurring. | [
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The opinion of the court was delivered by
Kingman, C. J.:
This action was brought in the district court of Douglas county on a judgment rendered by the district court of Leavenworth county. The court below sustained a demurrer to the petition. Several questions are presented.
I. Does such an action lie? It is conceded that such am action lies at common law. There is nothing in the code that divests that right. In this case we have nothing to do with the question of costs. It may be, by analogy, drawn from some of the provisions of the code, that the creditor pursuing .such a course is not entitled to costs; but aside from that question none of the sections of the code referred to were intended to divest the creditor of the right to such an action. The proceeding seems harassing and vexatious, and to serve ■no purpose that could not be reached by a more simple and .less costly method. But these are reasons why the law should be changed, and not that it should be disregarded.- When the legislature makes the change this court will cheerfully enforce •the law. This question has been settled under codes similar ,to our own. Simpson v. Cochran, 23 Iowa, 81; Ames v. Hay, 12 Cal., 11.
;- II. It is insisted that it was necessary to aver personal service to show that the court had jurisdiction. The court that rendered the judgment was one of general jurisdiction, and in pleading the judgment of such a court it is not necessary to show the facts by which the court obtained jurisdiction. The usual and sufficient allegation is, that by the consideration of that court the plaintiff recovered the sum mentioned therein. Biddle v. Williams, 1 Pet., 686. Under our code, where the court that rendered the judgment is one of only limited and special jurisdiction, it is sufficient to aver that the judgment was duly rendered; § 121. The petition was not defective on this ground.
III. There was no copy of the judgment sued on attached to the petition. We think this was such an instrument as the code requires to be filed with the pleadings; but the .defect was one to be corrected on motion, not by demurrer. In states like Indiana, where the code makes the instrument or account on which the pleading is founded a part of the record, the not filing it may well be taken advantage of by demurrer; but in a code like ours such a practice is not logical, and ought not to be enforced.
IV. Was the action barred by the statute of limitations ? The judgment was rendered on the 4th of June 1859. This action on said judgment was commenced on the 2d of Juné 1869, the intervening period being two days less than ten years. If the action was barred it must have been either by- § 20 of the code of 1859, Comp. Laws, 127, or by § 18 of the code of 1868, Gen. Stat., 633. The former of these was in force when the judgment was rendered, and so remained until its provisions were superseded by the Gen. Stat. in 1868. This section of the Comp. Laws bars actions not brought within three years “upon a specialty, or any agreement, contract or promise in writing.” The terms used have a signification broad enough to cover a judgment. They have also another meaning, and one in which they are more commonly used, which would not include a judgment. In what sense did the legislature use them? This inquiry presents' the only point on which the court has to pass, and we find no great difficulty in determining it. The word “contract” is some-1 times used in a sense that would make it embrace a j udgmeut; thus, .'Blackstone says, “ The last general species cif contractk which I ■ have to mention is that of debt.” The- learned author then classified debts as debts of record, debts by special, and debts by simple contract, and classes a judgment as a “debt of record,” which he calls “a contract of the"highest nature, being established by the sentence of a court of1 judicature.” 2 Bl. Com., 464, 465. Other writers treat the subject in the same way. Chitty on Cont., 2; Story on Cont., 2; Parsons on Cont., 7. In this sense a judgment is a contract, and is a contract by specialty. But the word is commonly used to express the agreement between two or more parties, for the doing or not doing of some particular thing; and we think the legislature used the word in this more restricted but more common signification. We do not rest this conclusion entirely upon the fact that such is the more common use of the word. The same legislature that passed this statute, on the day before this law was passed made another enactment amendatory thereto upon the subject of limitations of actions in certain cases, and in that used the word contract, and added to it judgments, thus showing" that they used the word contract in its ordinary sense. It was not, in the legislative mind, comprehensive enough to embrace a judgment; therefore, a judgment was specially mentioned': Comp. Laws, 232, § 2. Again, the same statute that contains the limitation makes judgments a lien on lands, and continues this lien for five years, and as long thereafter as the judgment should be kept alive by the issue of executions, in proper times. To hold that judgments are embraced by the language of the section quoted, would place the law in the absurd -condition of proving that a judgment that is a lien upon the lands and tenements of the debtor, and can be enforced by execution, is barred by the statute of limitations. The law ought to be plain and unmistakable’to justify a construction leading to such a conclusion. We think it clear that the legislature used the word “contract” in its ordinary sense, and not as embracing judgments. Neither is the judgment covered by the word “specialty.” That word is used to describe one class of contracts, and in that class judgments aré -included. But the ordinary sense of the term is, that it means contracts under seal; and in that sense it does not includé judgments.- ' The observations made as to the word contract apply to this term with equal force. We are not left however to pur own judgment as to the meaning of this section of the law. • The exact point was decided in Tyler’s Ex’r v. Winslow, 15 Ohio St., 365. See also Todd v. Crum, 5 McLean, 172, and Dudley v. Lindsay, 9 B. Monroe; 486. The action not being barred by this statute it remains to be seen whether it is affected by the provisions of the Gen. Stat. Sec. 18 of the present code prescribes the limitation for all actions other than for the recovery of real estate, and after providing different limitations for various classes of cases, none of which by the terms used include judgments, in the sixth subdivision provides a general limitation of five years for all actions for relief - not thereinbefore provided for. In this category is the case before us. The-language of the section is plain, and its provisions are sweeping. If a right of action exists on a judgment,-and there is no other limitation provided for actions upon judgments, then this section furnishes such limitation. The code of 1859 contained a similar clause, except-that the limitation was ten years. The ten years had not expired by two days when the action was commenced. The-whole of the five years prescribed by the law of 1868 had run before the enactment of the law. Sec. 7 of chap. 119 of .the Gen. Stat. does not apply to this case, if the limitation of' .1868 is to.be applied, but may be referred to to show that it was the intent of the legislature to give to the limitation laws-.a retrospective effect. For the plaintiff -in error it is argued •that to give the law of 1868 a construction that would apply ■it to this case, would make the law cut off the remedy altogether, and that such legislation is null and void. It is .difficult to see how the statute would be void in this case,, even if it cut off the right of action absolutely and altogether. It would not impair the remedy, for it would not destroy the power of the creditor to coerce the payment of his money by execution, or to preserve his liens by the more simple and less costly, but not less efficacious, methods pointed out by the code. If the legislature should take away the right of action on domestic judgments, the act would not be in violation of the federal constitution. It would take away no substantial right, unless the right to vex and harass a debtor may be so called. But this section must .receive a construction that will apply with uniformity to other causes of action, as well as to those founded on judgment. A statute of limitations, that at once destroys the right of action, would undoubtedly be held to impair the obligation of the contract. But it seems well settled that the legislature may apply limitations as well to causes of action already existing as to those to be afterwards created, and that the law may lessen the time in , which - an action may be brought, so that a reasonable time be allowed for the commencement of the action. That it was the intention to apply the limitations in the code to the causes of action already existing, cannot be questioned, when § 7 of ch. 119 is examined. It is upon the same subject, and passed by the same legislature, and must be construed-•with and as a part of the statutes of limitation, and clearly shows that it was not the intention of the legislature in the; repeal of the old law and the substitution of a new period of limitation, to introduce a new period from which the statute-,was to begin to run. Had the judgment on which this action is brought been rendered on the 1st day of June 1864, the-■statute would have commenced to run on that day, and the-action begun on the 2d day of June 1869 would have been barred. Probably no lawyer would be intrepid enough to-question' that conclusion. It would be an awkward and. unseemly application of the law, to hold that an action on a-judgment rendered on the first day of June 1864, was barred,, while one commenced at the same time on a judgment rendered on the 4th day of June 1859 was not barred. Yet if the law is clear, there is no doubt of the duty of the court-It has been held that statutes that fix a limitation that has already run, and yet give a reasonable time in which théaction may be commenced before the statute operates, is not'unconstitutional. Smith v. Morrison, 22 Pick., 432; Holcomb v. Tracy, 2 Minn., 241; Wilcox v. Williams, 5 Nevada, 206. The defendant in error argues from this doctrine, that-the law of 1868 did not destroy the right of action at once-It was passed on the 25th of February, and did not go into-effect until its publication on the 31st of October thereafter-But it did not go into force because it was not published, and not because the legislature had fixed that time when it should, go into force. Had the statutes been published in a week,, •then the law would have been in force one week .after1 its-passage. This would not have been a reasonable time for-bringing suit. The time given depended upon the public-printer, and not on any action of-the law-making power. Is-this giving such a reasonable time as to relievo the statute-from the objection that it cut off the remedy entirely? We cannot think so; and we are unwilling to give the statute a-construction that would destroy at once a right of action, or make that right dependent on the diligence of the public; printer. While in this case such a construction would not be •objectionable, still it would settle the application of the statute to other cases, and make it a complete bar to many claims without giving any time in which the creditor might assert his rights. We cannot give the statute such a construction, but are constrained to hold that the .action was not barred, and therefore the court erred in sustaining the demurrer. 'The judgment is reversed, and case remanded for further '(proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Mason J.:
The city commissioners of Wichita passed an ordinance requiring all garbage to be deposited in metallic cans in a convenient place, and providing for its collection exclusively by a contractor selected upon competitive bidding, all other persons being forbidden to collect or remove it, under penalty of a fine. J. S. Kirksey, who had been doing a considerable business in the collection of garbage, brought an action to restrain the enforcement of this ordinance' against him. He obtained a temporary injunction, which was later set aside, all relief being denied him. He appeals.
The validity of the ordinance is attacked upon the ground that it deprives the plaintiff of property without due process of law, and is in excess of the police power. An ordinance of the same general character has- been upheld against these and similar objections. (O’Neal v. Harrison, 96 Kan. 339, 150 Pac. 551.) The plaintiff contends, however, that the ordinance now under consideration does not fall within the rule announced in the case cited, because it gives a wider scope to the meaning of the word “garbage.” It was defined there as “all rejected waste food, offal;” here as “all organic waste or residue of animal, food or vegetable matter from kitchens and dining rooms and from the preparation of dealing in or storage of meats, fowls, fruit, vegetables and grain.” We see no substantial difference in the scope of the two ordinances. It is true the one here involved omits the word “rejected,” but the word “waste” carries practically the same implication, .indicating material that has lost its value for the purposes for which it was handled by the owner, and has been cast aside. Sound judgment will be required in interpreting any definition that may be adopted, in order that the regulation may have its- intended effect.
The ordinance provides that garbage, before being deposited in the cans, “shall be drained of surplus liquids and water, and shall be free from all deleterious matter such as glass, tin cans, papers, ashes, poison or other matter injurious to animal life.” The plaintiff introduced testimony to the effect that he kept hogs which were fed from the garbage he bought and collected, but that he picked- out from it a quantity of fruit and vegetables which he and his wife kept and ate. The fact that waste matter has a disposal value does not prevent the city from assuming entire control of it. (2 Dillon on Municipal Corporations, 5th ed., § 678, quoted in O’Neal v. Harrison, supra.) We think the circumstance that there may be some possible salvage — that here and there an article may be found in it which is fit for human food — has no greater effect. Where articles of that character are cast aside by their ow'nér and mingled with ordinary refuse, the municipal authorities, for the-purpose of guarding against offensive and possibly unwholesome odors, which would naturally arise unless such material is handled with proper care, may control the disposition of the whole mass in such way as they deem expedient — either by allowing the owner to remove it himself under certain regulations, or by taking over its removal as a public function, or by letting an exclusive contract for its handling,'as was done here.
It does not follow that a dealer in perishable goods who finds himself with a quantity of them on hand which are so defective or damaged as to be unsalable in the ordinary course of business, may not sell them for some other use. But if he places them with ordinary waste matter, he elects to treat them as garbage and justifies their being so treated by others.
The judgment is affirmed. | [
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Per Curiam:
The defendant, R. J. Stroud, was arrested and tried in the police court of the city of Howard under an ordinance of said city providing as follows:
“Any person who shall, within the corporate limits of the city of Howard, assault another person, or assault and beat another person, or who shall wrangle, quarrel, fight or challenge with another person, or who shall incite or provoke others to wrangle, quarrel or fight, or who shall use any abusive or indecent language, menaces or threats of violence, or who shall use insulting language calculated to provoke'a breach 'of the peace, or who'shall be guilty of violent, turbulent or tumultuous conduct, or conduct offensive to others, or who shall.make any loud, unusual and unnecessary noises, or who shall use any profane, obscene or indecent language in any public street, lane or alley or any public place in the city shall be fined in any sum not exceeding one hundred dollars and costs.”
The trial resulted in a conviction. Defendant appealed to the district court, was there tried, again convicted and sentenced to pay a fine of five dollars and costs. Defendant appeals.
That the defendant did curse, swear at, wrangle with and abuse the prosecuting witness, George W. Orth, in the office of the Metropolitan hotel in the city of Howard, is not only found by the verdict of the jury, but is established beyond all question by the testimony in the record. The only question, therefore, in this case is whether the office of the Metropolitan hotel is a public place within .the contemplation of the ordinance under which defendant was prosecuted. The trial court in-' structed the jury that it was. In this we find no error.
Judgment affirmed.
All the justices concurring. | [
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The opinion of the court was delivered by
West, J.:
Snyder sold on time a restaurant to the Roushes for $500, Magee signing the note as surety. Snyder sued on the note, and Magee paid him $250 on condition that he be released from any further liability, and that any judgment which might be recovered should be assigned to him to the amount of $250, with interest, the assigned portion of the judgment “to be due and payable . ■. . when the full amount of said note and interest sued upon herein is paid with the costs of the above entitled action.” Snyder recovered judgment for $591.75. A good many years afterwards, without the knowledge of Magee, he entered satisfaction of this judgment upon the records in the clerk’s office, having settled with the Roushes by taking a note for $400 to his daughter, Ada Snyder, and a note for $50 to himself. Magee sued Snyder and daughter to recover his $250 with interest. At the close of the evidence it was stated by the court that, the plaintiff having no question of fact he wished to submit to the jury, and the only question the defendants desired to submit being the good'faith of the transaction between Snyder and his daughter, if the evidence were submitted to the court it would find that there was no bad faith in this transaction; whereupon, the parties waived a jury, and on the one issue of fact-the court found that the note for $400 was transferred by Snyder to his daughter for a preexisting debt, and that she became owner subject to any claim that the plaintiff might have, provided he was entitled to any claim or lien, which question was left open for further consideration and determination. The court found that there was no fraud on the part of the Snyders in the matter of the transfer of the note to the daughter.
Later, judgment was rendered for the plaintiff, and upon passing on the motion for a new trial findings of fact were made. These were, in substance, that for a valuable consideration Snyder transferred to Magee an interest in the judgment that might be rendered, setting out the written assignment and contract; that .the judgment rendered in 1908 was revived in June, 1915; that in April, 1916, Snyder, without the knowledge of the plaintiff, entered satisfaction, receiving from the Roushes the two notes, the one for $400 being made payable to the daughter, to whom Snyder was indebted in the sum of about $400; and that by agreement between Snyder and the daughter the note was executed to her in payment of his debt, the daughter taking it in good faith and without knowledge of the agreement between Snyder and Magee.
As a matter, of law it was concluded that the plaintiff was the owner of and entitled to recover an interest in the notes to the amount of his claim of $250,. with interest, and it was ordered that the notes be held within the jurisdiction of the court, and when paid the plaintiff was to receive therefrom the amount due him, the remainder to go back to the daughter or such person as she might direct.
The first complaint of the defendants is that the plaintiff’s attorney was permitted to testify touching the verbal agreement had between Snyder and Magee at the time of the payment of the $250 and the assignment of the interest in the judgment, to the effect that Snyder was to look after the collection of the júdgment and after he had collected it to pay Magee, and that the assignment was not to be recorded. On motion to strike out, the court remarked that this evidence could not be received to vary the written contract in any respect, but permitted it to stand. With this restriction it does not appear that the reception of this evidence could prejudice the court in a trial in which the parties waived a jury. (McCready v. Crane, 74 Kan. 710, 88 Pac. 748; Gordon v. Gordon, 92 Kan. 730, 142 Pac. 242; Cadwalader v. Pyle, 95 Kan. 337, 341, 148 Pac. 655.)
Counsel argues that Magee, having alleged that the Roushes misrepresented their ability to pay and thereby fraudulently procured the satisfaction of the judgment, should have proceeded against the Roushes to set aside the release. But whatever he might have done in this respect could not deprive him of his right to proceed against Snyder on his liability under the contract and arrangement by which the interest and the judgment were assigned to Magee.
It is next contended that it was as much to the plaintiff’s interest to see to the collection of-the judgment as Snyder’s, and that because he learned of the ability of some of the Roushes to pay he should look to them, and not to Snyder. But when Snyder entered satisfaction of the judgment he thereby entered of record a solemn declaration that the judgment had been collected, which was in effect an admission that he was under obligation to pay Magee his portion thereof, and, having done this, he cannot be heard now to complain that Magee seeks to hold him on his contract.
It is further contended that the taking of the notes was not a collection or payment of the judgment as required by the terms of the written assignment, but the judgment and order provided that when the notes were paid the proceeds were to be applied first to the liquidation of the Magee interests, and of this Snyder cannot complain.
It is insisted that if Snyder owed both his daughter and Ma-gee he had a right to prefer either one as a creditor. This is doubtless true so long as he used his own money or property to make such preference, but there is no rule which permits a debtor to take the money or proceeds of the property of another to prefer a third person to whom he is indebted; and when Snyder assumed to satisfy the judgment, such satisfaction included the portion owned by his assignee, to whom by his former agreement the proceeds were to be paid.
It is argued that the assignment was without consideration and void, because by paying the $250 Magee was simply fulfilling an obligation already resting on him. According to the answer of Magee in the original suit, he signed the note on condition that Snyder take a chattel mortgage upon the restaurant property as a protection to Magee for signing the note as surety, and Snyder had sold and disposed of the mortgaged property, which was worth $700. It is suggested by counsel that Snyder, rather than be compelled to show how much he sold the restaurant for, chose to settle with Magee for $250 and the transfer of the interest in the judgment. Magee testified that after he had filed his answer in that action he understood a settlement was made so far as he was concerned, that he paid Snyder under the contract $250 and did not prosecute his case any further so far as his rights were concerned. He also testified that there was plenty in the restaurant to pay all of the note, and that he paid $250 to Mr. Snyder and abandoned his defense to Snyder’s action on the strength of the agreement. Hence, the finding that the assignment was for a valuable consideration is not without support in the evidence.
The mere failure to pay taxes on his interest in the judgment did not preclude a'recovery by Magee. (Johnson v. Harvey, 83 Kan. 471, 112 Pac. 108.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
West, J.:
The defendant appeals from a judgment recovered on a membership certificate issued to the plaintiffs’ mother, and complains principally of a departure in the pleadings, of error in the admission of testimony and giving and refusing to give instructions.
The petition pleaded full performance of all the conditions precedent, the answer alleged a breach of warranty by delay in making payments and an attempt to reinstate the insured to membership when she was not in good health, and the reply pleaded waiver and estoppel. There was a motion to strike and a motion to elect, and both were overruled. Upon the theory that any delays in payment, or questions as to' reinstatement, had been waived, it was proper to allege in the petition that the conditions of the certificate had been complied with, plaintiffs not being required to know in advance that the defendant would claim otherwise. Such questions having been raised by the answer, the reply which asserts an inability by reason of waiver and estoppel does not amount to such a departure as to warrant a reversal. (Benefit Association v. Wood, 78 Kan. 812, 98 Pac. 219; Savage v. Modern Woodmen, 84 Kan. 63, 113 Pac. 802; Fritts v. Reidel, 101 Kan. 68, 165 Pac. 671; Bank v. School District, 102 Kan. 98, 169 Pac. 202.)
The financier of the local council was asked whether the deceased had been in suspension more or less than sixty days when she made payment of her assessment for August and September on October 3, 1916. This was objected to as calling for a conclusion, as incompetent, irrelevant, and immaterial, and assuming what the record might show, which objection was sustained. The .witness had already produced account books showing when the various assessments had been paid. The question called for the conclusion of the, witness upon a matter for the jury to determine, and, moreover, the desired evidence was not produced on. the motion for new trial, hence no error can be predicated on the ruling. (Kuhn v. John son, 91 Kan. 188, 137 Pac. 990; Maris v. Street Railway Co., 98 Kan. 205, 158 Pac. 6; Imel v. Railway Co., 100 Kan. 130, 163 Pac. 807.)
Neighbors who were well acquainted with the deceased were permitted to testify that she appeared to be in vigorous health, and that on one occasion she did not appear to be tired. This testimony was competent, not on the theory that healthful appearance was sufficient, but for the reason that one who acts and appears to be free from disease might properly, in the absence of other testimony, be presumed to possess good health, and for the further well-known reason that serious impairment of health is ordinarily manifested by the appearance and observable condition of the patient “Corporal appearances and conduct as indications of the inward health or lack of it are relevant.” (1 Wigmore on Evidence, § 223.)
Complaint is made that certain hypothetical questions did not include all the facts set forth in the evidence. The omitted fact referred to had reference to a statement in the proofs of death, “History of hemorrhage 6. weeks previous to operation.” These proofs were signed by Drs. Lloyd and Smith, Dr. Lloyd being assistant in the operation from the shock of which the deceased died. Dr. Smith, when on the stand, was not asked expressly about this matter, except by assuming that there was a history of hemorrhage and by asking if any sort of growth would be likely to produce one. The omission occurred in the examination of one physician, Dr. Darrah, and while it might well have been included, the failure so to do was not sufficient to constitute material error in view of all the other testimony in relation to the health of the deceased.
It was not error to overrule the demurrer to the plaintiffs’ evidence, neither did the trial court err in refusing instructions offered by the defendant which concededly raise the same point as that raised by the demurrer.
Instruction No. 2 is criticised because of the expression that the delinquency, suspension, bad health, and attempt at reinstatement alleged in the answer must have been concurrent. Of course, unless the reinstatement was at a time when the claimant-was not in good health it could not avail the defendant, and if not made at a time of delinquency or suspension it would have no effect. At any rate, we find no material error in the use of the language complained of, and we do not perceive that the jury were misled thereby.
In the instruction just referred to, the jury were told that the defense must be proved by the greater weight of the evidence. In instruction No. 3 they were charged that before the defense of forfeiture could be maintained it must be established by clear and satisfactory proof. The answer, among other things, denied that the proofs of death showed the plaintiffs to be entitled to participate in the benefit fund, and expressly pleaded a forfeiture for nonpayment of dues and assessments, and alleged that the payment of arrearages was accepted upon the warranty that the insured; was-then in good-health, whereas, in fact, she was not then in good health. As the instruction had reference only to the question of forfeiture, and is concededly correct - as an abstract proposition. of law, it does not appear that any error was committed in giving it. (Insurance Co. v. Rammelsberg, 58 Kan. 531, 50 Pac. 446; Bank v. Reid, 86 Kan. 245, 120 Pac. 339; Herrald v. Paris, 89 Kan. 131, 130 Pac. 684; Rockett v. Earl, 89 Kan. 733, 133 Pac. 852; Hewey v. Fouts, 91 Kan. 680, 139 Pac. 407.)
Instruction No. 14 was:
“By the words, ‘Good Health’ is meant that the person is free from any disease or ailment that affects the general soundness and healthfulness of the human body, or of any of its organs or parts.”
Counsel regards this as a good definition of good health, but complains because in instruction No. 4, referred to as correct in instruction No. 9, a different definition was given. Instruction No. 4 was as follows:
“Upon the question of good health you are instructed that good health does not mean a perfect physical condition. The word ‘good’ is comparative and does not mean that the deceased was free from all infirmities as such an interpretation would exclude from the list of insurable lives a large proportion of mankind. The term must be interpreted with reference to the subject matter of the business with which it is related. Ordinarily slight troubles or infirmities not usually ending in serious consequences may be regarded as included in the term good health. Bad health or illness means something more than a temporary indisposition which does not really affect the soundness of the system, substantially impair the health, materially weaken the vigor of the constitution or seriously derange the vital functions. If the insured enjoyed such good health and strength as to justify the reasonable belief that she was free from, derangement of organic functions or symptoms and to ordinary observation or outward appearance, her health was reasonably what might have been expected, the requirements as to good health were satisfied; and the burden of proof is upon the defendant to establish by the preponderance or greater weight of the evidence that the deceased was not in good health, at the time or times her dues became delinquent, if you should find that she did become delinquent.”
The italicised part of this instruction is the subject of counsel’s criticism. Good health, and not the appearance thereof or the reasonable belief therein, was the essential condition in this case. There was evidence tending to show that the diseased condition which, in the opinion of the doctor, required an operation from the shock of which the death occurred, existed when the reinstatement occurred, although there was also testimony to the effect that there was no outward appearance of such condition and possibly nothing to warrant a belief therein. It was not a question of good faith, but one of actual go'od health, and the two instructions were not harmonious, but conflicting and confusing. The instruction as given might apply to the question of good faith in case of a person representing himself to be in good health, but it sometimes occurs that one may unconsciously bear the seeds of a ravaging disease, or be the subject of a fatal but insidious malady, by reason of which his right to insurance or reinstatement would be lost. In this instance, to entitle her to reinstatement, the member must, aside from slight troubles or infirmities not usually ending in serious consequences, have been in fact free from any disease or ailment which tended seriously or permanently to weaken or impair her constitution. It was error, therefore, to give instruction No. 4 as it was worded and to use it by reference in a subsequent instruction.
Other complaints touching the instructions given are substantially answered by the decision in Allen v. Knights and Ladies, 102 Kan. 128, 169 Pac. 569.
It was not error as against the defendant to allow interest from the date the proofs of death were filed.
Certain findings of the jury wére doubtless materially influenced by the instructions as to good health, and for error in the charge in this respect the cause is reversed and remanded for further proceedings. | [
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The opinion of the court was delivered by
MASON, J.:
On February 26, 1897, William Messenheimer became a member of the Fraternal Aid Association, a beneficiary society incorporated under the laws of Kansas, receiving a certificate which provided for the payment of $1,000 to his wife in the event of his death, and for the payment of one-half that amount to himself in case of his total and permanent disability. Among the by-laws of the association at that time was one reading:
“All members arriving at the age of seventy years, who are in good standing in the Beneficiary Department, shall be, considered totally disabled.”
A similar corporation, the Fraternal Aid Union, has since succeeded to the rights .and obligations of the organization first mentioned. Having attained the age of seventy, Messenheimer brought an action against the present society asking for the payment to him of five hundred dollars. A demurrer to a petition alleging these facts was sustained, and he appeals.
The petition does not set out the purposes of the original corporation as stated in its charter. In an action against it which reached this court (Kirk v. Aid Association, 95 Kan. 707, 149 Pac. 400) the record contained a statement of them in these words:
“ ‘1. To promote fraternal regard among all white persons of sound bodily health and good moral character, who are socially acceptable and between the ages of eighteen and fifty-five years. 2. To bestow substantial aid upon totally disabled members, and the widows, orphans, heirs and devisees of deceased members. 3. To care for sick and distressed members. 4. To provide for weekly indemnity for members disabled by accident and provide for substantial benefits for widows, orphans, heirs and devisees of members whose deaths result from accidental causes.’ ” (p. 709.)
We are probably justified in assuming that this statement is correct, inasmuch as that case has been discussed in the briefs and arguments in the present case, and no suggestion to the contrary has been made. Moreover, there is no allegation in the petition that would warrant attributing to the corporation any broader powers than those enumerated. Upon that assumption, the casé referred to determines that at the time the plaintiff became a member of the association it had no authority to undertake to issue a certificate providing for the payment of a specified sum to the holder upon his reaching the age of seventy years. In the present instance the certificate did not in terms provide for the payment of $500 to the plaintiff when he reached that age, but the association undertook to accomplish the same result by agreeing to pay him that sum in the event of his total and permanent disability, a by-law then in existence declaring that all members in good standing should be considered totally disabled on becoming that old. We think there is no substantial difference in this regard between the Kirk case and the present one. Since the corporation was without power to contract directly to make payments to members at a certain age, irrespective of their actual bodily condition, it could not accomplish the same purpose by indirection through the device of a by-law providing that members should be deemed to be disabled at that age. These considerations require the affirmance of the judgment.
Since 1898 the statute has specifically defined the powers of a fraternal beneficiary association (Gen. Stat. 1915, §§ 5401, 5402), and the definition does not include that of making payments to its members on their reaching a certain age: (Kirk v. Aid Association, supra.) While it is not so stated in, the petition, it is admitted in the plaintiff’s brief that after the passage of the act referred to the by-laws of the association were amended to conform to it. The plaintiff contends, however, that it was beyond the power of the legislature or of the association to deprive him of the benefits of the contract as originally made. The certificate provided that it was liable to 'forfeiture if the plaintiff should not comply with “such by-laws as are or may be adopted by the general council.” Moreover, the plaintiff’s application for membership included an agreement in these words: “I further agree .. . . if I should fail to comply with or conform to any and all of the laws of said Fraternal Aid Association now in force or hereafter adopted that said benefit certificate shall be void.” We regard these provisions as the substantial equivalent of the clauses by which the member of a mutual benefit society agrees to be bound by by-laws subsequently made, and therefore as authorizing the change referred to. It follows that, .even if the association had had the power to obligate itself to pay the plaintiff $500 whenever he should reach the age of seventy (and we hold that it had not), it could,- under its reserved authority to alter its by-laws, change the benefits to accrue under the certificate so as to make them conform to its chatter and the laws of the state. (Kirk v. Aid Association, supra.)
The plaintiff suggests that the association was empow ered to make the contract referred to- by two sections of the-statute in relation to mutual life insurance associations, enacted in 1885. (Gen. Stat. 1915, §§ 5264, 5265.) These sections- authorize such associations “to make insurance on the lives of individuals, and against personal injury, disablement or death resulting from injury,” and forbid them “to con-' tract the payment of endowments, annuities, or anything of value to the member himself, except for injury or disablement.” We do not regard them as countenancing agreements to make payments because of the insured having reached a certain age.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
Ed Boothe and Maggie Boothe commenced this action to recover the damages sustained by them by reason of the defendant’s deeding to a third party real property which the defendant had contracted to convey to Ed Boothe. Afterward Ed Boothe died. Maggie Boothe, his wife, was appointed his administratrix, and was made a party plaintiff in this action. This is the second time this action has been in this court. (Boothe v. Dailey, 96 Kan. 711, 153 Pac. 551.) In the former opinion, it, was held that, as against a demurrer, the petition stated a cause of action. After being remanded, the action was tried by the court without a jury, and judgment was rendered in favor of the plaintiffs for $25. They appeal from that judgment, and urge that, under the evidence, judgment should have been rendered for a much larger amount.
The defendant contracted with Ed Boothe to convey to him certain real property in Johnson county, on the payment of .$1,250 in monthly installments. Payments to the amount of $702.06 were made under that contract. The defendant, by general warranty deed, conveyed the property to H. M. Witt. Soon thereafter, Witt commenced an action in forcible detention against the plaintiffs to recover the possession of the property. The plaintiffs employed counsel, and that action was dismissed. Witt then commenced an action against Ed Boothe to recover the amount unpaid under the contract -between Ed Boothe and the defendant. Judgment was rendered'in favor of Witt for all the unpaid installments. Boothe appealed to this court. The action was remanded with directions to the trial court to enter judgment in favor of Witt for the installments due on the contract at the time the action was commenced. (Witt v. Boothe, 98 Kan. 554, 158 Pac. 851.)
The plaintiffs made lasting and valuable improvements on the property, and the property increased in value after the contract was made. The plaintiffs contend that they should have recovered judgment for the payments made, for the attorney’s fees Contracted or paid, for the value of the improvements made, and for the increase in the value of the property.
If the plaintiffs had rescinded the contract, they would have been entitled to restoration of the purchase money and to compensation for the improvements made by them. (King v. Machine Co., 81 Kan. 809, 106 Pac. 1071; Read v. Loftus, 82 Kan. 485, 494, 108 Pac. 850; 39 Cyc. 1439, 1440; 2 Black on Rescission and Cancellation, §'§441, ,636.) Neither of the plaintiffs rescinded the contract with Dailey. They continued to remain in' possession of the property after the defendant deeded it to Witt. They could not rescind the contract without surrendering possession of the property. (Jeffries v. Forbes, 28 Kan. 174; Bell v. Keepers, 39 Kan. 105, 17 Pac. 785; The State, ex rel., v. Williams, 39 Kan. 517, 18 Pac. 727; Refrigerator Co. v. Pert, 3 Kan. App. 364, 366; Yaw v. Roberts, 9 Kan. App. 135; 39 Cyc. 1424.)
Although the plaintiffs can recover the damages they have sustained by reason of the conveyance from the defendant to Witt, yet they cannot retain possession of the property, and, at the same time, recover the payments they have made under the contract; and neither can they recover the value of the improvements made by them, nor the increase in the value of the property. They cannot keep the property without paying for it. If they keep the property, they keep the improvements made by them and reap the benefit of the increase in the value of the property. The plaintiffs kept the property. They could have compelled Witt to perform the contract they made with Dailey. (Boothe v. Dailey, supra; Witt v. Boothe, supra.)
It does not appear that the plaintiffs have lost any part of the payments made by them to the defendant. It does appear that they paid an attorney’s fee of $15 in the forcible, detention action commenced by Witt. That fee the plaintiffs are entitled to recover. They obtained judgment for $25. They are not entitled to recover the attorney’s fee contracted or paid in the action prosecuted by Witt to recover the remainder of the purchase price of the property, for the reason that Witt rightly brought that action to recover the installments that were then due. (Witt v. Boothe, supra.)
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The opinion of the court was delivered by
McFarland, C.J.:
This is a wrongful death and survivorship action seeking damages for the death of Felicia (Lisa) Bland. The district court dismissed the case as to all nonindividual defendants on the ground the plaintiffs had failed to state a claim on which relief may be granted. The dismissals were made final judgments pursuant to K.S.A. 2004 Supp. 60-254(b), thereby permitting immediate appeal therefrom despite the action continuing as to the named individual defendants.
STANDARD OF REVIEW
Before proceeding further, we need to state the rules relative to review of a dismissal for failure to state a claim.
In McCormick v. Board of Shawnee County Comm’rs, 272 Kan. 627, Syl. ¶ 1, 35 P.3d 815 (2001), cert. denied 537 U.S. 841 (2002), we stated:
“Upon appellate review of a district court’s order granting a motion to dismiss for failure to state a claim, an appellate court is required to assume that the facts alleged by the plaintiffs are true, along with any inferences reasonably to be drawn therefrom. The court must also decide whether those facts and inferences state a claim on the theories presented by the plaintiffs and also on any other possible theory.”
Since no discovery had taken place when the motion to dismiss was filed, the appellate court must rely on the pleadings and any exhibits attached thereto. Prager v. Kansas Dept. of Revenue, 271 Kan. 1, 4-5, 20 P.3d 39 (2001).
A district court’s dismissal of an action based on the failure to state a claim is a question of law subject to unlimited review. Ritchie Paving, Inc. v. City of Deerfield, 275 Kan. 631, Syl. ¶ 1, 67 P, 3d 843 (2003).
STATEMENT OF FACTS
Plaintiffs’ petition consists of 95 separately numbered paragraphs stating facts in general and also facts specific to each defendant, and the claims plaintiffs are asserting against each defendant. The facts relied upon by the district court in dismissing the case as to the defendants before us are taken from the petition filed by the plaintiffs and, as the district court stated, “are assumed as true.”
With the previously stated review requirements in mind, we place the issues in context by summarizing the facts as pled by the plaintiffs as follows. Sean Scott was 16 years old at the time of the events in issue. On the afternoon of September 16, 2000, Sean drove from the family home in Shawnee to visit his 19-year-old brother, Mike Scott, at the Phi Gamma Delta fraternity house in Lawrence where Mike resided. The Scott brothers stayed at the fraternity house for a few hours. They then went to The Wheel, a local bar, to join Dana and Lawrence Rieke, the mother and stepfather of the Scott brothers. At The Wheel, the Riekes provided the brothers and other minors in the party with alcoholic beverages, including beer and shots of tequila. The Riekes went to a football game, and the Scott brothers walked back to the fraternity house. While there, fraternity members provided Sean with substantial amounts of alcohol, including beer and shots of rum. They urged Sean to drink and ridiculed him if he did not want to drink more. Ultimately, Sean left the fraternity driving his car.
Sean traveled east on K-10 highway at a high rate of speed. He lost control of his vehicle, crossed the center median, and crashed into a vehicle driven by Lisa Bland. Ms. Bland died as a result of injuries received in the accident. Sean’s blood alcohol level was tested at .15. The record reflects Sean was subsequently convicted of involuntary manslaughter in Johnson County.
As it pertains to this appeal, plaintiffs filed a multi-count suit claiming, inter alia, negligence by Phi Gamma Delta, Inc.; negligence per se by Phi Gamma Delta, Inc; negligence by the University of Kansas (KU) under an assumption of duty theory; and negligence by The Fraternity of Phi Gamma Delta, Inc., Phi Gamma Delta House Corporation, and Phi Gamma Delta Chapter House Association, also under an assumption of duty theory. Generally, the claims under the assumption of duty theory rest on the Restatement (Second) of Torts § 324A (1964). Plaintiffs assert that through various policies governing the consumption of alcohol on campus or at the fraternity house, the fraternity defendants and KU had undertaken a duty to provide services to Sean which were necessary for the protection of the plaintiffs under facts as set forth in the petition.
At this point, it is appropriate to identify and differentiate among the Phi Gamma Delta defendants. According to the petition filed herein, these parties are: (1) The Fraternity of Phi Gamma Delta, Inc., a Kentucky corporation, which “operates and/or oversees” the operation of several chapters, including Pi Deuteron (Chapter 144 situated in Lawrence); (2) Phi Gamma Delta House Corporation, a Kentucky corporation, which “operates and/or oversees” housing for the fraternity’s chapters, including the Lawrence facility; and (3) Phi Gamma Delta Chapter House Association, a Kansas corporation, which owns and operates the premises where the Pi Deuteron chapter is located. Other facts pled by the plaintiffs will be stated as necessary to resolution of particular issues.
ALCOHOL PROVIDERS’ LIABILITY TO THIRD PARTIES
Dram Shop Act and Ling v. Jan’s Liquors Revisited
The key holdings of Ling v. Jan’s Liquors, 237 Kan. 629, Syl. ¶¶ 3-6, 703 P.2d 731 (1985), are:
“At common law, and apart from statute, no redress exists against persons selling, giving or furnishing intoxicating liquor for resulting injuries or damages due to the acts of intoxicated persons, either on the theory that the dispensing of the liquor constituted a direct wrong or that it constituted actionable negligence. Since Kansas does not have a dram shop act, the common-law rule prevails in Kansas. Stringer v. Calmes, 167 Kan. 278, 205 P.2d 921 (1949).”
“Breach of a duty imposed by law or ordinance may be negligence per se, unless the legislature clearly did not intend to impose civil liability. K.S.A. 41-715, which prohibits the dispensing of alcoholic liquors to certain classes of persons, was intended to regulate the sale of liquor and was not intended to impose civil liability. Thus, a liquor vendor’s violation of K.S.A. 41-715 is not negligence per se.”
“The common law is subject to modification by judicial decision in light of changed conditions. However, declaration of public policy is normally the function of the legislative branch of government.”
“The decision whether to impose liability upon the suppliers of alcohol for the torts of their intoxicated patrons is a matter of public policy which the legislature is best equipped to handle.”
With the exception of the minor driver, Sean Scott, the alleged claims against all other defendants, including KU and the fraternity entities, essentially arise from the providing of liquor to Sean and the injuries to and death of third party Lisa Bland caused by Sean while intoxicated.
The district court, in reliance upon Ling, dismissed the claims against the parties in this appeal. Nevertheless, the plaintiffs seek to avoid the consequences of the law as set forth in Ling by asking the court to:
1. Overrule Ling and judicially establish third-party liability against dispensers of alcoholic beverages to minors; or
2. Hold that a violation of the statutes prohibiting dispensing of alcohol to minors is negligence per se and gives rise to a separate cause of action; or
3. Limit Ling to its facts and distinguish it from the facts herein; or
4. Hold the Kansas Liquor Control Act, K.S.A. 41-101 et seq., unconstitutional (1) insofar as it did not supply a quid pro quo for the repeal of the dram shop act, and (2) as violative of Section 18 of the Bill of Rights of the Kansas Constitution; or
5. Allow a separate cause of action against the appellees herein based on an alleged violation of Restatement (Second) of Torts § 324A (1964) (undertaking to render services to an other which are necessary for the protection of a third person).
Ling v. Jan’s Liquors was an action by an injured third party against the liquor vendor who sold liquor to the minor who injured the third party in an automobile accident. The decision discussed the history and development of the dram shop law in considerable detail. In holding that an action in negligence could not be maintained under Kansas law, the Ling court noted that the common-law rule was based on the theory that the cause of the harm was “the act of the purchaser in drinking the liquor and not the vendor in selling it.” 237 Kan. at 635.
To support its reasoning, the Ling court set out the historical background of dram shop legislation beginning with the dram shop act enacted by the Kansas territorial legislature. That law provided a civil cause of action against the seller, the barterer, or the giver of intoxicating liquors for harm caused “by any intoxicated person or in consequence of intoxication.” 237 Kan. at 636. That law also survived three challenges to its constitutionality and was included in both the 1881 and 1923 revision of statutes. It read as follows:
“ ‘Every wife, child, parent, guardian or employer, or other person who shall be injured in person or property, or means of support, by any intoxicated person, or in consequence of intoxication, habitual or otherwise, of any person, such wife, child, parent or guardian, employer or other person shall have a right of action, in his or her own name, against any person who shall, by selling, bartering or giving intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, as well as for exemplary damages; and a married woman shall have the right to bring suits, prosecute and control the same, and the amount recovered, the same as if unmarried; and all damages recovered by a minor under this act shall be paid either to such minor, or to his or her parents, guardian, or next friend, as the court shall direct; and all suits for damages under this act shall be by civil action in any of the courts of this state having jurisdiction thereof.’ ” R.S. 1923, 21-2150.
The Kansas dram shop law was extremely broad. Liability was not limited to vendors of alcohol, and physical injury to a third party was not required. A wife’s or child’s loss of support owed by the husband or father was included. The broadness of the law is not surprising as Kansas was long recognized as being in the forefront of the temperance movement.
In 1947, an amendment to Art. 15, § 10 of the Kansas Constitution prohibited only the open saloon and gave the legislature broad sweeping power to regulate, license, and tax both the manufacture and sale of liquor; possession and transportation of liquor also became subject to regulation. L. 1947, ch. 248, sec. 1. Then in 1949, the legislature repealed certain statutes under the “Bone-Dry Law” in response to the repeal of the Kansas Constitutional prohibition law. In further exercising its power concerning liquor policy, the legislature enacted the “Kansas Liquor Control Act” (ch. 41, art. 1 through art. 27.). This Act embodied a comprehensive scheme regulating liquor from the time of its manufacture or importation until sold by a licensed retailer. Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 752, 408 P.2d 877 (1965). The Act included a prohibition against the sale of intoxicating liquors to minors which is still found in amended form at K.S.A. 41-715. The Ling court also emphasized another key aspect of the 1949 liquor legislation as follows: “The 1949 legislature — the same legislature which enacted the criminal regulatory statute — chose not to reenact the dram shop act. It was repealed in G.S. 1949, 41-1106, and has never been reenacted.” 237 Kan. at 637.
Ling found it significant that from the time the legislature repealed the civil liability statute in 1949 until 1985, there had been no reported case in Kansas asserting liability to third persons of one selling or furnishing liquor. “The last case to discuss the dram shop statute was Stringer v. Calmes, 167 Kan. 278, which was decided in 1949 prior to the repeal of the act. In that case the court held, unequivocally, that no common-law right of action existed.” 237 Kan. at 638.
The Ling court was especially aware of developments near the time it decided the case, noting:
“In recent years, the Kansas legislature has made control of drunken drivers a high priority matter. Significant legislation has tightened die laws which deal with such offenses. The legislature of this state has considered all aspects of die problem of drunken driving in seeking solutions to the problem.
“In 1984, limited dram shop legislation was introduced. (H.B. 2661). The proposed bill imposed liability on any person negligendy selling or furnishing alcoholic beverages to a minor where the minor, under the influence thereof, caused death, personal injury or property damage to another. The bill died after it was passed out of committee.
“On January 3,1985, dram shop legislation was proposed by the Kansas Attorney General. . . .
“Five days later (January 8, 1985), another press release from the Attorney General’s office stated:
....
‘ “If you have decided that you have come up with a bad idea then you have a responsibility to say so,” Stephan said. “I have the courage to make suggestions for legislative study, and also have the courage to know when my proposals to deter drunk driving should be modified.”
‘ “Upon reexamination, I believe that existing law can be strengthened to better combat drunk driving. The dram shop law which I proposed would only add to legal entanglements. Therefore, I am withdrawing my suggestion that a dram shop law be enacted and will continue to study further means to deal with drunk driving.’ ” ” 237 Kan. at 638-39.
Stephan’s proposed legislation would have given persons injured by an intoxicated person, their families, and employers the specific right to bring suit against liquor and beer retailers, private clubs, and taverns. The proposal suggested holding these entities liable for damages “if they sold beer or liquor to a person who already was intoxicated, or served them alcohol to the point of intoxication, provided that the intoxication contributed to the injury.” 237 Kan. at 639.
Against the foregoing historical background, Ling addressed the plaintiffs’ arguments, which are similar to those before us, as follows:
“Ling contends that the violation of K.S.A. 21-3610 and K.S.A. 41-715 (establishing criminal penalties for sale of alcoholic liquor to a minor) is a breach of a duty imposed by law and, thus, negligence per se. In other contexts this court has recognized the rule that breach of a duty imposed by law or ordinance is negligence per se, and that damages may be predicated on its violation if the breach is the proximate cause of the injury or damages or substantially contributes to the injury. Arredondo v. Duckwall Stores, Inc., 227 Kan. 842, 610 P.2d 1107 (1980); Kendrick v. Atchison, T. & S.F. Rld. Co., 182 Kan. 249, 260, 320 P.2d 1061 (1958). We decline to find negligence per se in this case since to do so would subvert the apparent legislative intention.
“The predecessor to K.S.A. 41-715 (of which K.S.A. 21-3610 was once a part) was first enacted in 1949, the same year the dram shop act was repealed. Since that time, the legislature, although it has considered it, has not re-created a civil cause of action in favor of those injured as a result of a violation of the liquor laws. Clearly, the legislature would have done so had it intended for there to be a civil cause of action. K.S.A. 41-715 prohibits the dispensing of intoxicating liquors to certain classes of persons and is a comprehensive act to regulate the manufacture, sale, and distribution of alcoholic liquors. The legislature did not intend for it to be interpreted to impose civil liability. Therefore, we hold that the Missouri liquor vendor’s violation of a criminal regulatory statute was not negligence per se.
“As previously noted, the common-law rule is that, in the absence of legislation, the suppliers of alcohol are not hable to the victims of an intoxicated tortfeasor. Stringer, 167 Kan. 278. The common law remains in force in this state where the constitution is silent or the legislature has failed to act. K.S.A. 77-109. However, the common law is not static. It is subject to modification by judicial decision in hght of changing conditions or increased knowledge where this court finds that it is a vestige of the past, no longer suitable to the circumstances of the people of this state. Indeed, we have not hesitated to adopt a new cause of action by judicial decision where we have determined that course was compelled by changing circumstances. See, e.g., Dawson v. Associates Financial Services Co., 215 Kan. 814, 529 P.2d 104 (1974) (creating new cause of action of intentional infliction of emotional distress); McCart v. Muir, 230 Kan. 618, 641 P.2d 384 (1982) (creating new cause of action for negligent entrustment). See also Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983).
“Although empowered to change the common law in light of changed conditions, this court recognizes that declaration of public policy is normally the function of the legislative branch of government. Whether Kansas should abandon the old common-law rule and align itself with the new trend of cases which impose civil liability upon vendors of alcoholic beverages for the torts of their inebriated patrons depends ultimately upon what best serves the societal interest and need. Clearly, this is a matter of public policy which the legislature is best equipped to handle.
“The court in Holmes v. Circo, 196 Neb. 496, 504-05, 244 N.W.2d 65 (1976) [accord Pelzek v. American Legion, 236 Neb. 608, 609-10, 463 N.W.2d 321 (1990)], made the following astute observation with which we agree:
We are mindful of die misery caused by drunken drivers and the losses sustained by both individuals and society at the hands of drunken drivers, but the task of limiting and defining a new cause of action which could grow from a fact nucleus formed from any combination of numerous permutations of the fact situation before us is properly within the realm of the Legislature.
‘The imposition of a common law duty of due care would create a situation rife with uncertainty and difficulty. If the commercial vendor is hable for negligence, does the host at a social gathering owe a duty to prospective victims of guests? The difficulties of recognizing intoxication and predicting conduct of an intoxicated patron without imposing some duty of inquiry are evident. Problems could also arise in the apportionment or sorting out of liability among the owners of various bars visited on “bar hopping” excursions. The correct standard of care to bé used also presents a problem, as does the determination of whether all acts of the patron, including intentional torts, should be included within the liability of the tavern owner or operator.’ ” 237 Kan. at 639-41.
Ling and its progeny continue to hold that civil liability in this area is a public policy decision left to the Kansas Legislature. See, e.g., Prime v. Beta Gamma Chapter of Pi Kappa Alpha, 273 Kan. 828, 835, 47 P.3d 402 (2002); Mills v. City of Overland Park, 251 Kan. 434, 438, 837 P.2d 370 (1992); Thies v. Cooper, 243 Kan. 149, 155, 753 P.2d 1280 (1988); Meyers v. Grubaugh, 242 Kan. 716, 719, 750 P.2d 1031 (1988); Fudge v. City of Kansas City, 239 Kan. 369, 375, 720 P.2d 1093 (1986).
We note the 2004 Kansas Legislature had the opportunity to enact a dram shop law. House Substitute for Senate Bill No. 437 provided for civil liability against a licensee for injury to third parties by a minor or incapacitated person — limited to cases involving sales and consumption on the licensee’s premises. Even this extremely narrow dram shop law failed to pass.
The 2005 Kansas Legislature had two more opportunities to enact dram shop laws. House Bill 2114 would have imposed liability under similar circumstances as 2004 Senate Bill 437. Senate Bill 144, as amended, would have imposed liability on a person hosting minors consuming alcoholic beverages on that person’s premises. Both measures failed to pass.
In Ling, liability was sought against a retail liquor dealer. The list at the end of the opinion tallies legislative and judicially created third-party actions against vendors of liquor. Courts and legislatures have been much more reluctant to impose liability in the noncommercial social setting. See Goldberg, One for the Road, Liquor Liability Broadens, 73 A.B.A. J. 84 (June 1, 1987).
As we observed in Mills v. City of Overland Park, 251 Kan. at 443:
“The enormous difficulty in dealing with civil liability arising from the furnishing of intoxicating liquor is demonstrated in reviewing Annot., Furnishing Intoxicating Liquor — Liability, 98 A.L.R.3d 1230. Every possible legal position appears therein as the law in other jurisdictions.”
The states are widely split on liability to third parties arising from the dispensing of alcohol in social settings. See Annot., Social Host’s Liability for Injuries Incurred by Third Parties as a Result of Intoxicated Guest’s Negligence, 62 A.L.R.4th 16.
Plaintiffs argue that Ling should be overruled and that this court should judicially establish a third-party cause of action broad enough to include the factual situation herein arising as it does in a social situation. This we decline to do and continue to hold that the decision to impose liability, and under what circumstances, upon the suppliers of alcohol for the torts of their intoxicated patrons or guests is a matter of public policy which the legislature is best equipped to handle.
Plaintiffs also argue that the furnishing of liquor or cereal malt beverages to a minor is a crime under K.S.A. 41-727, K.S.A. 21-3205, K.S.A. 21-3610, and K.S.A. 41-715. Thus, the violations thereof are negligence per se, thereby giving rise to a cause of action independent of a dram shop law. Virtually the same argument was raised in Ling. There the court noted that negligence per se causes of action may arise out of criminal statutes in other contexts, but “decline[d] to find negligence per se in this case since to do so would subvert the apparent legislative intention. . . . Clearly, the legislature would have [re-created a civil cause of action in favor of those injured as a result of a violation of the liquor laws] had it intended for there to be a civil cause of action.” 237 Kan. at 639-40. Further, the common-law rule proscribed civil liability for suppliers of alcohol for injuries resulting from the actions of intoxicated tortfeasors because any injuries were the result of the act of drinking, not the act of supplying. 237 Kan. at 635, 640. This same rationale was stated, adopted, and approved in Mills v. City of Overland Park, 251 Kan. 434; Meyers v. Grubaugh, 242 Kan. 716; and Fudge v. City of Kansas City, 239 Kan. 369.
Plaintiffs further argue that the holdings in Ling and its progeny should be limited to their facts. They seek to distinguish the case herein on the basis the fraternity members knew Sean Scott was a minor when they served him alcoholic beverages at the fraternity house. There is nothing in Ling or its progeny which supports such a distinction being made.
Plaintiffs next raise two constitutional arguments. First, they claim that the “Kansas Liquor Control Act is unconstitutional to the extent that it abrogates a common law remedy of persons injured by violations of the act.” When the legislature statutorily supplants a remedy provided by common law, subsequent restriction or abrogation of that protected remedy must be given an adequate substitute, or a quid pro quo. Such changes are constitutional if the changes are “reasonably necessary in the public interest to promote the general welfare of the people of the state, and the legislature provides an adequate substitute remedy to replace the remedy which has been restricted.” Lemuz v. Fieser, 261 Kan. 936, Syl. ¶ 4, 933 P.2d 134 (1997).
Second, plaintiffs also claim that the Kansas Liquor Control Act is unconstitutional as violative of Section 18 of the Bill of Rights of the Kansas Constitution, which provides: “All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
Defendants argue that these constitutional issues are not properly before the court as they are raised for the first time on appeal, citing State ex rel. Brant v. Bank of America, 272 Kan. 182, 31 P.3d 952 (2001).
Even if properly before this court, the constitutional arguments are without merit. First, Kansas did not recognize a common-law duty owed by suppliers of alcohol to third persons injured by an intoxicated person. See Ling, 237 Kan. at 635. Kansas enacted a dram shop act but later repealed it. This court has acknowledged that where the statutory remedy was not recognized under common law, changes to the statute do not require a quid pro quo. See Nichols v. Kansas Political Action Committee, 270 Kan. 37, 41-42, 11 P.3d 1134 (2000).
Second, as to the Bill of Rights argument, the plaintiffs are not without a remedy under the law to recover for their injuries. They have a cause of action against Sean, the tortfeasor.
In conclusion, we reject all challenges relative to the viability, extent, and applicability of Ling, whether asserted as an ordinary negligence claim or negligence per se. Kansas does not have a third-party action against vendors or dispensers of alcoholic bev erages for harm done to the third party by the person intoxicated from imbibing such beverages. Whether such liability is to be reinstated and under what circumstances and conditions are public policy decisions best handled by the legislature.
THE RESTATEMENT (SECOND) OF TORTS $ 324a (1964) ISSUE
The district court dismissed the claims based on the Restatement (Second) of Torts § 324A (1964) on the ground that no cause of action had been stated.
No useful purpose would be served by putting forth the various contentions raised on appeal. It is sufficient to say that one of the members of the court has died since this appeal was heard, and the remaining six justices are equally divided on this issue. Article 3, sec. 2 of the Kansas Constitution provides that the concurrence of four justices is necessary to a decision, and the rule is that when one justice is not participating in a decision and the remaining six justices are equally divided in their conclusions, the decision of the trial court must stand. See Tramill v. Holland, 210 Kan. 180, 499 P.2d 1075 (1972).
CONCLUSION
The facts herein are tragic. We are very aware that deaths and injuries on our highways caused by intoxicated drivers are a major problem for Kansas and the nation. In recent years, the legislature has increased the penalties for convictions of driving under the influence in the effort to reduce the carnage. As previously discussed in this opinion and in our previous decisions, the imposition of liability on vendors and/or providers of intoxicating beverages in favor of injured third parties involves veiy complex issues of public policy which the legislature is best equipped to determine and establish.
We conclude the district court did not err in dismissing the action as to the defendants before us on the ground the plaintiffs had failed to state a claim against them upon which relief could be granted.
The judgment is affirmed.
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The opinion of the court was delivered by
Nuss, J.:
A jury convicted Justin Elnicki of one count each of rape and aggravated criminal sodomy. The Court of Appeals affirmed in State v. Elnicki, 32 Kan. App. 2d 266, 80 P.3d 1190 (2003). This court granted Elnicki’s petition for review under K.S.A. 20-3018(b).
Elnicki’s six issues on appeal, and our accompanying holdings, are as follows;
1. Did the trial court err in allowing the jury to hear a detective’s opinions about Elnicki’s lack of credibility? Yes.
2. Did the prosecutor commit misconduct with her comments in closing argument? Yes.
3. Did cumulative error substantially prejudice Elnicki and deny him a fair trial? Yes.
4. Are Elnicki’s convictions for rape and aggravated criminal sodomy supported by sufficient evidence? Yes.
5. Did the trial court err in using Elnicld’s criminal history when sentencing for the nonbase offense? Moot.
6. Did the trial court err in using Elnicld’s juvenile convictions to calculate his criminal history score? Moot!
Accordingly, we reverse Elnicld’s convictions and remand for a new trial.
FACTS
J.A. reported to Topeka police that she had been raped and sodomized in and near a vehicle in north Topeka during the early morning hours of November 8, 2001. She sustained bumps, bruises, and scratches all over her body. Detective Karim Hazim of the Topeka police department was assigned to investigate. Later that day Justin Elnicld was arrested for the episode and interviewed by Hazim that evening at the police station. The interview lasted approximately 3% hours and was recorded on videotape.
Elnicki first told Hazim that he never met a girl that night. He said that he was drinking with friends and then went home. He explained that the scratch on his neck was from a fight with his friend.
When Hazim confronted him with identifying evidence from J.A., Elnicki next said that he was too drunk to remember, what happened. He said that he could have had sex with a girl, but did not remember if he had.
When Hazim told Elnicld that there was likely to be physical evidence linking him to the crime, Elnicki then remembered going to the Kwik Shop to buy cigarettes for his girlfriend. He told Hazim he met a girl there and talked about getting some marijuana. Elnicld said that she got into his truck and they left to get marijuana. At some point, they started kissing, and the girl performed oral sex on him. Elnicki said he was unable to get an erection and he did not ejaculate. After the interview, Hazim collected saliva, fingernail scrapings, and hair from Elnicki.
Several months later Hazim received a letter from Elnicki’s ex-wife which had been written by Elnicki on Februaiy 26,2002. The letter provided yet another account:
“I stoped [sic] at Kwik Shop to get some ciggarettes [sic]. There was a girl on the phone and we started talking and I asked her if she new [sic] where to find some bud [marijuana] and she said ya. So I asked her if she wanted a ride to go get it. She said sure so we put her bike in the back of the truck and we went to some house and she came back out and said she couldn’t get any so we drove off and I ended up parking in some parking lot and we did the rest of my meth. That’s when I asked her if she wanted to get freaky. She said no so I said well I will give you $25.00 she said alright. Well we started fooling around and I started fingering her and I noticed she didn’t have any pubic hair and I asked her why she shaved it and she said because her man liked it that way. Well anyway I got out to take a leak and when I got done peeing I told her to come here and she came to the drivers side of tire truck and I asked her to give me head and she got on her knees and started sucking my penis but it would not get hard and I told her to get in the truck because I was scared someone might drive bye [sic] and she started sucking my penis in the truck and it still would not get hard so I played with it a little and then she played with it to. [sic] Well we tryed [sic] to have sex and my penis would not get hard so we said fuck it and we sat up and started talking and she asked me if I still wanted to find some bud. I told her no I needed to get home and she asked me for the money for the blowjob and I told her no because I didn’t get nothing out of it and she said quit fucking around and give her the money. I told her to get her bike and get the fuck out of my truck. Then she grabbed my neck and I pulled away and she scratced [sic] the shit out of me. It made me real mad and I punched her a couple times and she ran so I chased her and hit her some more and she came after me so I put her in a head lock and she bit me so I punched her again and I ran to my truck and went home.”
Evidence at trial demonstrated that the rape examination of J.A. and subsequent analysis revealed one of Elnicld’s pubic hairs on her leg and his semen in her vagina. The blood stains discovered in his Blazer were determined to belong to J.A. Among other things, the jury also was shown Elnidri’s videotaped interrogation by Hazim from which references to Elnicki’s criminal experience had been deleted.
Upon Elnicki’s conviction for rape and aggravated criminal sodomy, the trial court sentenced him to a presumptive sentence of 618 months’ incarceration for the rape and a concurrent sentence for the aggravated criminal sodomy.
ANALYSIS
Issue 1: Did the trial court err in allowing the jury to hear a detective’s opinions about Elnicki’s lack of credibility P
Standard of review
Elnicld claims that the trial court erred in allowing the jury to watch his videotaped interrogation in which Detective Hazim stated his opinions on Elnicki’s credibility. The State suggests that our standard of review is for abuse of discretion based on the following:
“Admission of evidence is entrusted to tire sound discretion of the trial court. Discretion is abused only where no reasonable person would take the view adopted by the trial court. Absent a clear showing of abuse of discretion, eviden tiaiy findings of the trial court will not be set aside on appeal.” State v. Parker, 277 Kan. 838, 844, 89 P.3d 622 (2004).
In State v. Carter, 278 Kan. 74, Syl. ¶ 1, 91 P.3d 1162 (2004), however, we held that “evidentiaiy rules governing admission and exclusion may be applied either as a matter of law or in the exercise of the district judge’s discretion, depending on the contours of the rule in question.” When faced with the specific question of whether one witness may testify about another’s credibility, arguably the district judge has little, if any, discretion. See State v. Plaskett, 271 Kan. 995, 1009, 27 P.3d 890 (2001) (“trial court erred in allowing Detective Langer to express his opinion as to whether A.W. was telling the truth”).
Similarly, in Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 456, 14 P.2d 1170 (2000), while we acknowledged that an abuse of discretion standard is used in most cases involving the admissibility of scientific evidence, we held de novo review was appropriate there because the district court failed to correctly apply the standard of Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). We characterized the issue as a question of law. We cited, among other things, Koon v. United States, 518 U.S. 81, 100, 135 L. Ed. 2d 392, 116 S. Ct. 2035 (1996), which stated:
“Little turns, however, on whether we label review of this particular question abuse of discretion or de novo, for an abuse-of-discretion standard does not mean a mistake of law is beyond appellate correction. . . . The abuse-of-discretion standard includes review to determine that the discretion was not guided by erroneous legal conclusions.”
Based upon this case law, and as more fully explained in issue one, we hold that the proper standard of review of Hazim’s credibility comments on the videotape is de novo.
Discussion
Elnicki objected to the following statements by Hazim in the videotape played to the juiy:
1. “I’m a real honest person. I’m not gonna sit here and bullshit with you. And I would hope you’re not gonna bullshit with me; this is serious and you just told me a flat out lie."
2. “You didn’t get into a fight. I can tell. When somebody lies, their eyes shift, did you realize that?”
3. Elnicld stated, “You called me a liar.” Hazim replied, “I may have called you a liar.”
4. “I’m not gonna sit here and yell at you, I’m not gonna scream at you. I might call you a liar, that’s no big deal, but I’m not gonna disrespect you.”
5. “Well what’s gonna happen, you know, when you find yourself sitting in a courtroom or talking to your attorney and they pull up all this evidence and want to know where the hell it came from, you’re going to look pretty stupid sitting there saying you don’t know where it came from.”
6. “You tell me what you remember. All this other bullshit is a waste of your time and my time. You’re not doing yourself any justice at all.”
7. When Elnicki stated that he did not remember what happened, but that his girlfriend told him, Hazim said, “Justin! Bullshit! You’re sitting here bullshitting me.”
8. When Elnicki talked about getting in a fight with friends, Hazim said, “Justin, listen, you know what you’re doing? You’re weaving. You’re weaving a web of fucking lies, man.” (Emphasis added.)
Elnicld moved to redact those statements from the videotape, which the trial court denied. The court stated:
“All right. Well, I think it’s part and parcel of the statement, and I don’t think it impedes the prerogative of the jury to malee a finding one way or the other about who’s lying. I think people call people liars all the time, and it happens every day. That’s not binding on the Court, it is not binding on the jury, it is just an observation.”
When asked to review the tape, the court stated: “I know what’s on it, I know what’s at issue. I don’t need to look at it.”
Elnicki notes that the videotape had already been redacted for other purposes, e.g., his criminal history, and argues it could easily have been redacted to eKminate these statements. The State counters that Hazim’s statements are recommended interrogation techniques and that they provide context for Elnicki’s answers, particularly the three different accounts about the episode he gave during the interrogation. The Court of Appeals agreed that the comments were admissible because they gave context; as a result, the trial court did not abuse its discretion in refusing to redact. State v. Elnicki, 32 Kan. App. 2d 266, 272, 80 P.3d 1190 (2003). The Court of Appeals did note, however, that it would “probably be the better practice to give a cautionary instruction to the jury that statements made by officers in the course of interrogation are not sworn testimony and that only the jury can make determinations of the veracity of witnesses.” 32 Kan. App. 2d at 272-73.
The issue of whether to allow a jury to view a videotape containing law enforcement’s comments on a defendant’s credibility such as Detective Hazim’s is one of first impression in Kansas.
We start our analysis with the well-known rule that a witness may not express an opinion on the credibility of another witness. State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986). This is because the determination of the truthfulness of a witness is for the jury. Plaskett, 271 Kan. at 1009. Moreover, the overwhelming majority of our recent decisions do not invoke an abuse of discretion or other standard of review for this issue. This absence strongly indicates an absolute prohibition against admission of this type of evidence. See Plaskett, 271 Kan. at 1008-09 (“trial court erred in allowing Detective Langer to express his opinion as to whether A.W. was telling the truth”); State v. Manning, 270 Kan. 674, 698, 19 P.3d 84 (2001) (“[q]uestions which compel a defendant or witness to comment on the credibility of another witness are improper”); State v. Mullins, 267 Kan. 84, 97, 977 P.2d 931 (1999) (line of inquiry equivalent to asking one witness if another witness was telling the truth was improper, “and the trial court erred in allowing the question to be answered”); State v. Lash, 237 Kan. 384, 386, 699 P.2d 49 (1985) (question “clearly was improper” because it called for an expression of expert’s opinion about the credibility of witnesses); cf. State v. Steadman, 253 Kan. 297, 304, 855 P.2d 919 (1993) (“[t]he admission of witnesses’ testimony that in their opinion the defendant was guilty . . . deprived the defendant of his right to a fair trial”); cf. State v. Jackson, 239 Kan. 463, 470, 721 P.2d 232 (1986) (“we think it was error for the trial court to permit the witnesses to testify and tell the jury that in their opinions the defendant committed the acts of molestation with which he was charged”). Contra State v. Arrington, 251 Kan. 747, 753, 840 P.2d 477 (1992).
In light of our prior decisions, we conclude the trial court has no discretion on whether to allow a witness to express an opinion on the credibility of another witness; such evidence must be disallowed as a matter of law.
While Kansas courts have not specifically addressed admissibility of a police officer’s statements about a defendant’s credibility in a videotaped interrogation, other jurisdictions have, with mixed views.
In Dubria v. Smith, 224 F.3d 995 (9th Cir. 2000), the Ninth Circuit Court of Appeals considered a habeas petition from an inmate who claimed that he was denied a fair trial because of the admission of an unredacted tape from his police interview. In that tape, officers repeatedly told the petitioner that no judge or jury would believe him if he stuck to his stoiy. 224 F.3d at 1000. The court found that the tape was of an “unremarkable interview” and did not present evidence or theories of die case that were not presented at trial. The statements were questions that gave context to petitioner’s answers, “not the types of statements that carry any special aura of reliability.” 224 F.3d at 1001, 1002. Furthermore, the court stated, any error was cured by two cautionary instructions given by the court, e.g., cautioning that the detective’s statements “are not to be considered for the truth, they are only to be considered as how they may give meaning to the answers.” 224 F.3d at 1002. The court concluded the statements did not violate Dubria’s fundamental right to due process. 224 F.3d at 1002. However, the court did not decide whether the admission of the statements violated the rules of evidence.
In a split decision, a majority of the Washington Supreme Court found the admission of such videotapes to be error, but a separate majority found any error to be harmless. State v. Demery, 144 Wash. 2d 753, 30 P.3d 1278 (2001). Similar to the court in Dubria, a majority of the Demery court stated that when die trial court admits third-party statements to provide context to a defendant’s responses, the trial court should give a limiting instruction to the juiy, explaining diat only die defendant’s responses, and not the third party’s statements, should be considered as evidence. The court observed, however, that no such instruction was required in that case because “the jury clearly understood from the officer’s testimony that the statements were offered solely to provide context to the defendant’s relevant responses.” 144 Wash. 2d at 762.
Missouri appellate courts appear to take an even more lenient view in allowing admission of this evidence. In State v. Palmes, 964 S.W.2d 241, 243-44 (Mo. App. 1998), the Missouri Court of Appeals found no error whatsoever in the trial court’s admitting an audiotape containing an officer’s opinions on credibility because it was part of the give-and-take of an interrogation trying to elicit a response from the defendant, not expert opinion at trial, (citing State v. O’Brien, 857 S.W.2d 212 [Mo. 1993]); cf. State v. Kluck, 968 S.W.2d 206, 208 (Mo. App. 1998) (no error in allowing detective to testify that he did not believe the defendant because each time he would tell defendant he did not believe him, defendant would tell him a different version of what occurred; detective was merely recounting the “give-and-take” of the interview).
Pennsylvania appellate courts appear to take the opposite view. In Commonwealth v. Kitchen, 730 A.2d 513, 521 (Pa. Super. 1999), the Superior Court of Pennsylvania agreed with the trial court that comments where the police, either directly or indirectly, accused Kitchen of lying “must be redacted from the videotapes” of his interrogation. The court stated:
“When the troopers stated to Appellee, ‘You’re lying,’ or “We know that you’re lying’ or phrases to that effect, their statements were aldn to a prosecutor offering his or her opinion of the truth or falsity of the evidence presented by a criminal defendant, and such opinions are inadmissible at trial. [Citation omitted.] The troopers’ statements could also be analogized to a prosecutor’s personal opinion, either in argument or via witnesses from the stand, as to the guilt or innocence of a criminal defendant, which is inadmissible at trial. [Citations omitted.]” 730 A.2d at 521.
Accord Commonwealth v. Bolish, 381 Pa. 500, 525-26, 113 A.2d 464 (1955) (admission of tape recording, in which among other things the district attorney several times accused defendant of lying, deprived defendant of a fair trial).
In an analogous situation, where the officer testified he had told the defendant during the interrogation that he did not believe him, the Washington Court of Appeals in State v. Jones, 117 Wash. App. 89, 91-92, 68 P.3d 1153 (2003), addressed the State’s argument that the officer was simply explaining his “interrogation technique” to the jury. The court disagreed:
“We find no meaningful difference between allowing an officer to testify directly that he does not believe the defendant and allowing the officer to testify that he told the defendant during questioning that he did not believe him. In either case, the jury learns the police officer’s opinion about tire defendant’s credibility. And clothing the opinion in the garb of an interviewing technique does not help. As five of the justices determined in [State v. Demery, 144 Wash. 2d 753, 30 P.3d 1278 (2001)], an officer’s accusation that a defendant is lying constitutes inadmissible opinion evidence. [Demery, 144 Wash. 2d at 765 (concurrence), 767 (dissent)]. Here, the jury heard that [Officer] Wilken did not believe Jones’ comment that the gun was not his and that he did not know it was under die seat. This was a comment on Jones’ credibility.” 117 Wash. App. at 92.
The Jones court held that allowing the officer s comment was error and that a limiting instruction would not have cured the harm. It reversed and remanded.
Finally, in State v. Cordova, 137 Idaho 635, 51 P.3d 449 (Ct. App. 2002), the Court of Appeals of Idaho first found that an officer s statement on videotape that he was an expert in deception detection was improperly admitted, stating:
“As opposed to the unremarkable interview’ observed in Dubria [v. Smith, 224 F.3d 995 (9th Cir. 2000)], the second officer’s comments regarding his training and experience gave him the same aura of superior knowledge that accompanies expert witnesses in other trials. Accordingly, the second officer’s assertions that Cordova was not being truthful appeared to be the comments of an expert, rather than the comments of a lay person investigating a crime. Although we agree with the court in Demery, that the tactics employed in Cordova’s interrogation are acceptable interrogation tactics, we do not agree that certain comments, which may be permissible for purposes of interrogating a defendant, are also admissible in court for consideration by the jury.” (Emphasis added.) Cordova, 137 Idaho at 641.
The Cordova court next found that this officer’s comments did not give context to Cordova’s answers, since they were not connected to a question, but instead made as to a statement to Cordova. The court did find, however, that other statements by the police indicating that they believed Cordova was lying gave context to Cordova’s inculpatory statements and were therefore admissible. It also found trial court error in admitting tire statements without a limiting instruction informing die jury that the police questioning was relevant only for tire limited purpose of providing context to the defendant’s answers and should not be considered for the truth of the officer’s statements made therein. Cordova, 137 Idaho at 641-42. Because of other evidence in the case, however, the court concluded that both errors were harmless. Cordova, 137 Idaho at 642.
A synthesis of tire referenced case law leads us to conclude that it was error for Detective Hazim’s comments disputing Elnicld’s credibility to be presented to the jury. The jury heard a law enforcement figure repeatedly tell Elnicld drat he was a liar; that Elnicld was “bullshitting” him and “weaving a web of lies.” The jury also heard the same law enforcement figure suggesting he could tell Elnicld was lying because Elnicld’s eyes shifted. A jury is clearly prohibited from hearing such statements from the witness stand in Kansas and likewise should be prohibited from hearing them in a videotape, even if the statements are recommended and effective police interrogation tactics. As far as context for Elnicki’s answers are concerned, tire State could have safely accomplished its goal simply by having Detective Hazim testify and point out the progression of Elnicki’s various stories as the tape was played — minus Hazim’s numerous negative comments on Elnicld’s credibility. The absence of a limiting instruction merely compounded the already serious problem, misleading the jury into believing that Hazim’s negative comments carried the weight of testimony.
The full impact of the error in allowing Hazim’s statements on Elnicld’s credibility to be played to the jury is analyzed — together with the question of the impact of the prosecutor’s similar statements to the juiy — in our discussion of issues two and three.
Issues 2 and 3: Did the prosecutor commit misconduct with her comments in closing argument and did cumulative error substantially prejudice Elnicki and deny him a fair trial?
Elnicld next contends that, just as it was error for the jury to hear Hazim’s negative comments on Elnicki’s credibility, it was prosecutorial misconduct for the prosecutor during closing argument to express her personal opinion on Elnicld’s credibility, J.A.’s credibility, and the truth of the State’s case. Elnicki made no objection to these statements at trial.
We recently stated our standard for reviewing such circumstances in State v. Tosh, 278 Kan. 83, 85, 91 P.3d 1204 (2004):
“A two-step analysis is applied to allegations of prosecutorial misconduct. First, the court decides whether the prosecutor’s comments were outside the wide latitude allowed in discussing the evidence. Second, the court must decide whether the comments constitute plain error; that is, whether the statements are so gross and flagrant as to prejudice the jury against the defendant and deny him or her a fair trial, thereby requiring reversal. The facts of each case must be scrutinized in determining whether a prosecutor’s remarks deny the defendant a fair trial. If the prosecutor’s statements rise to the level of violating a defendant’s right to a fair trial and deny a defendant his or her Fourteenth Amendment right to due process, reversible error occurs without regard to a contemporaneous objection. State v. McHenry, 276 Kan. 513, 522, 78 P.3d 403 (2003).”
Elnicld complains that the following italicized prosecutorial statements in closing argument were improper comment on his credibility:
“The defendant’s story of-what happened lacks plausibility and credibility. And I think you can see diat most clearly and in the fascinating way that it progresses from a total lack of any memory and ever being anywhere and totally being with his friends to the final yam that explains away each and every cut, bruise, and piece of physical evidence.
....
“. . . And did you notice how certain he is during that period of time when Hazim continues to challenge this fairy tale? He is certain he was nowhere but with his friends and his girlfriend. He proclaims clearly that he did not have sex with anyone that night. He is with Josh Martin until 4:30 when he goes home.
“But that is not accurate. That is a story. It’s a fabrication of this defendant that he devised to protect himself. You know it, and Detective Hazim knew it that night.
“The second phase of his story is I know nothing. It’s a change. His tall tale isn’t working, so you got to have an alternate version. . . .
....
“The third part of this yam, it’s really a miraculous memory recovery, it’s a miracle, the fog is lifting. ... He told Detective Hazim that in this recall over and over again that this was consensual oral sex. He is clear in this fabrication, though, that he never got an erection and he never
....
“Do you suppose if his wife hadn’t turned this [the 2002 letter] over to Detective Hazim you would have ever gotten this version of the truth? And what is he ejaculated. trying to do even with this version? What he is trying to do is spin it. You have all heard spin. The spin is this. Focus here, which explains everything away, and maybe you will all forget that previous four hours and all the other three versions. Maybe you will forget that if he spins this correctly. . . .
....
“The injuries had to have come after any — any sexual content — contact in this case. They had to come afterward, in defendant’s yam, because otherwise it looks forced. . . .
....
“Ladies and gentlemen, as you listen to the defense, you will hear that it is [J.A.] who is fabricating. You will hear that she made everything up. But consider if you will the yarn spun here, the four-part yarn. . . .
....
“Don’t let the defense poo-poo the defendant’s four-part statement to you saying, well, it’s the State’s burden of proof, so it doesn’t really matter if he lied. . . .
....
“Ladies and gentlemen, beyond a reasonable doubt the State has proved its case. [J.A.] may have been immature, she may have been stupid, but she was raped and she was forced to suck his dick, and he did it and he didn’t care. And, ladies and gentlemen, the truth shows you beyond a reasonable doubt the defendant is guilty of the crimes ivith which he is charged. Thank you.” (Emphasis added.)
The State responds that these statements were fair comment on Elnicld’ s four versions of the events — (1) that Elnicld had been drinking at a bar and then went home and that the scratches were from a fight with a friend; (2) that Elnicki was too drunk to remember what happened and that he could have had sex with a girl, but did not remember; (3) that Elnicld went to the Kwik Shop to buy cigarettes for his girlfriend and met a girl there; that at some point they got in his Blazer, started making out, and that she voluntarily performed oral sex; and (4) the version in Elnicld’s 2002 letter. Additionally, the State contends that the prosecutor never expressed her personal knowledge or opinion on Elnicld’s credibility, but was commenting on the unbelievability of his versions based on his four conflicting stories and the physical evidence. The Court of Appeals agreed.
Elnicki also complains that the State vouched for J.A.’s credibility when the prosecutor stated during closing arguments: “He is threatening to her. He is threatening the whole time. The force, she is very consistent about the force he was using, does not change on the force at all. And the demands he was making, the things he was saying to her, you know she was telling you the truth.” (Emphasis added.)
The State responds that this comment followed a recitation of the consistencies in J.A.’s testimony and the physical evidence, and was made in rebuttal to defense counsel’s closing argument that J.A.’s testimony was unbelievable. The Court of Appeals agreed.
As mentioned, our first analytical step is to determine whether these remarks were outside the wide latitude allowed in discussing the evidence. See State v. Tosh, 278 Kan. at 85. In State v. Pabst, 268 Kan. 501, 996 P.2d 321 (2000), this court considered both categories of the misconduct alleged in the instant case: (1) the prosecutor’s closing argument that accused the defendant of lying — 11 times — and (2) the prosecutor’s comment on the credibility of his own witnesses. This court found that both types of statements were improper, stating:
“Whether couched in terms of the State or the prosecutor, die assertion that Pabst lied was improper. See State v. Lockhart, 24 Kan. App. 2d 488, 492, 947 P.2d 461 (1997). It was also improper for the prosecutor to claim, We didn’t lie to you,’ in an attempt to bolster the credibility of the State’s witnesses. See State v. Mosley, 25 Kan. App. 2d 519, 525, 965 P.2d 848, rev. denied 266 Kan. 1113 (1998) (involving prosecutor’s comment on the credibility of his own witnesses).” 268 Kan. at 506.
The Pabst court looked at the Kansas Rules of Professional Conduct and the American Bar Association Standards of Criminal Justice (3d ed. 1993) and determined: “Our rules of conduct clearly and unequivocally say that it is improper for a lawyer to comment on a witness’ credibility.” 268 Kan. at 506. This court further stated:
“Both the prosecutor and the trial judge have a responsibility to ensure that closing argument is kept within the proper bounds. ABA Standard 3-5.8(e).
“Pabst’s credibility was crucial to the case. The prosecutor placed before the jury unsworn testimony which it should not have considered: his personal opinion on Pabst’s credibility and the credibility of the State’s evidence. Stating facts not in evidence is clearly improper. See State v. Bradford, 219 Kan. 336, Syl. ¶ 4, 548 P.2d 812 (1976). Accusing Pabst of lying goes far beyond the traditional wide latitude afforded to prosecutors in closing argument. See Lockhart, 24 Kan. App. 2d at 492. Inherent in this wide latitude is the freedom to craft an argument that includes reasonable inferences based on the evidence. When a case develops that turns on which of two conflicting stories is true, it may be reasonable to argue, based on evidence, that certain testimony is not believable. However, the ultimate conclusion as to any witness’veracity rests solely with the jury.” (Emphasis added.) 268 Kan. at 507.
The Pabst court specifically disapproved of contrary language in State v. McClain, 216 Kan. 602, 608, 533 P.2d 1277 (1975), where that court stated: “ "Counsel may comment on the credibility of a witness where his remarks are based on the facts in evidence and a considerable latitude is allowed in that discussion.’ ” 268 Kan. at 507.
Notwithstanding our holding in Pabst, in State v. Finley, 273 Kan. 237, 42 P.3d 723 (2002), this court found that the prosecutor’s statement, ‘"He’s said various things at various times, and the reason why people do that is because they can’t keep all the lies straight” was a proper comment based on evidence, not on the prosecutor’s personal knowledge of the defendant’s veracity. 273 Kan. at 246. Similarly, we found it was not error for the prosecutor to say, “Tom and Denise are the only ones that really have a motive to fabricate any lies in this case” and “Tom and Denise had plenty of time to get their stories straight, to conjure up what they were going to tell you all.” We did find error, however, to the extent the prosecutor expressed her belief as to credibility when she stated, “And I’m sorry, but I just can’t buy this story that Tom and Denise come up with that Tom was somewhat of a hero risking his life to go in and save these people in the house.” 273 Kan. at 247.
Similarly, in State v. Moore, 274 Kan. 639, 646, 55 P.3d 903 (2002), the prosecutor in closing argument made the statements, “[Njothing that you’ve been told here in the last two days should indicate to you that she’s a liar” and "Well, she already paints him as a liar just by that alone.” This court held that those two statements were not outside the considerable latitude the prosecutor is allowed in discussing the evidence. 274 Kan. at 646. “[T]he prosecutor was explaining to the jury why, in light of the evidence presented, Moore’s story was not feasible.” 274 Kan. at 646. We also held the “comments were not so gross and flagrant as to prejudice the jury against the defendant and to deny him a fair trial.” 274 Kan. at 646-47; see also State v. Douglas, 274 Kan. 96, 49 P.3d 446 (2002), cert. denied 537 U.S. 1198 (2003) (prosecutor’s characterization of defendant’s version of facts as “unbelievable” did not rise to the level of conduct in Pabst, but calling defendant’s story “ridiculous and absurd and ludicrous” appeared to be improper comment).
However, in State v. Graham, 277 Kan. 121, 129, 130, 83 P.3d 143 (2004), we criticized the prosecutor’s statements during closing argument, “I submit to you [the defendant] didn’t tell you anything that was true,” and “I caught [defendant] by surprise. She had to come up with that [answer],” and finally, “It’s hard to make things up on the fly I would submit to you.” We held the prosecutor’s comments were outside tire wide latitude in discussing the evidence but not so gross and flagrant as to prejudice the jury and deny defendant a fair trial. 277 Kan. at 131-32.
In the instant case, in describing what the prosecutor argued were four versions of Elnicki’s statements regarding die episode, she did not use the specific word “lie,” but used terms such as “yarn,” “fairy tale,” “fabrication,” “tall tale,” and “spin.” Nevertheless, in State v. Finley, 273 Kan. at 247, we held: “Pabst informs us the use of the word ‘lie’ or its derivative should be avoided by prosecutors . . . .” According to Webster’s Third New International Dictionary 2647 (1967), one definition of “yarn” is “an entertaining narrative of real or fictitious adventures.” (Emphasis added.) Similarly, “fairy tale” is defined as “an implausible, incredible, or lying story; a story designed to delude or mislead.” Webster’s 816. (Emphasis added.) Likewise, “fabrication” is defined as “the invention or utterance of something calculated to deceive.” Webster’s 811. (Emphasis added.) “Spin” can be defined as “to evolve, express, or fabricate by processes of mind or imagination.” Webster’s 2195. (Emphasis added.) In short, the prosecutor argued, through a thin disguise, that each of Elnicki’s four versions of the episode was a “lie.”
We acknowledge that, unlike the defendants in cases such as Pabst, Elnicki did not merely give a version contrary to J.A.’s, but rather gave inconsistent statements himself. The Court of Appeals addressed a defendant’s two inconsistent statements in the context of allegations of prosecutorial misconduct in State v. Smith, 28 Kan. App. 2d 56, 11 P.3d 520 (2000). The Smith court stated:
“Here, it was permissible for the State to point out tire inconsistencies in Smith’s statements. Both versions of Smith’s story cannot be true and at least one of the versions must be fabricated. By telling inconsistent stories, Smith opened the door for the State to comment on the reasonable inference that his testimony was not believable. Specifically, it was permissible for the State to argue that Smith’s testimony that the drugs belonged to Harvey was not credible based on his statement to Officer Davis.
“Nevertheless, it was the duty of the jury, not the State, to ultimately decide which, if any, of Smith’s statements was believable. As such, the prosecutor should have confined his arguments to what the evidence showed: Smith’s statements were inconsistent. Instead of simply pointing out the inconsistencies in Smith’s statements and noting that at least one of the stories must be fabricated, the prosecutor used prejudicial language when he made statements such as, ‘There is no doubt whatsoever that he’s a liar.’
“Although the State is permitted wide latitude in closing argument and may point out inconsistencies in a defendant’s statements, we find that the State committed prosecutorial misconduct by repeatedly referring to Smith as a liar. The State’s unprofessional comments on the evidence fie far beyond the traditional wide latitude afforded to prosecutors in closing argument. See Lockhart, 24 Kan. App. 2d at 492. As a result, even though Smith opened the door for fair comment on his veracity, we find that the prosecutor committed prosecutorial misconduct by repeatedly referring to Smith as a liar during closing arguments.” (Emphasis added.) 28 Kan. App. 2d at 67-68.
Similarly, in the instant case, although Elnicld did not testily at trial, his credibility was placed in issue by his statements to Hazim and by his letter. At the outset, we acknowledge our language in Finley, Moore, and Douglas, suggests that several of the prosecutor’s statements arguably could be fair comment on the evidence regarding Elnicki’s first three versions of the episode, since each was succeeded by yet another inconsistent Elnicki version. However, clearly the same cannot be said about his final, written version. Her comments about his final version — a “fabrication,” “yarn,” “final yarn,” and “the yam spun here, the four-part yarn” — are not based upon a later inconsistent statement, and were unquestionably outside the wide latitude allowed in discussing the evidence. Moreover, we agree with the holding of the Court of Appeals in State v Smith, i.e., the repeated reference throughout the closing argument to the defendant as a “liar” — or the term’s alleged euphemisms, as here — is itself improper.
Regarding the prosecutor’s comment on the credibility of the victim, J.A., we acknowledge that a prosecutor should not comment on the credibility of his or her own witnesses. State v. Pabst, 268 Kan. at 506 (citing State v. Mosley, 25 Kan. App. 2d at 525). It may be argued that the statement “you know she was telling you the truth” was only a rebuttal comment by the prosecutor after defendant’s closing argument challenging J.A.’s credibility. Defense counsel had made repeated references to “her lies” and “she’s lying.” As we stated in State v. McKinney, 272 Kan. 331, 347, 33 P.3d 234 (2002), “[w]e have held that there is no prejudicial error when questionable remarks made by a prosecuting attorney are provoked and made in response to previous arguments or statements of defense counsel.” While the prosecutor’s comments here about J.A. are not necessarily prejudicial, they are nevertheless error. Furthermore, defense counsel’s comments on J.A.’s credibility in closing may themselves have been provoked, given they followed the jury hearing Hazim’s derogatory comments about Elnicld’s credibility on the videotape, and immediately followed the jury hearing the prosecutor’s initial closing argument about Elnicld’s yarns, tall tales, and fairy tales.
For tire same reason, we hold it was error for the prosecutor to conclude her closing argument with “the truth shows you beyond a reasonable doubt the defendant is guilty of the crimes with which he is charged.” This is improper comment on “die credibility of the State’s evidence.” Pabst, 268 Kan. at 507.
The first requirement of the test for prosecutorial misconduct having been met, we turn to the second, i.e., whether the comments were so gross and flagrant as to prejudice the jury against Elnicld and deny him a fair trial, thereby requiring reversal. See Tosh, 278 Kan. at 85.
In Tosh we explained that three factors should be considered in determining whether to grant a new trial because of prosecutorial misconduct: (1) whether the misconduct is so gross and flagrant as to deny the accused a fair trial; (2) whether the remarks show ill will on the prosecutor’s part; and (3) whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors.
We acknowledged in Tosh that the first of these three factors merely repeated
“in part the statement of the ultimate second step of the analysis: “Whether the misconduct was so gross and flagrant that it denied the defendant a fair trial.’ Thus, the second step of the analysis is essentially directed to whether the misconduct is so prejudicial that it denies the defendant a fair trial. This analysis requires a particularized harmlessness inquiry utilizing the three factors . . . .” Tosh, 278 Kan. at 93.
In Tosh, we further acknowledged that none of these three factors is individually controlling, but that there are degrees of seriousness in such misbehavior. “[O]ur appellate courts must have the freedom to consider those degrees and their likely effects as they decide whether the misbehavior before them in a given case merits reversal and remand for new trial.” Tosh, 278 Kan. at 93-94. We counseled caution in a court's evaluation of the third harmlessness factor: “We must avoid using this factor and the weight of inculpatory evidence as a default, a shortcut past careful comparison of the often competing influences of the first two factors.” Tosh, 278 Kan. at 97. Accordingly, we held:
“Before the third factor can ever override the first two factors, an appellate court must be able to say that both the K.S.A. 60-261 [“inconsistent with substantial justice”] and the Chapman [v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967) (error harmless beyond a reasonable doubt in that it had little, if any, likelihood of having changed the result of the trial)] harmlessness tests have been met. If this can be said, then certainly it will also be true ‘that tire misconduct would likely have little weight in tire minds of jurors.’ ” Tosh, 278 Kan. at 97.
With this analytical framework in mind, we examine the first factor in our particularized harmlessness inquiry in the instant case, i.e., did the misconduct prejudice tire jury against Elnicki? We hold that it did. The credibility of J.A. and Elnicki were paramount to determining one of the main issues in tire case, i.e., consent to the sexual acts. The prosecutor's numerous and colorful closing comments regarding Elnicld’s lack of credibility had to have harmed him. Moreover, these negative comments were harmfully layered on top of Detective Hazim’s prior statements on the videotape calling Elnicld a liar.
Regarding the second factor, the question of the prosecutor’s ill will is a more difficult one. On the one hand, she appears to have carefully avoided using any variation of the word “lie.” On the other hand, her comments were deliberate and repeated, featuring various synonyms expressing negative opinions on Elnicki’s credibility, e.g., his account is a “four-part yarn.” We clearly cautioned in February 2000 in State v. Pabst, 268 Kan. 501, against prosecutors commenting on a witness’ credibility. Our notification included not only the professional warning that it violated Kansas and American Bar Association ethical standards, but also a practical one, i.e., reversal of Pabst’s first-degree murder conviction based almost entirely upon improper prosecutorial remarks. Additionally, on March 15, 2002, we stated that Pabst informed “us the use of the word ‘lie’ or its derivative should be avoided by prosecutors.” State v. Finley, 273 Kan. at 247. In light of the prosecutor’s failure to heed our warnings during the Elnicld trial in late March 2002, we hold that her statements demonstrated some ill will.
Regarding the third factor, the evidence was not of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors. Although the evidence was uniform that Elnicki and J.A. were together and that Elnicki had sex, or attempted to have sex, with her, the jury was asked to decide between two explanations of the physical evidence — J.A.’s injuries, J.A.’s blood on the seats of the Blazer, scratch and bite marks on Elnicld, his semen in J.A.’s vagina, and Elnicki’s pubic hair found on J.A.’s thigh. In Elnicki’s version of events, the sexual activity was consensual, but then resulted in Elnicki beating J.A. In J.A.’s version of events, Elnicld raped, sodomized, and beat her throughout the sexual assault. As stated previously, consent was a central issue and was clearly in dispute.
Pabst illustrates the dangers of a prosecutor interjecting himself or herself into the jury’s resolution of competing stories on a central issue:
“In assessing prejudice, it is important to first recognize that the jury here had to decide whether the shooting was accidental or planned. The prosecutor should have confined his arguments to what the evidence showed. Instead, the prosecutor’s improper argument commented on what the jury inevitably had to decide: whether Pabst’s assertion of an accidental shooting was a fabrication. The prosecutor’s statements are problematic because he improperly and prejudicially attempted to introduce evidence [his opinion on defendant’s credibility] on the ultimate issue.” (Emphasis added.) 268 Kan. at 509.
Based upon the prosecutor’s repeated negative comments during closing argument about Elnicld’s “yarns,” “fairy tales,” and “tall tales,” and her positive comments about the credibility of J.A. and of the State’s “truthful” evidence, we hold that both the state test (K.S.A. 60-261) and federal test (Chapman v. California) for reversible error have been met on this issue. See Tosh, 278 Kan. at 97. Although this is a close call, we reverse Elnicki’s conviction and remand for a new trial.
The decision to reverse and remand is greatly strengthened, however, by our having held the trial court also erred in allowing the jury to hear Detective Hazim’s negative statements on the videotape. As mentioned, those statements also impermissibly allowed comment on the defendant’s credibility in a case where a key factor was the credibility of the defendant and the alleged victim. Similar to the prosecutor in Pabst who improperly commented on the credibility of witnesses regarding the ultimate issue in the case, a police officer improperly commented on the credibility of the defendant regarding the ultimate issue during an interrogation in State v. Jones, 117 Wash. App. 89, 68 P.3d 1153 (2003). The court stated:
“We find no meaningful difference between allowing an officer to testify directly that he does not believe the defendant and allowing the officer to testify that he told the defendant during questioning that he did not believe him.
....
“Here, the jury heard that [Officer] Wilken did not believe Jones’ comment that the gun was not his and that he did not know it was under the seat. This was a comment on Jones’ credibility. But the State contends that the error, if any, was harmless. Again we disagree. The only issue in the case was whether Jones constructively possessed the gun. And this came down to whether Jones knew the gun was under his seat. Jones said he did not; Wilken said he did not believe Jones. We conclude tlrat an instruction would not have cured the harm. Accordingly, the misconduct requires that we reverse and remand for a new trial. [Citation omitted.]” 117 Wash. App. at 92.
Cf. State v. Plaskett, 271 Kan. 995, 1007-09, 27 P.3d 890 (2001) (allowing a law enforcement witness to testify about another witness’ credibility was itself reversible error); State v. Jackson, 239 Kan. 463, 467-70, 721 P.2d 232 (1986) (allowing SRS investigators to testify that in their opinion the victim was telling the truth was itself reversible error); contra State v. Manning, 270 Kan. 674, 697-702, 19 P.3d 84 (2001) (though error, improper questioning did not prejudice the jury against accused and deny him a fair trial); State v. Mullins, 267 Kan. 84, 97, 977 P.2d 931 (1999) (though error, was harmless under K.S.A. 60-261 in light of other evidence).
Under our facts, however, we need not determine whether the improper allowance of Detective Hazim’s statements itself constitutes reversible error or simply harmless error under K.S.A. 60-261. See Plaskett, 271 Kan. at 1031 (allowing a law enforcement witness to testify about another witness’ credibility was reversible error; if not, the cumulative effect of the trial errors substantially prejudiced defendant and denied him a fair trial, requiring reversal of conviction). In short, we readily agree with Elnicki’s third argument, i.e., that cumulative trial errors prevented him from receiving a fair trial, justifying reversal of his convictions and remand for a new trial. See State v. Lumbrera, 252 Kan. 54, Syl. ¶ 1, 845 P.2d 609 (1992).
Issue 4: Are Elnickis convictions for rape and aggravated criminal sodomy supported by sufficient evidence?
Although we are reversing and remanding for a new trial, we must also address Elnicki’s argument that insufficient evidence exists to support his convictions. As we stated in Pabst, 268 Kan. at 512:
“Because we have decided that the prosecutor’s misconduct denied Pabst a fair trial, we must also address Pabst’s sufficiency of the evidence argument. ‘[A] reviewing court must consider all of the evidence admitted by the trial court in deciding whether retrial is permissible under the Double Jeopardy Clause.’ Lockhart v. Nelson, 488 U.S. 33, 41, 102 L. Ed. 2d 265, 109 S. Ct. 285 (1988); see Burks v. United States, 437 U.S. 1, 11, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978).”
Our standard of review for the issue is well known:
“When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Remmers, 278 Kan. 598, Syl. ¶ 1, 102 P.3d 433 (2004).
This standard and the standard for determining whether error is harmless or reversible in issues two and three both consider the evidence in the record. The standard of review of the present issue, however, requires considerably less evidence to sustain the convictions than the amount required to establish the harmlessness of any error. Accordingly, in Pabst we concluded that evidence of premeditation was sufficiently convincing under the standard of review to support the conviction, but not overwhelming so as to prevent reversal and remand for new trial on the basis of prosecutorial misconduct. See Pabst, 268 Kan. at 511.
The Court of Appeals thoroughly addressed Elnicki’s sufficiency of the evidence argument and rejected it. It stated in relevant part:
“After pointing out all the consistencies of the evidence supporting a consensual encounter, Elnicki argues that even if the evidence is viewed in the fight most favorable to the State, the evidence did not support his convictions. We disagree. Elnicki is asking us to find there is no way a reasonable jury could find him guilty based on the inconsistencies of J.A.’s testimony. He also presents his version as what must be accepted. The jury sorted through all the inconsistencies claimed by Elnicki and found J.A.’s story to be the more credible — that is the jury’s responsibility. This court does not weigh conflicting evidence, pass on credibility, or redetermine questions of fact. [Citation omitted.]. We find there is sufficient evidence to support Elnicki’s convictions. While a set of facts may be so improbable as to be insufficient to support a conviction, see State v. Matlock, 233 Kan. 1, 660 P.2d 945 (1983), that is not the case here.” 32 Kan. App. 2d at 276.
We agree with the Court of Appeals holding. Reviewing all of the evidence, viewed in the light most favorable to the State, we conclude beyond a reasonable doubt that there was sufficient evidence to support the convictions in this case. Accordingly, the decision of the Court of Appeals is affirmed on this issue. The remaining issues on appeal are moot.
The decision of the Court of Appeals affirming the district court is reversed. The decision of the district court is reversed and the case is remanded for new trial.
Luckert, J., not participating.
Larson, S.J., assigned. | [
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|
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against respondent Marlin E. Johanning of Atchison, an attorney admitted to the practice of law in Kansas.
The complaint filed against the respondent Johanning, alleged the respondent violated KRPC 1.1 (2004 Kan. Ct. R. Annot. 342) (competence); KRPC 1.3 (2004 Kan. Ct. R. Annot. 354) (diligence); KRPC 1.4 (2004 Kan. Ct. R. Annot. 367) (communication); and KRPC 3.2 (2004 Kan. Ct. R. Annot. 440) (expediting litigation).
A disciplinary panel of the Kansas Board for Discipline of Attorneys conducted formal hearings, as required by Kansas Supreme Court Rule 211 (2004 Kan. Ct. R. Annot. 275).
Based upon clear and convincing evidence, a unanimous hearing panel made the following findings of fact:
“Complaint of Robert Grimmig — DA9034
“2. In November, 1988, E.M.G. was bom to Victoria L. Hunt and Robert Grimmig. On February 28,1990, Mr. Grimmig was arrested. He has been incarcerated continuously since that time.
“3. Later, Ms. Hunt and Ross D. Blanc married. Then, on February 8, 2002, Mr. Blanc filed a step-parent petition for adoption of E.M.G. Mrs. Hunt Blanc consented to the adoption by her husband. Mr. Grimmig did not consent to the adoption.
“4. The Court scheduled a hearing on Mr. Blanc’s petition for March 15, 2002.
“5. On March 4, 2002, Mr. Grimmig filed an answer to the petition, an objection to the adoption, and an objection to changing the child’s name.
“6. On March 15, 2002, the Court appointed the Respondent to represent Mr. Grimmig and rescheduled the hearing for March 27, 2002.
“7. On March 27, 2002, the Court held a hearing on the petition for adoption. Mr. Grimmig appeared with the Respondent. At the conclusion of the hearing, the Court granted the petition for adoption because Mr. Grimmig failed to assume the duties of a parent for over two consecutive years immediately prior to the filing of the petition.
“8. On April 8, 2002, the Respondent filed a timely notice of appeal in behalf of Mr. Grimmig.
“9. The Respondent did not file a motion for appointment of appellate counsel nor did the Respondent withdraw as counsel of record in the adoption case.
“10. The Respondent failed to file a docketing statement, as required by the Kansas Supreme Court Rules.
“11. On August 20, 2002, Mr. Grimmig made a request for appointment of appellate counsel. The Court appointed the Respondent to represent Mr. Grimmig in the pending appeal.
“12. After the Court appointed the Respondent, the Respondent faded to file a docketing statement as required by the Kansas Supreme Court Rules.
“13. One year later, on August 20, 2003, the Respondent filed a motion to docket appeal out of time. On August 26, 2003, the Kansas Court of Appeals denied the Respondent’s motion to docket the appeal out of time.
“14. The Respondent filed a motion to reconsider. The Court denied the Respondent’s motion to reconsider. In its order, the Court stated:
‘On August 26, 2003, this court issued an order denying the appellant’s motion to docket his appeal out of time. The appellant has filed a motion to reconsider this order. The motion is denied. The record available to this court shows a delay of some three months between the filing of the notice of appeal and the filing of a request for appointment of counsel. No explanation is offered that would constitute exigent circumstances for the delay in requesting appellate counsel or for the lengthy delay between the request for appellate counsel and the subsequent attempt to docket the appeal. The court reiterates its concern about the need for finality in matters of placement of and parental responsibility for a child.’
“Complaint of David W. Chapman — DA9064
“15. In 2001, David W. Chapman was convicted of a felony crime in the District Court of Atchison County, Kansas, in case number 01CR58, and sentenced to prison.
“16. On May 11, 2001, trial counsel filed a notice of appeal in Mr. Chapman’s case.
“17. On May 22, 2001, the Appellate Defender’s Office was notified that it had been appointed to represent Mr. Chapman in the appeal. On June 25, 2001, the Appellate Defender’s Office filed a motion to docket appeal out of time. On July 11, 2001, the Kansas Court of Appeals granted the motion.
“18. The Appellate Defender’s Office prepared a brief in behalf of Mr. Chapman. On March 11, 2002, the Appellate Defender’s Office filed the brief. After reviewing the brief filed in his behalf, Mr. Chapman contacted the Appellate Defender’s Office, expressed his dissatisfaction with the brief, and demanded that the brief be corrected and expanded. On May 7, 2002, the Appellate Defender’s Office filed a motion for permission to withdraw as appellate counsel. The Court allowed the Appellate Defender’s Office to withdraw on May 20, '2002.
“19. On May 20, 2002, and again on July 8, 2002, the Court directed Mr. Chapman to respond to the order or ‘the case [will be] set on the next available no argument docket.’
“20. On July 18, 2002, Mr. Chapman responded to the Court’s order by filing a motion to stay the appeal, a motion for the appointment of counsel, and a motion that additional facts and issues be included in the appeal.
“21. On July 30, 2002, the Court stayed the appeal, pending the appointment of counsel. On August 8, 2002, the Court appointed the Respondent to represent Mr. Chapman. The Court directed that the Respondent review the record and notify the Court whether further briefing would be required by September 3, 2002.
“22. Rather than notifying the Court whether further briefing would be required by September 3, 2002, the Respondent merely entered his appearance.
“23. On September 18, 2002, Mr. Chapman notified the Court that he had not heard from the Respondent. Mr. Chapman requested that the appeal be stayed until additional facts and issues could be presented to the Court.
“24. On October 4, 2002, the Court issued an order regarding status of the appeal. In its order, the Court stated:
‘Appellant’s motion to stay the above-captioned case along with his motion for investigation, de-novo review, appointment of new counsel and motion to force the State to supply a copy of their brief, are denied.
‘The Court notes that in its order dated July 30, 2002, granting Appellant’s motion for stay of the appeal pending appointment of new counsel, the Court ordered newly appointed appellate counsel to notify this court, within 20 days of appointment, whether additional briefing was required. The records on file with the Clerk of the Appellate Court shows Marlin Johanning was appointed to represent Appellant on August 8,2002. As the time for response has passed, this case is returned to ready status with the briefs already on file and the case will be set on the next available summary calendar-no oral argument docket.’ A note on the order indicates that a copy of the order was sent to counsel.
“25. On October 9, 2002, the Respondent filed another motion to stay the appeal.
“26. On October 23, 2002, the Court denied the Respondent’s motion to stay the appeal and issued a scheduling order, allowing the Respondent additional time to file a supplemental brief. The order stated:
‘Appellant’s motion to stay the above-captioned appeal is denied. Appellant’s newly appointed counsel’s motion to file a brief on behalf of Appellant is granted. Counsel’s motion for a 45 day extension of time to file his brief is denied. Appellant’s brief is to be filed and served no later than November 22, 2002, Appellant’s counsel is ordered to notify this Court as of the date the new brief is filed whether Appellant wishes the prior Appellant’s brief struck. Appellee will have 30 days after the date Appellant’s brief is filed to file a revised Appellee’s brief, or notify this Court that additional briefing is not required. As this case has been pending over one year, no extensions of time will be granted.’
“27. On November 22, 2002, the Respondent filed a supplemental brief in behalf of Mr. Chapman. Thereafter, on February 6, 2003, the State filed a supplemental brief. On February 21,2003, the Court scheduled the case for summary calendar, no oral argument.
“28. On June 6, 2003, the Court affirmed Mr. Chapman’s conviction.
“29. On June 30, 2003, the Respondent filed an ‘Objection to Both the Process Leading to, and the Forum of, Summary Calender No Oral Argument Docket, and Appellant’s Motion for Rehearing or Modification.’
“30. The Court denied the Respondent’s motion for rehearing. The Court provided the Respondent with five additional days to file a petition for review. The Respondent failed to file a petition for review within the allotted time period.
“31. Thereafter, on August 6, 2003, the Respondent filed a motion for leave to docket petition for discretionary review out of time. On August 12,2003, Chief Justice Kay McFarland denied the Respondent’s final motion in Mr. Chapman’s case.”
Johanning did not file exceptions to any of these findings of fact. Under Supreme Court Rule 212(c), “[a]ny part of the hearing report not specifically excepted to shall be deemed admitted.” (2004 Kan. Ct. R. Annot. 285) We, therefore, adopt the disciplinary panel’s findings of fact, concluding the findings are supported by clear and convincing evidence. See Supreme Court Rule 211(f) (2004 Kan. Ct. R. Annot. 275) (misconduct to be established by clear and convincing evidence).
Based upon these findings, the disciplinary panel made the following conclusions of law:
“CONCLUSIONS OF LAW
“1. Based upon the findings of fact, the Hearing Panel concludes as a matter of law that the Respondent violated KRPC 1.1, KRPC 1.3, and KRPC 3.2, as detailed below.
“2. Lawyers must provide competent representation to their clients. KRPC 1.1. ‘Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ The Respondent failed to competently represent Mr. Grimmig when he failed to properly prepare a timely motion to docket the appeal out of time. Accordingly, the Hearing Panel concludes that the Respondent violated KRPC 1.1.
“3. Attorneys must act with reasonable diligence and promptness in representing their clients. See KRPC 1.3. In this case, the Respondent failed to provide diligent representation to Mr. Grimmig and Mr. Chapman. Regarding Mr. Grimmig, the Respondent failed to provide diligent representation when he failed to timely file a motion to docket appeal out of time. The Respondent failed to provide Mr. Chapman with diligent representation when he failed to request that the appeal be removed from the summary calendar docket and scheduled for oral argument. Additionally, the Respondent failed to timely file a petition for review in Mr. Chapman’s case. Because the Respondent failed to act with reasonable diligence and promptness in representing Mr. Grimmig and Mr. Chapman, the Hearing Panel concludes that the Respondent violated KRPC 1.3.
“4. An attorney violates KRPC 3.2 if he fails to make reasonable efforts to expedite litigation consistent with the interests of his client. In this case, the Respondent failed to expedite Mr. Grimmig’s appeal. It took the Respondent one full year from the time he was appointed to file a motion to docket the appeal out of time. Accordingly, the Hearing Panel concludes that the Respondent violated ICRPC 3.2.”
The panel did not address a violation of KRPC 1.4.
The disciplinary panel then considered the factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter “Standards”). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer s mental state, the potential or actual injury caused by the lawyer s misconduct, and the existence of aggravating or mitigating factors. The disciplinary panel concluded:
“Duty Violated. The Respondent violated his duty to his clients to provide competent and diligent representation.
“Mental State. The Respondent knowingly violated his duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused Mr. Grimmig and Mr. Chapman potential injury — the outcomes of their cases may have been different had the Respondent provided competent and diligent representation.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Prior Disciplinary Offenses. The Respondent has been previously disciplined in three cases:
“On April 6, 1998, in DA6800, the Disciplinary Administrator informally admonished the Respondent for having violated MRPC 1.2, MRPC 1.3, MRPC 1.4, MRPC 1.7, and MRPC 1.8. [Footnote omitted.]
“The Disciplinary Administrator also informally admonished the Respondent on April 6, 1998, in DA6893. In that case, the Review Committee directed that the Disciplinary Administrator informal admonish the Respondent for having violated MRPC 1.3 and MRPC 1.4.
“On June 1, 2001, the Kansas Supreme Court censured the Respondent for having violated KRPC 1.3, KRPC 1.4, and KRPC 1.15 in DA7747. The Court’s censure was published in the Kansas Reports at In re Johanning, [271 Kan. 638, 23 P.3d 895] (2001).
“A Pattern of Misconduct. Included in this case are two complaints. The complaints involve similar misconduct. Additionally, the Respondent has previously been disciplined in three cases. All of the previous cases have included a violation of the rule requiring diligent representation. Accordingly, the Respondent engaged in a pattern of misconduct.
“Multiple Offenses. The Respondent violated KRPC 1.1, KRPC 1.3, and KRPC 3.2. As such, the Respondent committed multiple offenses.
“Vulnerability of Victim. Mr. Grimmig and Mr. Chapman were vulnerable to the Respondent’s misconduct because they were incarcerated and did not have ready access to substitute counsel.
“Substantial Experience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 1979. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of 23 years. Accordingly, the Hearing Panel concludes that the Respondent had substantial experience in the practice of law at the time he engaged in the misconduct.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following mitigating circumstances present:
“Absence of a Dishonest or Selfish Motive. Dishonesty and selfishness were not motivating factors in this case.
“The Present and Past Attitude of the Attorney as Shown by the Respondent’s Cooperation During the Hearing and the Respondent’s Acknowledgment of the Transgressions. The Respondent fully cooperated in the disciplinary process as exhibited by his complete acknowledgment of the misconduct.
“Previous Good Character and Reputation in the Community Including any Letters from Clients, Friends, and Lawyers in Support of the Character and General Reputation of the Attorney. The Respondent is an active and productive member of the bar in Atchison, Kansas. He enjoys the respect of his peers and clients and generally possesses a good character and reputation.
“Remorse. At the hearing on the Formal Complaint, the Respondent expressed genuine remorse.”
In addition to the above-cited factors, the disciplinary panel cited and considered Standard 4.42, which states guidelines for when suspension is the appropriate discipline, and Standard 4.43, stating guidelines for reprimand. The Disciplinary Administrator recommended to the panel that the respondent be suspended from the practice of law for a period of 6 months. Johanning proposed probation. Following the first day of hearing, the disciplinary panel issued an interim order, directing the respondent to expand and implement a plan of probation, paying close attention to Supreme Court Rule 211(g) (2004 Kan. Ct. R. Annot. 275). Respondent resubmitted a probation plan and, at the continued hearing, presented the testimony of Dan Wiley who had agreed to serve as a practice supervisor. After hearing the additional evidence, the disciplinary panel unanimously recommended that the respondent be suspended from the practice of law in the state of Kansas for a period of 1 year. However, the disciplinary panel recommended that the court suspend the imposition of the suspension and place the respondent on probation for a period of 18 months.
This court views the conclusions of law and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993). Again, respondent does not take exception to any of the disciplinary panel’s conclusions. The panel’s conclusions are amply supported and we agree with and adopt the panel’s conclusions of law and recommendations.
Johanning violated KRPC 1.1 (2004 Kan. Ct. R. Annot. 342), KRPC 1.3 (2004 Kan. Ct. R. Annot. 354), and KRPC 3.2 (2004 Kan. Ct. R. Annot. 440).
It Is Therefore Ordered that the respondent be suspended from the practice of law in the state of Kansas for a period of 1 year. Imposition of the suspension is suspended and the respon dent is place on probation for a period of 18 months subject to the following terms and conditions:
1. Dan K. Wiley, an attorney at law practicing in Leavenworth, Kansas, will supervise the respondent’s probation and monitor his practice for a period of 18 months from the date of the court’s opinion or until such time as the court discharges the respondent from probation pursuant to Kansas Supreme Court Rule 211(g)(7) and (8) (2004 Kan. Ct. R. Annot. 275). Throughout the period of probation, the respondent shall compensate Mr. Wiley for time expended in the supervision of the respondent’s practice.
2. Mr. Wiley shall be acting as an officer and agent of the court while supervising the respondent’s probation and monitoring the legal practice of the respondent.
3. Mr. Whey shall be afforded all immunities granted by Kansas Supreme Court Rule 223 (2004 Kan. Ct. R. Annot. 323) during the course of his activities as directed by the court.
4. Mr. Wiley shall meet with the respondent on a monthly basis or more frequently if he deems it necessary or as directed by the Disciplinary Administrator. The respondent will allow Mr. Wiley access to his files, his employees, his trust account, and his doctors or therapists, if any.
5. While familiarizing himself with the respondent’s practice, Mr. Wiley should determine whether the respondent’s practice of law should be limited to certain areas. In the event Mr. Wiley determines that the respondent’s practice should be limited, Mr. Wiley shall notify the respondent and the Disciplinary Administrator’s office in writing of such a determination. The respondent shall comply with any practice limitations Mr. Wiley places on him.
6. Mr. Wiley shall report to the Disciplinary Administrator on a quarterly basis or as directed by the Disciplinary Administrator. Mr. Wiley shall report to the Disciplinary Administrator regarding the respondent’s progress, the changes made to organize the respondent’s practice, relevant observations regarding the respondent’s practice, and any problems he observes related to the respondent’s practice. Mr. Wiley shall provide the respondent with a copy of each such report to the Disciplinary Administrator. The respondent shall follow all recommendations and correct all defi ciencies noted in Mr. Wiley s reports. In the event Mr. Wiley becomes aware that the respondent has violated the Kansas Rules of Professional Conduct or other rules of the Kansas Supreme Court, Mr. Wiley shall immediately report such violations to the Disciplinary Administrator.
7. Mr. Wiley shall monitor the following:
i. the status of each case on the respondent’s case list and whether the respondent is diligently representing his clients;
ii. the respondent’s docketing system;
iii. the respondent’s management of discovery;
iv. the respondent’s trust account;
v. the respondent’s responses to client’s requests for information and whether the respondent is otherwise providing adequate communication with his clients; and
vi. tire views of the local judges as to their evaluation of the respondent’s performance.
8. The respondent shall furnish Mr. Wiley with a copy of any notice of appeal filed by him during the period of his probation.
9. The respondent shall furnish Mr. Wiley with a complete inventory, including case name, case number, client name, subject matter, and pending deadlines. The respondent shall keep all meetings scheduled with Mr. Wiley.
10. The respondent shall submit to all testing recommended by the Kansas Lawyer’s Assistance Program (KLAP) to determine whether he is in need of further assessment and/or treatment for clinical depression. In the event such testing indicates such a need, the respondent will execute a monitoring agreement with KLAP and obtain such further assessments, counseling, and treatment as recommended by KLAP or the evaluator. The respondent shall execute release forms to allow his treatment providers, if any, to communicate with Mr. Wiley and the Disciplinary Administrator.
11. The respondent shall maintain a competent nonlawyer office staff, consisting at least of a paralegal/office manager employed for no less than 16 hours per week. The paralegal/office manager shall assist the respondent in communicating with clients, maintaining an adequate calendaring system, reminding the respondent of upcoming deadlines, and other professional responsibilities of the respondent. The paralegal/office manager shall be charged with the task of reminding the respondent of calls and letters to the office which need to be acknowledged and shall remind the respondent on repeated occasions in those instances where it appears that he has not yet acknowledged the inquiries directed to his office. While it is the duty of the paralegal/office manager to assist the respondent in his practice of law, the responsibility of providing competent and diligent representation and complying with the Kansas Rules of Professional Conduct rests solely with the respondent.
12. The respondent shall control client intake so as to not overtax his office capacity to responsibly serve all clients at all times. In addition, the respondent shall not attempt to conduct appellate court work in more than two cases at any one time without consultation with and prior approval of Mr. Wiley.
13. In addition to the standard continuing legal education requirements, the respondent will attend at least 3 additional hours of continuing legal education on appellate practice in each reporting period during the period of probation.
14. In the event the respondent fails to comply with one or more terms and conditions of probation, the respondent shall immediately inform Mr. Wiley and provide the Disciplinary Administrator with an affidavit setting forth each failure.
15. After receiving an affidavit from the respondent or upon receiving any other creditable evidence that the respondent has violated one or more probation conditions, the Disciplinary Administrator may proceed as provided in Kansas Supreme Court Rule 211(g)(9) (2004 Kan. Ct. R. Annot. 275).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs of the proceeding be assessed to respondent.
Lockett, J., Retired, assigned. | [
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Per Curiam:
N. N. Hastings brought a suit to quiet title against several defendants, and failing to recover prosecutes error. Various questions are argued in the briefs which cannot be considered, as it is impossible to ascertain from the record whether they were passed upon by the trial court. The petition alleged that plaintiff was in the possession of the property in controversy. This allegation was a material one, inasmuch as the suit was brought under the statute (Gen. Stat. 1901, § 5081), the pleading being too general to be sufficient upon any other theory. No special findings were made or asked. The judgment may have been based upon a decision against the plaintiff on the issue as to possession, the evidence thereon being conflicting. Under such circumstances we can only affirm it. | [
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Per Curiam:
The only question in this case is if the trial court correctly interpreted a’ written contract. The plaintiff sued upon it as containing an express agreement to pay the freight upon certain machinery and machine supplies. To make out a case, however, it was assumed the language of the writing did not clearly express the intention of the parties and certain oral negotiations and statements were pleaded to show what the plaintiff claimed for the words used.
If the contract be ambiguous, it is not so in respect to the subject upon which the parties disagree. It contains no promise of the kind the plaintiff needs to support a recovery. The explanatory matters pleaded would simply make another engagement for the parties, inconsistent with the language of the instrument itself. If the plaintiff has a contract for the payment of the items sued for it is not in this document, and must be relied on in virtue of its own character and terms.
The petition does not count upon two contracts, an oral one and a written one. The allegations respecting oral statements between the parties merely give force to the plaintiff’s interpretation of the writing, which is the actual basis of the suit and upon which a recovery is sought.
The defendant files a cross-petition in error challenging the district court’s interpretation of another part of the contract, but the district court was right in that matter also. There is nothing whatever in the language used indicating that the expenditure of the funds given for advertising was a condition precedent to the recovery of commissions earned. If the plaintiff has broken this part of the contract the defendant’s remedy does not lie in depriving it of commissions for machinery actually sold.
There is no substantial dispute between the parties concerning the rules of law by which the controversy is to be solved, and they need not be formally discussed.
The judgment of the district court is affirmed. | [
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|
Per Curiam:
On November 11, 1904, W. S. Traxon obtained a judgment by default against the Missouri, Kansas & Texas Railway Company before a justice of the peace in Labette county. The case was taken to the district court of that county by appeal, where it was tried April 21, 1905. The action was brought to recover damages for hay destroyed by a fire alleged to have been set out by' the defendant in operating a passenger-train on its railroad between Parsons and Coffeyvill'e.
The defendant moved to make the plaintiff’s bill of particulars more definite and certain, the sole ground of which was to require the number of the engine which set out the fire to be stated. The motion was denied. This ruling of the court is assigned as error. The only description of the engine or train given in the bill of particulars is contained in the part thereof which reads:
“That said company, on the 16th day of September, 1904, while running one of its passenger-trains southwesterly on said road, in said county, managed its said train so carelessly and negligently, and failed to employ suitable means to prevent the escape of fire from the engine that was running or pulling said train, so that by reason of its carelessness and negligence aforesaid fire escaped from the engine of said company and set fire to the dry grass and other material on its right of way, and by reason of a continuous body of dry grass and other material, and without any fault of plaintiff, it was communicated to the leased premises in possession of plaintiff.”
The motion directed to the above-quoted part of the petition is as follows:
“And now comes the defendant and asks the court to set forth the number of the engine which is claimed set the fire complained of in the bill of particulars.”
The plaintiff might, by alleging the time when the train passed where the fire started, or by giving a general description of the train, have enabled defendant to identify the engine more easily. The court, without doubt, would have allowed any reasonable motion of this nature. The plaintiff did not see the engine or train, and knew nothing of the fire until two hours after it was extinguished. It was impossible for him to give the number of the engine. The number of an engine is rarely seen or remembered by any person not engaged in railway service. It is- averred in the bill of particulars that the engine which set out the fire was taking a passenger-train from Parsons to Coffey-ville, on September 16, 1904. The record does not show that the railway company was operating so many passenger-trains over that branch as to make it difficult to ascertain from this statement the particular engine in question, and .this court is unable to take judicial notice that such fact existed on that line at that time.
We are unable to infer material injury to the defendant from this ruling of the court. The motion was unreasonable, and we think properly denied.
Some other questions are presented, but they are not of sufficient importance to justify further consideration. The judgment is affirmed. | [
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Per Curiam:
This suit was brought to enjoin the city of Kansas City and its officers from collecting a reassessment of the cost of paving a part of Fifth street in that city. The petition in the case is very long and no good purpose would be subserved in reproducing it at length here.
A general demurrer was filed by the defendants to the petition, and the demurrer was sustained by the court. The plaintiffs elected to stand on their petition, the injunction was denied, and they bring the case here to reverse the order.
It is urged that the plaintiffs, or others who then owned the real property against which the reassessment is now levied and to restrain the collection of which this suit was brought, in a former action, before a court of competent jurisdiction, on the same facts and under the same law, obtained a perpetual injunction debarring the defendants from doing the very acts which it is sought to enjoin them from doing by this suit. This judgment, it is said, is res judicata, and estops the defendants. The petition, however, shows that the injunction pleaded was under a different ordinance, which was passed prior to the enactment of chapter 122 of the Laws of 1903.
On the authority of Kansas City v. Silver, 74 Kan. 851, 85 Pac. 805, it is held that the petition does not state facts sufficient to constitute a cause of action, and the order and judgment of the court are affirmed. | [
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Per Curiam:
Under the decision in the case of Bushey v. Hardin, 74 Kan. 285, 86 Pac. 146, the proceedings for the sale of the land in controversy were invalid from the beginning because a lawful sale could not be consummated during the term of the existing lease. It would open the door to juggling in the disposition of school-lands if proceedings to sell could be commenced in the lifetime of one lease on the theory that a second lease might be made to effectuate them. The proceeding to sell and the sale being invalid, the second lease was valid, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
Defendant in error Laura Soper, for herself and her minor wards, notified the county surveyor of Marion county to survey certain lands therein. The surveyor notified the other landowners who might be affected by the survey, and at the time stated in the notice duly made the survey and made his report. The plaintiff in error in due time filed his notice in writing with the county surveyor of his intention to appeal therefrom, and filed his appeal bond, with approved surety, and the county surveyor certified the appeal to the clerk of the district court and also filed the requisite papers and reports.
The appeal'was docketed in the district court under the title “F. Goffnet v. Laura Soper et al.” Thereupon the defendants in error filed their motion to dismiss the appeal, on the ground that the appeal bond was in sufficient to effect an appeal and to give the court jurisdiction of the action for the reason that the surveyor’s report showed that persons not named in the bond were affected by the survey and that the appeal bond should run to all such as well as to Laura Soper and her wards. On the hearing of the motion the court allowed the same and dismissed the appeal. To reverse this order the case was brought here.
The only question in the case is whether the bond is void. If it was only defective or informal it was subject to correction, the plaintiff in error having made timely application to the court for leave to file an amended bond. The call for the survey was for the purpose only of establishing the northeast comer of a certain section of land and the quarter-section corner on the east side of the section. The petitioners for the survey (defendants in error) owned the north half of the section, and Goffinet (plaintiff in error) owned the south half thereof. It thus appears that Goffinet and the petitioners for the survey are perhaps most directly interested in the establishment of these corners, although the owners of adjoining lands might also be affected. If the survey itself was not an adversary proceeding, it became such upon an appeal’s being taken. The statute implies that notice to the surveyor of the intention to appeal is notice to all parties that were notified of the survey, and no question is raised but that all the parties interested in the survey were notified thereof. In a sense, a notice of the surveyor to the parties interested in the survey gives such jurisdiction over them as to bind them by the results of the survey; and it is a generally recognized rule that when jurisdiction has once been established over parties to a proceeding or in an action no new notice is required of the subsequent steps therein until the matter in controversy is finally determined. Each party in interest, over whom jurisdiction is acquired, must at his peril take notice of each successive step leading to the final determination.
We incline to the opinion that all the parties adverse to Goffinet are protected by the appeal bond which was given as fully as they would have been had each been named therein. However this may be, the bond was at least sufficient to give the court jurisdiction of the case. If the bond was insufficient to protect any party or parties in interest the court had jurisdiction on their application to require the plaintiff in error to make a sufficient bond to protect them. It does not, at least, lie in the mouth of Laura Soper or her wards to say that she and they were not protected by the bond, or to deny the jurisdiction of the court because others had not been properly brought into court, if such were the fact.
The order of the court dismissing the case is reversed and the case is remanded, with instructions to reinstate the same and to proceed in accordance with the views herein expressed. | [
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Per Curiam:
Williams was convicted on one count in the district court of Labette county of the offense of criminal libel, and appeals. The case has been in this court before {The State v. Williams, 74 Kan. 180, 85 Pac. 938), where a general statement of facts will be found.
Numerous complaints are made that improper evidence for the state was admitted and that competent and material evidence on behalf of the appellant was excluded. We have carefully examined all of these assignments and find no material error therein.
Complaint is also made of the ninth instruction given by the court. This instruction follows almost too closely an instruction which was held erroneous in the former decision in this case, but the publication is self-contradictory on the subject referred to in this instruction. In one part it implies that Higginbottom was swindled by a change made in the conditions of his policy, after it was issued, 'of which change he did not know until informed by the adjuster after the loss. In another part of the-circular it is stated that by the terms of the by-laws of the insurance company its directors had a right to make the change, and that Higginbottom’s attention had been called to this fact a year before. Read in connection with the other instructions we think no substantial error was committed. The whole circular and other instructions were before the jury, and in this class of prosecutions the instructions' are advisory only to the jury.
Some evidence was rejected tending to justify the charge of a discrimination in rates of insurance; afterward other evidence fully setting forth the appellant’s claim was admitted. It should all have been admitted. As appears from the evidence of the state, the discrimination was in effect admitted and explained as not based upon a greater or less risk as to the particular properties, but the higher rate was upon town property and the lower upon farm property, a distinction in class which is generally recognized. After the court had changed its ruling the defendant did not again offer the excluded testimony, as he probably would, although not required to do so, if he still regarded it as material. We do not think any prejudice resulted to the appellant from the technical error.
No reversible error seems to have been made and the judgment is affirmed. | [
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Per Curiam:
There is nothing in this case to take it out of the rule authorizing the trial judge who has seen the witnesses and heard their testimony to set aside the verdict and grant a new trial when he is convinced the jury have clearly erred in their interpretation of the evidence. The duty in such cases has been discussed in so many formal opinions that it is not necessary to encumber the reports with another.
The plaintiff contends he produced so much evidence in his favor that this court should say the case was not even doubtful and that the trial judge merely substituted his opinion for that of the jury. Quantity is not always the controlling factor in weighing oral testimony. Many other considerations affect its value. The trial judge acquired his competency to act upon the motion for a new trial by presiding at the trial. The members of this court have no such means of qualifying themselves to pass upon the facts and must decline to interfere.
The trial judge’s reasons for condemning the verdict as against the great weight of the evidence were given independently of his estimate of the legal sufficiency of the plaintiff’s evidence, and are abundant to sustain his action in granting a new trial even if this court were to disagree with him upon the latter question, which, however, has not been considered.
The fact that the case was tried once before is scarcely sufficient to authorize this court to reinstate a verdict which the trial court has condemned as procured by untrustworthy testimony, as altogether unjust, and as unsupported by the evidence when properly sifted.
The trial court has the same power to vacate special findings which are not sustained by sufficient evidence that it has to set aside a verdict which finds the same facts generally. In this case the findings were directly and specifically assailed. True, the attack was made in the motion for a new trial, but it brought the question to the attention of the court and that is the substantial matter. The form is of little consequence.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, commenced by the defendant in error, Mary Fuller, against the plaintiff in error, Joseph C. Wilson, to recover a team of horses, harness and wagon. The answer was, first, a general denial; second, a justification as sheriff, holding the property under an attachment issued in an action in which one Munkers was plaintiff and L. Abel and Elias C. Boudinot were defendants, and alleging that the property belonged to Boudinot; and third, an allegation or plea that there was another action pending in the same coürt, in favor of the same plaintiff' against one- John Seercst for the recovery of the same property, and that Secrest held and justified as the mere bailee and receiptor of the sheriff. There was no reply. The action was tried before the court and a jury; and the verdict of the jury and the judgment of the court were for the defendant in error, plaintiff below.
Several questions were raised in the court below and several questions are attempted to be raised in this court, which cannot well be considered on account of the imperfect condition of the record, or perhaps rather on account of the imperfect manner in which the questions were saved and brought to this court. Objections were made by the defendant below to the introduction of certain evidence, but as the grounds of the objections were not stated, nor any reason ** _ given in the court below why the evidence was not admissible, the' court below was probably not bound to consider the objections. This is certainly the rule, with probably some exceptions. (See the authorities cited in brief of counsel of defendant in error.) But in this court counsel for plaintiff in error seem to have abandoned this p0jn^ for^ although they have assigned it as error in their petition in error, yet they have since made no reference to it, either by oral argument or in their brief, and therefore we shall not consider it, or take any further notice of the same. See Rule 2, rules of this court; Snyder v. Eldridge, 31 Iowa, 129, citing Shaw v. Brown, 13 Iowa, 508, 510. These cases decide that “errors assigned, which are not presented in argument will not be considered.”
Questions are raised in this court upon the instructions given and refused by the court below to the jury. But as the record does not purport to contain all the instructions given or refused we cannot well determine whether the court below erred to the prejudice of the plaintiff -n err01.^ or not. This is especially true with regard to those refused. The defendant below asked seven instructions, five of which were-refused and two were given with certain modifications. Those refused may have been refused because the court in its general charge had already given them to the jury. If so, the court certainly did not err: Topeka v. Tuttle, 5 Kas., 312, 322; Gillett v. Corum, 7 Kas., 156; Kansas Ins. Co. v. Berry, 8 Kas., 159; Abeles v. Cohen, 8 Kas., 180; Lobenstein v. Pritchett, 8 Kas., 213. There is nothing in the record that would preclude such a presumption except that the most of the instructions refused are not good law, and could not be legally given either in this or.in any other case. Nearly all the matters upon which the defendant below asked the court to charge were questions of fact, which came exclusively within the province of the jury to determine, and were not questions of law at all, such as come within the province of the court to x determine and to give to the jury. They were disputed facts, controverted by both the pleadings and the evidénce. The court would have committed manifest error if it had given said instructions.
The defendant below objected to the modifications of those two instructions which the court gave. The record states that one was the “statutory modification.” What «statutory modification” is or was the record does not disclose; and what the parties or the court imagined it to be we are unable to determine. ' But as it was a “statutory modification” we suppose it was correct. The modification to the other instruction was substantially as follows: The defendant below asked the court to charge substantially that if the sale of the two horses was made by Boudinot to the plaintiff with the intent to defraud the government, the sale was void. The court- so charged, but also so modified the instruction as to substantially say that the sale was not void unless the plaintiff below purchased the property with the like intent. . This modification was not erroneous. It the plaintiff was a bona fide purchaser, the sale was valid as to her although Boudinot may have intended to defraud the government. But suppose the plaintiff also intended to defraud the government: would the sale be void for that reason in favor of any person except the government? Could any person not defrauded nor intended to be defrauded take the property away from the plaintiff, and make it his own, simply because the plaintiff intended to defraud the government ? Such has not heretofore been supposed to be the law. The record contains four instructions which the court gave on its own motion. We perceive no error in either of them. With reference to the fourth however.we might perhaps go further, arid say, that if Mrs. Fuller was a bona fide purchaser of the property without notice of any fraudulent intentions on the part of the person from whom she bought it, the sale was valid as to her, although Boudinot may have sold her the property with the intent to defraud his creditors; Diefendorf v. Oliver, 8 Kas., 365; and this is ¡substantially wliat the - court charged in said instruction. What other instructions were given besides those we have already mentioned, the record does not show.
It is claimed that the transfer of the horses from Boudinot to Mrs. Fuller was simply a gift cither to her or to her husband, Perry Fuller. But how it is expected that "we shall now determine that it was only a gjft we cannot well understand. The question is a question of fact. It was submitted to the jury upon some evidence tending to prove that a consideration passed, and that the transfer was not a gift. The jury determined the question (as well as all other questions) against the plaintiff in error. It is presumed that the question was presented to the jury upon proper instructions; for where the record does not purport to contain all the instructions, and where those given by the court to the jury which it does contain are not erroneous, it must always be presumed that the proper instructions were given, and how wc are now to determine against the verdict of the jury, and the judgment of the •court below, when no objection to either was made in any form in the court below, is beyond our comprehension. If the verdict of the jury upon this or any other question was not sustained by sufficient evidence why did not the plaintiff in error move to set aside the verdict, or for a new trial, for that reason? and then, if the motion were overruled, bring the whole of the evidence upon that point, instead of a part of it, to this court? Of course it will be admitted that Boudinot could not give away his property even to an innocent party so as to hinder, delay or defraud his creditors; but that question is not before us.
That the evidence amply sustained the verdict must be presumed, for no motion was made to set aside the verdict or for a new trial. But whether the evidence did sustain the verdict or not we cannot tell, for the ¿[oes 110^ pUrp0rt to contain all the evidence. It is true, that the record states that the evidence it contains “is all the evidence given on such trial which is material to the questions sought to be raised in this case.” But it could not have been supposed that any question would be raised in the supreme court with regard to the sufficiency of the evidence to sustain the verdict, for no such question was raised in the district court. The record itself shows in another place that some of the evidence Ayas left out of the record. With such a record, although it might seem that some material fact was not sufficiently proved, still it Avould have to be presumed that, it Avas sufficiently proved. We think hoAvever, from the record as it is, that there Avas some evidence to prove every material fact in favor of the plaintiff beloAV, and sufficient evidence to sustain the verdict.
We find in the brief of plaintiff in error the folloAving; “The defense stands admitted for lack of a reply, and the verdict against the admissions is error.” No . _ _ . _ . _ . n . question oi this kind AAras raised m any manner in the court beloAV, and being raised for the first time in this court it aauII of course be looked upon Avith great disfavor. The rule is, that the supreme court Avill hear and determine such questions only as have been passed upon by the court beloAV: Sleeper v. Bullen, 6 Kas., 300, 309, 310. See also in this connection the following cases: Green v. Dunn, 5 Kas., 254, 260, and cases there cited; Greer v. Adams, 6 Kas., 203; Moore v. Wade, 8 Kas., 380; Cooley v. Wilkins, 6 Barb., 558, and cases there cited, in brief of counsel for defendant in error. The rule above stated has its exceptions, or apparent exceptions, but this case does not as Ave think present one of the exceptions. A trial Avas had in the court beloAV in all respects as though a reply had been filed, as though the ansAver Avas contro'verted, and as though the issues had all been properly made up. The attention of the court AAas never called to the fact that no reply had been filed. No one seems to have even suspected that the issues were not all properly made up, or that the plaintiff below was in default for want of a reply, until the case reached this court. And now we think it is too late for the plaintiff in error to complain. We cite the following authorities in support of this view, some giving one reason and some another: 1 Chitty Pl., 621; Comyn Dig., Pleader, G., 22; Woods & Hobart v. Morgan, Morris, Iowa, 179; Sigler v. Woods, 1 Iowa, 177; 1 Ill., (Breese,) 35; 17 Ill., 166; 21 Ill., 559; 22 Ill., 140. See also, Shirts v. Irons, 28 Ind., 458, and cases there cited; Irvinson v. Van Riper, 34 Ind., 148. These last cases decide that parties waive reply by going to trial without it.
But was a reply necessary? We think not. We suppose it will be admitted that a reply is not necessary where the answer is only a general denial, or where the answer in effect amounts only to a general denial, or where the answer states no defense to the action; for such .g cjeaiqy qjie iaw> ]Sf0Wj as the first defense stated in the answer was only a general denial, and as the third supposed defense stated no defense to the plaintiff’s action, we suppose it will be admitted that no reply was necessary as to these. The only question then to be considered is, whether a reply was necessary as to the second defense. The rules of the common law have scarcely any application in this state to an action of replevin. The action is almost exclusively statutory, and differs widely from the old common-law action. The plea non cepit, or, non cepit modo et forma, etc., or, cepit in alio loco, would under our code tender a wholly irrelevant and immaterial issue, and would constitute no defense to the plaintiff’s action. The action resembles more the old common-law action of detinue than it does that of replevin, and the plea non detinet would now be a good defense to our action of replevin. In our statutory action of replevin the gist of the action is the wrongful detention of the property in controversy on the part of the defendani ag agai'i'bst the plaintiffAnd the plaintiff in order to maintain the action must plead and prove, if the facts be controverted, first, that he owns or has a special ownership or interest in the property; second, that he is entitled to the immediate possession of the same; and third, that the property is wrongfully detained by the defendant. The ■defendant cannot wrongfully detain property as against the plaintiff unless all these facts exist; and without their existence no action of replevin can be maintained. The plaintiff must necessarily set forth all these facts in his petition, and a general denial on the part of the defendant puts them all in issue, and throws the burden of proving them upon the plaintiff. In this respect the general denial in our action of replevin is very similar to the plea of non detinet in an action of ■detinue at common law. “ In detinue the general issue was ■non detinet, which put in isstre the facts of the plaintiff’s property or possession, and the defendant’s withholding the «chattels.”’ (1 Chitty’s Pl., 525, edition of 1833, and page 488 of later editions; Coke upon Littleton, 283a/ Phillips v. Robinson, 4 Bingham, 111, 112; 13 Eng. Com. Law, 424, 425.) The common law was however changed in England in 1832 by a rule of the court (one of the rules which Chitty calls the “recent rules,”) adopted under the English statutes, which rule took effect in 1834. (1 Chitty Pl., Appendix, 743.) "We might here notice another resemblance between our action of replevin and the common-law ■action of detinue. In detinue “The judgment was in the -alternative, that the plaintiff do recover the goods, or the value thereof if he cannot have the goods themselves, and his damages for the detention, and his full costs of suit.” 1 Chitty Pl., 125; Comyn Dig., Pleader, 2,12; Bacon’s Abr., Detinue; Jacob’s Law Die., Detinue. In our action of replevin the judgment is in the alternative. This was not so in a ■ common-law action of replevin. With all these differences, and more that we might mention, we should be careful not to be misled by common-law authorities concerning the action of replevin. As to what issues a general denial in replevin tenders, and as to what may be proved under it, etc., we would refer to the following authorities: Oaks v. Wyatt, 10 Ohio, 344; Ferrill v. Humphrey, 12 Ohio, 112; Loomis v. Foster, 1 Mich., 165; Snook v. Davis, 6 Mich., 156; Craig v. Grant, 6 Mich., 447; Walpole v. Smith, 4 Blackf., 304; Jansen v. Effey, 10 Iowa, 227, 231; Ford v. Ford, 3 Wis., 399. These decisions were rendered in states where the action of replevin is principally statutory, and we think they sustain our views on this question. Whether the defendant can have a judgment for affirmative relief unless he prays for it in his .answer, we do not now choose to decide; (see Gould v. Scannell, 13 Cal., 430;) and whether, if he does pray for such relief in his answer, he can then show that he did not detain or have possession of the property at all, we express no opinion. All that we now desire to say is, that a defendant in replevin may append a prayer for affirmative relief to an answer which contains only a general denial, as well as to any other answer; and if he does so, he may then have upon a verdict in his favor a judgment not only for costs but also a judgment for the proper affirmative relief. .
The second defense set forth in defendant’s answer was in effect only a general denial. The defendant had no right to prove a single fact under it that he could not have proved under his general denial. Under his general denial lie could show that the plaintiff was not owner 0f ¿he property, or that he had no interest therein; and this he could do by showing that Boudinot, or himself, or some other person, was the legal owner of the entire interest in the property. Under his general denial he could show that the plaintiff was not entitled to the immediate possession of the property; and this he could do by showing that himself, or some other person, was entitled to the exclusive possession thereof. Under his general denial he could show that he did not wrongfully detain the property; and this he could do by showing that he rightfully detained the same, or that he did not detain it at all, but that some one else detained it. Said second defense therefore simply denies that the plaintiff was the owner of the property, or that he had any interest therein, by alleging that the defendant and Boudinot had the entire interest therein, Bondinot being the general owner, and the defendant having a special ownership or interest therein. Jt denies that the plaintiff was entitled to the immediate possession of the property, because it alleges that the defendant was entitled to the exclusive possession thereof. It denies that the defendant wrongfully detained the property, because it alleges that he rightfully detained it. "We suppose it will not be claimed that a plea which amounts only to a general denial needs a reply; but for authorities see brief of counsel for defendant in error; and for this exact case we would refer to Craig v. Davis, 6 Mich., 447.
It is also claimed that the court below erred in rendering a judgment absolutely for the value of the property, instead of rendering the judgment in the alternative, for the property itself, or for the value thereof in case a delivery of the property could not be had. This claim is correct. The court did so err. The judgment should have been rendered as the plaintiff in error claims. (See authorities cited with reference to the judgment in common-law actions of detinue, supra; also, Gen. Stat., 663, code, §185; Smith v. Phelps, 7 Wis., 211; Rose v. Tolly, 15 Wis., 443; Robinson v. Keith, 25 Iowa, 321, 323; Hall v. Jenness, 6 Kas., 356, 365, and cases, there cited; Hunt v. Robinson, 11 Cal., 277.) But there was no exception to this judgment, ho motion to set it aside, or for a new trial; and the court was not asked by m°tion or otherwise to have the judgment entered ^ ^ie a]ternatiye. If our rules of practice were the same as the rules of practice upon this subject are in Iowa we would not for these reasons examine this question. In the case of Robinson v. Keith, supra, the court say: “There was a general exception to the judgment, but the court was not asked by motion or otherwise to enter the alternative judgment. Under this general exception appellant cannot be heard to allege objections to the form of the judgment.” But our rules of practice upon this subject differ from those of Iowa. We review the form and substance of a final judgment, and correct all substantial errors therein, whether the judgment has been excepted to in any form or not. (Lender v. Caldwell, 4 Kas., 339, 347; Koehler v. Ball, 2 Kas., 160, 169, and cases there cited.) But while the plaintiff in error complains in his brief of this judgment being rendered as absolute, and not in the alternative, yet he has not assigned -the same as error in his petition in error, and therefore we shall take no further notice of the question. We consider no rulings of the court below except such as are ■assigned for error. The judgment of the court below is affirmed.
All the Justices concurring. | [
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The opinion-of the court was delivered by
Brewer, J.:
Defendant in error obtained áñ injunction-in the district court of Franklin county restraining the plaintiffs in error from selling the west half of block 85 in the-city of Ottawa, or any portion of it. The ground of the injunction was, á dedication' of the block to the use of the-public as a court-house square. The undisputed and material facts‘are these: About the 1st of September 1864 the Ottawa. Town'Company obtained title to the site of the present city' of Ottawa, and thereon located, surveyed, platted, and laid out, into blocks, lots, streets, alleys, parks, and other public grounds, said city. Such plat, duly acknowledged, was recorded February 27th 1865. On the plat so acknowledged ¡and recorded block 85 was designated as “court-house square.” Defendant in error owns some lots in block 86, obtained by •conveyances from the town company subsequent to the recording of the plat. These lots face upon this court-house square, and are covered with lasting and valuable improvements,, made by both the present owner and her grantor. The county ■of Franklin in 1867 erected a jail building, with rooms for •county offices, at an expense of $15,000, upon this block 85, which building is still standing and used for county purposes ■Only. Subsequent to the record of the plat a deed was executed by the town company to the plaintiffs in error of ¿several prices of ground in Ottawa. Among them was block ,85, which was described as “ being conveyed as a site for county buildings to be erected by the said parties- hereto of the second part.” There was testimony, though contradicted, that the value of the lots belonging to the defendant in error was enhanced by their facing on this court-house square, and would be reduced by a change of any part of it from public to private use. The legislature of 1871 passed an act authorizing plaintiffs in error to sell the west half of this block ¿and apply the ■proceeds solely.to the erectiom.of a court house. Under this act the plaintiffs in error were proceeding, when ¡stopped by the injunction. There was a general finding for .defendant in error, and no special finding of facts.
Two questions arise: Has the defendant in error such an interest as will enable her to maintain this action? Was ¿such a trust created by the execution and record of the plat, •or the deed to the plaintiffs in error, or both, as will be enforced at the instance of the beneficiaries ? In regard to the first question there is no serious ° A controversy. Indeed, it is no longer an open question in this court, having been settled by the decision in the unreported case of Young v. Moreland, and others, from Deavenworth county. There the owners of the lots facing on the esplanade were held proper parties plaintiff, in an injunction to restrain any appropriation of that public ground to the use of a private mill-yard. The same point is also-decided in Le Clercq v. Trustees of Gallipolis, 7 Ohio, 218; Brown v. Manning, 6 Ohio, 298. Indeed, the principle which underlies these cases is one of wide-spread application. For if a trust be created by the dedication of a piece of ground, as a public park, court-house square, street, alley, or otherwise, the parties most beneficially interested in that trust are the owners'of the property facing thereon. The value of that' property is most materially affected thereby. All dwellers-in a city know how nearness to an open plat of ground, affects values. Business locates itself with reference to a-Court-house, or a market- square. Residences facing on an esplanade, or a park, are considered most eligible. Now, after parties have bought and improved with reference to-such a trust the ordinary and most common rules of equity require that it be enforced at the instance of such parties. We do not mean to be understood as holding that the mere-increase in value of property facing upon public grounds creates a trust in those grounds. A city may buy lots, and build a market house upon, them. Property adjacent thereto may rise greatly in value in. consequence thereof. Still, no .trust is created, and the city may sell the lots and convey good title, even though in so doing she materially lessen the value of the contiguous property. The same is true of any public grounds which any municipality may hold by purchase, gift, or in any other manner than in trust. A mere change in values, by the location of public grounds, creates no trust in them. But we need not-pursue this question any further, as the other is the main question.
II. Was any trust created by the execution and record of the plat, and if so, what was that trust ? The law in force at-the time plainly answers this question. The act concerning plats of cities and towns, ch. 24, Comp. Laws, 119,. (re-enacted as ch. 78, Gen. Stat. 1868, p. 618,) provides that the proprietor shall cause an accurate map •or plat of the proposed city, town, or addition to be prepared, .acknowledged and recorded. Section 6 reads as follows:
“Sec. 6. Such maps and plats of such cities and towns, and additions, made, acknowledged, certified, filed, and recorded with the register, shall be a sufficient conveyance to vest the fee of such parcels of land as are therein expressed, named, or intended for public uses, in the county in which such city or town, or addition, is situate, in trust for the uses therein named, expressed, or intended, and for no other use nr purpose.”
This block was named on the plat “court-house scpiare.” Then by this section such plat vested the fee of the block in Franklin county, in trust for, and to be used as a court-house .square, and for no other use or purpose. It passed the fee, but passed it subject to a trust. Franklin county holds the title, but holds it in trust. It has the control, but must exercise it in subordination to the conditions of the trust. It may do anything with it which does not violate the- terms of the trust. The county commissioners are the general agents of the county, and have the general control and management •of the coirnty property. By the act of 1871 they are specially authorized to sell this property. As agents of the party holding the fee, and specially authorized by the law-making power, they may dispose of that fee, unless such disposition violate the trust under which alone the county holds the property. The county has accepted and occupied the property, It cannot- therefore now deny the conditions of its acceptance and occupation. The deed from the town company to pUintiffis in error recognizes this trust. Its language might not be sufficient to create a trust, not suffic¡en¡ t0 restrict the power -of the county- otherwise to alienate. It may be considered as nothing more than a description. Still, it is in nowise inconsistent with the trust previously created. It does not attempt, ■even if it were possible, to limit it. Counsel claims that it cuts off the reversion of the town company in case the use is abandoned. Hence, the use being abandoned, and the rever•sion of the town company cut off, or conveyed to the county, <fche latter would hold an absolute title discharged of the trust, and could convey good title to a third party. But-an absolute conveyance to a trustee subsequent to the creation of a trust does not discharge the trust nor destroy the rights of the ■cestui que trust. Where the trust is temporary, a subsequent conveyance of the absolute title to the trustee is of value, as giving him the reversion, after the performance of the trust. But where the trust is permanent it is otherwise, and there is value only in the possibility of a failure of the trust. The deed therefore may be laid out of consideration.
It is further claimed that this trust was created through the^operation of the act of the legislature heretofore cited; that, being simply the creature of the legislature, that body can destroy it; that in this respect the act of the legislature of 1871 is simply a retrospective act, and that retrospective acts are not forbidden by our constitution. This trust is not the creature of legislative action. True, it arises under the provisions of an act of the legislature, but it is created by the voluntary deed of the owners of certain lands, proceeding under and by virtue of such act. The law did not create the trust. It was the deed of the owners which did. The law simply prescribed certain rules under which the owners acting created it. Without inquiring how far a legislature is potent to destroy a trust it has created, if is sufficient to say this is not such a case. The question here is, can a legislature destroy a trust in land created by the voluntary act of the owners? The beneficiaries in a trust have an interest therein, just as the grantee in an absolute .conveyance of land has in that land. It is a vested interest, and one that a legislature cannot disturb. A legislature prescribes the effect of conveyances of land. A party proceeding under such act conveys land. The grantee by virtue thereof obtains full title. No subsequent act of the legislature, repealing or modifying the statute, can divest or affect the title of such grantee. Equally is it so with a trust created by conveyance made in conformity to the provisions of a statute. The conveyance once made, the trust created, it can be destroyed only by the consent of the grantor of the trust, and the beneficiary. It is beyond the reach of legislative power. But we are told that,-.the grantors of this trust, by their subsequent conveyance, have conveyed all their remaining interest to the plaintiffs in error; that the public is the beneficiary, and that the legislature represents the public, so that we have here the consent of the grantor, the trustee, and the cestui que trust. This is probably true; and if this consent had been given before any private rights had been built up on this trust, it is difficult to see how this injunc0011]^ pe sustained. But the lots of defendant in error were purchased of the town company after the creation of this trust; lasting and valuable improvements have been placed upon them; their value is enhanced by this open square, and would be diminished by a change, (for a general finding finds all facts proved, concerning which testimony is offered or necessary to sustain the judgment.) Under these circumstances it seems to us this plaintiff has acquired such an interest in this trust as is beyond the power of the legislature to destroy. Authorities are ample on the general question here involved. Says Williams, J., in the opinion of the court in Abbott v. Mills, 3 Vt., 521, “It is customary in laying out towns, particularly when it is contemplated that they will be places of business, to lay out a square or common, and to locate building lots bordering thereon. And these lots acquire an increased value in consequence of their location. If a village is built up, and individuals buy these lots, erect buildings, and commence the establishing of a village, and make it a common center for the business, of the town, the other lands in town rise in value, of which the proprietors have all the advantage. It would then b& the height of injustice, and contrary to every principle of good faith, to permit these proprietors to derive this advantage, and then frustrate the expectations held out, by resuming the lands thus set apart, and at a value greatly enhanced in consequence of their having been thus set out.” So also in the case of Leffler v. City of Burlington, 18 Iowa, 361, the court uses this language: “Having done so, and sold lots to various purchasers with reference to a plat of the town on which said land is dedicated to the public use by a given and prescribed designation, as other public squares, streets, and avenues are, all such purchasers acquire, as appurtenant thereto, a vested right in and to the use of the same, from which they cannot be divested by the owner making the dedication, nor by the town in its corporate capacity, was it disposed so to do.” See also, Com. Council of Indianapolis v. Awas, 7 Ind., 9; Haynes v. Thomas, 7 Ind., 38; State v. Trask, 6 Vt., 355; Rutherford v. Taylor, 38 Mo., 315; Commonwealth v. Alburger, 1 Wharton, 469; Rowan’s Ex’rs v. Town of Portland, 8 B. Mon., 232; Trustees of Augusta v. Perkins, 3 B. Mon., 437; Alvis v. Town of Henderson, 16 B. Mon., 131; Dubuque v. Maloney, 9 Iowa, 451; Cincinnati v. White, 6 Pet., 432; Barclay v. Howell’s Lessees, 6 Pet., 498. And especially as to the want of power in the legislature.to authorize a change from public to private use, see Le Clercq v. Trustees of Gallipolis, 7 Ohio, 218.
Again, 'it is claimed that this sale would only be in furtherance of the trust, as by the terms of the law the proceeds are to be applied solely to the erection of a court house.- A difference in the manner of executing the trust is all that is sought. “ In trust, and for the uses therein named, expressed, or intended, and for no other use or purpose,” is the language of the statute. Under this a. specific execution of the trust is essential. It is not a conveyance of land to aid in the erection of a court house. It is a, conveyance of land to be used as a site for a court house. Such use would cease when occupied by an individual, as site for residence or store. The use contemplated is not temporary, but permanent. Board of Education v. Edson, 18 Ohio St., 221. These are all the questions presented for our consideration in the record, and finding.no error in the judgment of the district court we must affirm it.
All the Justices concurring. | [
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The opinion of the court was delivered'by
Johnston, C. J.:
This is a proceeding to review an order discharging a garnishee.
In An action brought by the plaintiff against Jesse F. Mathes, a judgment' for $778.16 was rendered. At the instance of plaintiff a summons in garnishment was served upon Joseph W. Franzmathes, who filed an affidavit in due' time stating that he was not indebted to the defendant, and upon this affidavit issqe was joined by the plaintiff. At the end of a trial which involved the question whether an automobile purchased by the garnishee and for which he had given his note had been the property of the defendant or of his brother, Frank Mathes, the garnishee was discharged. It was conceded that Jesse F. Mathes negotiated the sale of the car, but whether he sold it as his own or as a representative of his brqther, to whom the note was given, was determined against the contentions of the plaintiff. There was abundant evidence tending to show that Frank Mathes owned the car sold to the garnishee, that his brother Jesse simply acted as his agent in making the sale, and that the note given to Frank Mathes in consideration for the car was in fact his property, and further that the garnishee was not indebted to the defendant. There was contradictory testimony as to the transfer and the good faith of the parties connected with it, but these disputes have been settled in favor of the garnishee.'
Plaintiff contends that there was error in proceeding with the trial upon the affidavit filed by the garnishee. It was a non-liability affidavit, substantially in the form prescribed in section 233 of the civil code. It is contended that there was such uncertainty and confusion of interests that an affidavit such as is provided for in section 234 of the code should have' been filed for the information of the plaintiff and to enable it to intelligently prepare to test the truth of the garnishee’s answer of nonliability. An affidavit under section 234 is not required unless an affidavit has not been made as prescribed in the preceding section, and as the garnishee filed one under that section, there was no occasion for filing one under the succeeding section. It appears that the garnishee had at one time expressed doubt as to who was the owner of the car sold to him, and as to whom payment should be made, and it is argued that he should therefore have set out a detailed statement of the facts relating to the transfer of the car which were known to him. Whatever doubts he may have had appear to have been cleared up before his affidavit was filed, because it contains a positive statement that he was not indebted to the defendant. The situation in the case differed materially from that existing in Lumber Co. v. Bank, 63 Kan. 768, 66 Pac. 1024, or in Railway Co. v. Bowman, 95 Kan. 5, 147 Pac. 813. No one appears to have asked the garnishee for a fuller or more detailed statement of the facts in his answer, and besides, the plaintiff appears *to have been about as well informed as the garnishee in regard to the relations between the defendant and his brother, and also as to their claims regarding the ownership of the car. If the facts brought out at the hearing were in fact a surprise and made further inquiry by. plaintiff necessary to a fair trial of the issues, application might have been made and granted for a continuance in order that preparation might be made to meet the issues. In the recent case of Jewell v. Ellis, ante, p. 604, it was held that a case which had proceeded to an order upon a garnishee to pay money, based upon his answer, might he subsequently set aside by the trial court and the garnishee given an opportunity to correct his answer so as to state the actual facts as to his indebtedness to the defendant.
We are of the opinion that the facts were quite fully developed at the trial, and that no prejudice was suffered by the defendant by reason of the character of the garnishee’s answer.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The defendant was convicted of murder in the second degree, and appeals.
At the hearing on the motion for a new trial there was evidence that during the deliberations of the jury it was stated by one or more jurors that at a former trial the defendant had been convicted of murder in the first degree. Because of this fact the defendant' insists he should have been granted a new trial.
The former trial had been referred to in the course of the proceedings. Witnesses had been cross-examined with reference to testimony given at the former trial, and the fact that there had been a former trial was well known to' the jury. The defendant reliés on the rule that evidential statements of a prejudicial nature made by a juror on his personal knowledge, and which would naturally and probably influence the verdict, furnish ground for the granting of a new trial, unless the state show the accused suffered no prejudice. The case of The State v. Woods, 49 Kan. 237, 30 Pac. 520, is cited. The prosecution was one for statutory rape. The age of the girl was a material and a contested fact. A juror said that three years before she was a small girl wearing short clothes, and that he saw her about three years before, at baptism, in short dresses. The statement was evidential in character, bore directly upon a material issue, and militated quite strongly against the defendant.
The case of The State v. McCormick, 57 Kan. 440, 46 Pac. 777, is cited. The defendant was convicted of obtaining property by false and fraudulent pretenses. At the hearing on the motion for a new trial the court excluded testimony that one of the jurors said in the jury-room the defendant had been convicted at a former trial, and that the defendant had defrauded a witness who testified for the state out of some cattle while in Colorado. In deciding that the evidence should have been admitted, this court did not discriminate between the two statements of the juror, and said the testimony offered was of an important and prejudicial character. That was clearly true with respect to the former fraud committed by the defendant.
The case of The State v. Burton, 65 Kan. 704, 70 Pac. 640, is cited. The defendant was -convicted of the murder of one Hoffman by shooting him. There was some evidence that Hoffman was a violent and desperate man who had threatened the defendant’s life, and the crucial point in the case was whether or not there was a necessity,, or apparent necessity, for killing him. Two of the jurors, from their personal knowledge, stated that Hoffman was merely a bluffer, and would not hurt anybody. Another juror.stated that everybody in the county believed the defendant guilty of murder in the first degree, and another juror stated that a former jury had found the defendant guilty of murder in the first degree. In this case an evidential fact was stated which bore directly upon a vital subject —whether or not the deceased was a dangerous man.
No case is cited in which a statement of the nature of a former verdict, standing alone, has vitiated a verdict.
The rule was stated in the Burton case in the following form:
“When a juror in a capital case'makes a statement to his fellow members about material matters outside the evidence, and of a prejudicial character, based on his personal knowledge, it will’ vitiate, the verdict, unless a clear showing be made that the defendant suffered no prejudice from the misconduct.” (syl. ¶ 1.)
In the opinion it was said:
“Who can say that they were not affected by the information wrongfully introduced in the jury-room that another jury had at another time found the defendant guilty of the highest degree of the crime with which he was charged?” (p. 708.)
Because of this remark in the opinion, and because of the different meanings which might'attach to the word “prejudicial” in the syllabus, the decison in the Burton case might be misapplied. “Prejudicial” may mean merely derogatory to the defendant or his defense, or it may mean actually, or naturally and probably bringing about a wrong result, under all the circumstances of the case. The remark in the opinion might lead to' the inference that if a statement about a material matter outside the evidence and adverse to the defendant should be made, prejudice in the result would be presumed until the contrary should be made to appear. On this subject the court has made itself clear in a long line of decisions applying section 293 of the criminal code:
“On an appeal the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.” (Gen. Stat. 1915, § 8215.)
Even the violation of an 'express statutory inhibition will not work a reversal unless the court is able to say, the whole record considéred, that a substantial right was prejudicially affected. (The State v. Peterson, 102 Kan. 900, 171 Pac. 1153, and cases cited in the opinion.)
In a case like the Woods case, the proof that the girl was under age of consent might be so convincing that the- court would have no hesitation in saying the statement made by the juror had no influence on the verdict. In a case like the McCormick case, it might be apparent th.at the statement of the juror merely augmented a superfluity of proof of guilt. In the Burton case, the tension was such that the evidential statement of two jurors concerning the inoffensive character of the man killed, supplemented by the other statements injected into the deliberations, may have overcome a lingering, reasonable doubt of guilt. But in another case, the court might be able to say with confidence that the jurors who spoke were merely, in a way, confirming a conclusion from which the evidence in the case left no reasonable avenue of escape.
A statement of the nature of the verdict at a former trial is pot evidential. The fact stated adds nothing to the evidence respecting any contested issue. It may not even be interesting. It may be a matter of common knowledge. It does not naturally or necessarily tend to corrupt the deliberations of a jury, presumably regardful of their oaths and the instructions given by the "court, and in any given instance it is the function of the trial court to determine whether or not it probably subverted their integrity and vitiated their yerdict. In this instance this court agrees with the trial court that it is highly improbable the extraneous remarks influenced the jury to return an unwarranted verdict.
The defendant complains that at the hearing on the motion for a new trial the court declined to receive evidence relating to misconduct of the jury in the jury-room. The court did not decline to hear evidence of any material fact or facts occurring during the deliberations of the jury. It did properly decline to hear evidence as to the influence and effect of facts occurring during the deliberations of the jury on their minds in arriving at their verdict.
The finding of the trial court on evidence produced at the hearing on the motion for a new trial, relating to alleged misconduct of a juror outside the jury-room, is approved.
The defendant says the court admitted, over objection, proof of offenses committed by the defendant not related to the charge contained in the information, and permitted the defendant’s character to be wrongfully assailed. What happened was this: The killing occurred immediately after a meeting of a Rebecca lodge in the city of Silverdale, which the defendant and his victim attended. The weapon'used was a .45-caliber revolver, which the defendant took with him to the meeting. He took the witness stand in his own defense, and in his examination in chief improved the opportunity to tell of his habit and practice of Parrying a revolver. He said he carried a gun when he was at Frederick, Okla., in the cattle country, and had carried one since he had been in Silverdale, where he had lived since January, 1911. The state then cross-examined him at length on the subject, extending the examination to other states, and to details which tested his veracity and credibility, and which tended to shake his credit as a witness by'reflections on his character. The cross-examination, however, was confined to the subject of carrying and using deadly weapons. The cross-examination was proper. (The State v. Killion, 95 Kan. 371, 148 Pac. 643, and cases cited.)
Assignments of error relating to the admission of evidence; instructions given the jury, and the submission to the jury of the crime of murder in the second degree, have been considered, and are held to be without substantial merit.
Th judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
A passenger train of the defendants struck and killed the two-year-old son of plaintiffs, and they brought this action to recover damages for his death. From a judgment in their favor, the defendants appeal.
The place where the accident occurred is in a neighborhood of several villages or country settlements where the track of the railroad runs north and south. The child wandered from his home and upon the railroad’s private right of way, which was near by. He was struck when he was at a point about 150 feet south of a much used public highway. The track, for a distance of about a half mile south of this crossing, is practically straight. The negligence charged in the petition was that those in charge of the locomotive failed to exercise reasonable care to discover the perilous position of the child and were operating the train toward the crossing mentioned at a reckless rate of speed, to wit, 45 miles an hour.
Plaintiffs introduced considerable evidence showing the population of the neighborhood and to the effect that a great number of people made daily use of the crossing mentioned, including children returning from school upon that road, especially about four-thirty o’clock. A witness testified that about that time of day he was crossing the track on the highway and saw the train approaching from the south at a rate of about 45 miles an hour; that- he also saw the child upon the track about 90 yards south of the crossing; and that he waved at the train and tried to' flag it, but that he did not notice any slackening of its speed up to the time it struck the child. There was also testimony that the track was clear and the view un obstructed between the approaching train and the crossing, and that at a point about a quarter of a mile south of the crossing the fireman was seen talking and laughing with another person in the cab of the locomotive. At the close of plaintiffs’ evidence defendants filed a demurrer thereto, which was overruled.
It appeared from the defendants’ evidence that as the train passed the whistling post, about a quarter of a mile south of the crossing, the usual two long and two short blasts of the whistle were sounded and immediately thereafter the engineer and fireman, both of whom were at their proper places of duty, each at about the same instant, discovered for the first time the child’s presence on the track ahead of them at a distance estimated by them to be about 200 feet. The emergency brake was set immediately and the steam was shut off, but it was then impossible to stop the train before striking the child. It appeared that the child was wearing a light-colored apron which was about the color of the gravel of the roadbed.
A peremptory instruction was asked by defendants and refused, by the court, and the case was submitted to the jury, who returned special findings to the effect that the men in charge of the engine failed to keep a careful lookout which would have enabled them to see the child in time to stop before striking him, and that they were running at a reckless rate of speed at a point where it was to be expected that children would be on the track — at the place where the child was struck. They further found that the engineer applied the brakes and shut off the steam as soon as the child was discovered, which was then about 120 feet from the engine, but it was impossible to stop the train at the rate it was running in time to avoid the accident; and that the place where the accident occurred was about 150 feet south of the highway crossing.
The question of the defendants’ negligence was raised by objections to the petition, to the submission of the case to the jury, and to the rendition of judgment on the special findings; and the contention on this appeal is that no duty owed by them to the child was violated, and that no liability against them was either alleged or established. What was the duty of the defendants towards the child ? He was on the track and right of way, the exclusive occupancy of which was in the defendants. There was no crossing at the place, nor any path or passageway over the-right of way which persons used by license or permission. He was not in a place frequented by children or other persons, and hence the employees of the defendants had no reason to anticipate his presence at the place he was struck. Under the circumstances the child was a trespasser, and it is well settled that the only duty owed by a railroad company to a trespasser on its tracks is not wantonly to injure him. The rule was stated as follows in A. T. & S. F. Rld. Co. v. Todd, 54 Kan. 551, 38 Pac. 804, a case involving the death of a boy who had intruded upon the private grounds and track of a railroad company:
“He was in a place where the company had the exclusive use of the tracks, and where; there was no reason to anticipate that intruders or trespassers would be concealed. Under such circumstances, there was no duty on the part of the company to foresee his wrongful presence, nor did any duty arise in his favor until his presence was discovered. As a general rule, before the company can be made liable for injury to trespassers, it must appear that the proximate cause of the injury was the failure of the company to use reasonable care to avoid injury to them, upon becoming aware of the peril to which they were exposed. . . . The only duty which the company owed to him was not to recklessly or wantonly run over him after they discovered him in a place of danger.” (p. 558.)
Other cases supporting this view are C. B. U. P. Rld. Co. v. Henigh, Adm’r, 23 Kan. 347; Mason v. Mo. Pac. Rly. Co., 27 Kan. 83; A. T. & S. F. Rld. Co. v. Plaskett, 47 Kan. 107, 26 Pac. 401; Railway Co. v. Prewitt, 59 Kan. 734, 54 Pac. 1067; Burgess v. Railway Co., 83 Kan. 497, 112 Pac. 103; Hayden v. Railway Co., 87 Kan. 438, 124 Pac. 165.
Plaintiffs contend that the Prewitt case tends to uphold a recovery. There a child two and a half years old wandered from its home and lay down on the railroad track, and was probably asleep when ,it was killed by a train. It was at. a place not frequented by children or other persons, and, while those in charge of the train saw an object on the track a moment before they realized it was a child, the discovery was not made in "time to avoid running over it. Everything the trainmen could do to save the child after its peril was seen was -done by them, and this was held to be the extent of their duty towards the child. Special attention is called tq the statement in the opinion that “had the object perceived by the trainmen been at a highway crossing, where the presence of small children might be suspected, or had it, been at a place frequented by them for play, near a schoolhouse, or in or on the outskirts of a village, the case might be different.” (p. 739.) This language was used by way of comparison and illustration in a case unlike the one then under consideration, and was not intended as and is .not a modification of the rule relating to the duty of a railroad company to a trespasser on its track. A lookout, of course, must be kept for persons upon public crossings, and likewise for the safety of persons passing on or over certain parts of the track by license or permission. The mention of the places frequented by children at play near a schoolhouse, or in a village, only refers to places on a railroad right of way where children frequently resort or are allowed to go, so that those in charge of the trains have reason to anticipate their presence just as they would at a crossing, and under those circumstances a different rule would apply. The facts in the present case do not bring it within that rulé. There was a schoolhouse in the neighborhood, but it was not close to the track, nor was it shown that the children attending it ever were on the track or right of way at or near the place where the child was struck. The trainmen had no reason to expect children or adults upon the track at this place and, therefore, were under no duty to keep a lookout for trespassers there. The trainmen had no more reason to anticipate the presence of children on the track than of adults, and the company owed no higher duty to the child until its danger was discovered than if he had been an adult. A different rule applies to a child after his discovery by the trainmen, as they may assume that an adult will leave the track when warning of approach is given, while account must be taken of the immaturity of a child, and of its inability to comprehend the danger, and, hence, greater care for it must be exercised. The obligation of the trainmen to act for the safety of a child does not arise until they discover its peril, and then it becomes their duty to do all they reasonably can to avoid injuring him. Many cases- relating to the duty of railroad companies towards infaint trespassers are collected in a case note in 32 L. R. A., n. s'., 559. ^
One ground o-f negligence found by the jury was the high speed at which the train was running, 45 miles an hour; but, in view of the conceded facts, the rate of speed which the j ury characterized as dangerous was not a material element in the case. It is claimed that because so many people lived in the vicinity, which was a mining country and where there were a good many mining camps and hamlets near the railroad, the rate of speed was excessive. It appears that most of the people lived some distance away from the railroad, and there was no law nor regulation limiting the speed of trains in that country. It has been held that in places where no government regulations are prescribed “there is-no limit upon the speed at which trains may be run, except that of a careful regard for the safety of trains and passengers.” (A. T. & S. F. Rld. Co. v. Hague, 54 Kan. 284, 294, 38 Pac. 257; Land v. Railroad Co., 95 Kan. 441, 148 Pac. 612.) The rate of speed through such a country could hardly be regarded as excessive towards any one, but if it had been so as to persons rightfully on the track, it could not be a violation of duty to a trespasser whose presence was not within reasonable anticipation. Neither was the failure of the trainmen to keep a lookout along the track all of the time, or a failure to have discovered the child at the earliest possible moment, a violation of their duty to him. (Nolan v. N. York, N. Haven & Hartford R. R. Co., 53 Conn. 461; Note, 32 L. R. A., n s., 564.) The men in charge of the train are not required to guard against a danger which is not to be anticipated, and under the , circumstances of this case they owed the injured child no duty until they saw him on the track and in a place of danger. All the facts show, and the finding of the jury, is, that the engineer shut off the steam, applied the emergency brakes, and did all in his power to save the little one as soon as he was discovered on the track. Liability of the defendants for such an injury can only result from a violation of their duty to the injured child, and since it has been established that ho duty to it was violated no recovery can be had against the defendants for the lamentable accident.
The judgment of the district court is therefore reversed, and the cause is remanded with -directions to enter judgment in favor of the defendants. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs are minors, whose interest in'a tract of land inherited from their father was sold and the proceeds reinvested by their mother and guardian on authority of the probate' court. The action was based upon certain irregularities in the proceedings in the probate court authorizing the sale of the minors’ interest, and upon the ground that the sale sanctioned by the probate court was void because the vendee was -the husband of their mother and guardian. Ejectment, partition, rents, and equitable relief were prayed for by plaintiffs against their mother and the parties now claiming the land.
Plaintiffs’ motion for judgment on the pleadings was overruled, and this ruling is the error complained of. Defendants now move to dismiss on the ground that this court has no jurisdiction of this appeal. '
The judgment was rendered on May 16, 1916. The notice of appeal was served on defendants on April 18, 1917, filed with the clerk of the district court on April 24, 1917, and filed in this court on June 14, 1917, all of which was too late. (Civ. Code, § 572.) To resist the motion to dismiss, plaintiffs show that they had filed a motion for a new trial on May 17, 1916, • and that sucli motion was pending in the trial court, and not overruled until February, 1917.
A motion for judgment on the pleadings invokes the trial court’s judgment on questions of law as applied to the pleaded and conceded facts, and a judgment thereon is equivalent to a ruling on a demurrer. It is a ruling on the merits of the action or defense as presented by the pleadings (Civ. Code, § 565), and its propriety or correctness is purely a question of law. No motion for a new trial is necessary before taking an appeal from a trial court’s ruling on a mere question of law; and the time to appeal therefrom cannot be enlarged and extended by filing in the trial court an unnecessary motion for a new trial. (Bowen v. Wilson, 93 Kan. 351, 144 Pac. 251.) Since the legislature has limited the supreme court’s appellate jurisdiction to appeals taken within six months after the rendition of a judgment in the trial court, the defendants’ motion to dismiss must be sustained.
Dismissed. | [
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The opinion of the court was delivered by
Marshall, J.:
Defendants George W. Simmons and Cora Simmons appeal from a judgment obtained against them foreclosing a mechanic’s lien. . George W. Simmons contracted with Dennis D. Doty for the construction of a pumping plant on certain real property owned by defendants Simmons in Finney County. Doty was to receive his compensation on the completion of the plant and on its successful operation. Doty testified that he purchased from the plaintiff all the material listed in the itemized account attached to the petition; that the materia^ was used in the installation of the pumping plant; and that he ordered the material for that plant.
The amended answer of George W. Simmons and of his wife, Cora Simmons, contained a general denial, and alleged that Doty never performed his contract and never completed the plant, and that they never became indebted to Doty on the contract. The amended answer also alleged that they were damaged in the sum of $2,500 by Doty’s failure to perform his contract.
On April 29, 1916, a demurrer was sustained to all of the amended answer, except the general denial. The cause was tried on September 18, 1916, and judgment was then rendered in favor of the plaintiff for $439.16 and for foreclosure of the mechanic’s lien. Notice of appeal was served on May 4, 1917 —almost a year after the ruling on the demurrer. George W. Simmons and Cora Simmons argue that the court erred in sustaining the demurrer to their amended answer. The plaintiff contends that the error, if any there was, ,in sustaining the demurrer cannot be considered on this appeal, for the reason that a ruling on a demurrer cannot be reviewed if an appeal from that ruling is not taken within six months thereafter. The appeal was not taken in time, and the plaintiff’s contention must be sustained. (Slimmer v. Rice, 99 Kan. 99,160 Pac. 984, and other decisions there cited; Civ. Code, § 572.)
Complaint is made of the admission of evidence. That evidence was as follows:
“Q. You had ordered material from this same concern with respect and for use in a good many other jobs too, had you? A. Yes, sir.
.“Q. And speaking with respect to those other jobs, state if the company kept its accounts against you separately for each separate job? A. Yes, sir. Each job was kept separate.
“Q. And the goods ordered for one job were never mixed or mingled with the order for other jobs? A., No, sir.”
That evidence was admissible for the purpose of showing that the material was purchased for, and was used in, the construction of the pumping plant on the land of defendants Simmons.
A demurrer to the plaintiff’s evidence was overruled. It is contended that the evidence failed to prove that the material was sold to Doty with the intention and understanding that it should be used in the construction of the pumping plant on the land of his codefendants Simmons. It is also contended that the evidence failed to show that the plaintiff had any notice of the contract between Doty and George W. Simmons. From these contentions, it is argued that it necessarily follows that the plaintiff sold the material to Doty on his own credit.
In addition to the evidence already set out, Doty testified that the material was ordered for this particular job, and that he thought the order for the material stated that it was to be used in the construction of the plant. As against a demurrer thereto, the evidence was sufficient to prove that the material was sold with the intention and understanding on the part of the plaintiff that it would be used in the construction of the pumping plant. It was not necessary to prove that the plaintiff had either notice or knowledge of the contract between Doty and George W. Simmons.
A jury was called, and it answered four special questions. The court set aside the answers to the first and the fourth questions. It is argued that this was error. The answer to this argument is, that in this action the findings of the jury were only advisory, and the court was not compelled to accept the findings. The court could make findings of its own.. The court found “that the allegations of the plaintiff’s petition are true and that there is due the plaintiff upon the mechanic’s lien statement sued on herein the sum of $439.16,” and found that the amount named, with interest thereon, was a lien on. the real property described in the petition.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiff brought this action to recover possession of one hundred and twenty acres of land and to quiet his title thereto.
Sometime prior to this proceeding the plaintiff had commenced an action against the defendant, G. W. Clark, for a sum of money. At that time Clark owned the land in controversy. While that action was pending, Clark conveyed the land to his daughter for the nominal sum of $10, and she in turn conveyed it to her mother, Mary L. Clark, for $25. Plaintiff recovered judgment in his action for money against Clark, and caused an execution to be issued and levied against this land as |the property of the defendant, and it was sold by the sheriff to plaintiff, and in due time the sheriff executed a deed conveying the property to plaintiff. Plaintiff then brought this action against Clark and his wife and other members of the Clark family alleging his ownership, and alleging that the conveyances from Clark to his daughter and from the daughter to Clark’s wife, Mary L. Clark, were made for the purpose of hindering, delaying and defrauding the plaintiff as a creditor of Clark.
Mary L. Clark’s answer, among other matters, alleged that she and her husband were married in 1884; that she had received certain moneys and property from her parents, and that such property had been sold and the proceeds and other moneys of hers had been invested and reinvested in lands in Iowa, which were eventually sold in 1902 for $7,650; that she had advanced to her husband $700 at one time and $3,000 at another time; that when her husband became involved in litigation with plaintiff she feared that the moneys she had given her husband might be lost, and had required her husband, for the purpose of protecting her, to convey the land to her; and that the transfers of the land to her daughter and from the daughter to her has been made in good faith and for her protection.
The defendant, Mary L. Clark, prevailed, and the plaintiff appeals, and in his brief he argues strongly against the credibility of the evidence adduced by defendant, and he points out the seeming weakness and inconsistencies in defendant’s evidence and in that of her husband.
Turning, as-this lawsuit did in the trial court, almost wholly on the determination of the facts in issue, it naturally pro- voiced a spirited contest and furnished an unusual opportunity for counsel skilled in the art of cross-examination. And this opportunity was used with such cleverness and penetration that a reviewing court with nothing but the printed record before it might well doubt the correctness of the jury’s verdict. But the principle is thoroughly settled that the determination of the issuable facts is no concern of an appellate court, provided there is sufficient evidence upon which the verdict and judgment can be based. (Bruington v. Wagoner, 100 Kan. 10, id. 100 Kan. 439, 164 Pac. 1057; Wideman v. Faivre. 100 Kan. 102, 163 Pac. 619.)
Whether Mary L. Clark was a bona fide creditor'of her husband for a preexisting indebtedness and was merely less indulgent and more diligent in looking out for her own interests as a creditor of her husband than other creditors, or whether she was merely acting a part to assist her husband in hindering, delaying and defrauding the plaintiff — these were jury questions which, upon competent and sufficient, though doubtful’testimony, have been resolved in defendant’s favor by the general verdict, and there is no essential conflict between the general verdict and the special findings of the jury. Counsel for plaintiff say that defendant’s story about having advanced moneys to her husband years ago, and of which she kept no accurate account, “looks exceedingly fishy.” It may do so, arid yet we all know — some of us within our own experience — that wives frequently do that very thing, and it was for the jury and the trial court, not for appellate judges, to determine whether her claims were genuine or spurious, arid notwithstanding the poor showing defendant made on cross-examination (Matassarin v. Street Railway Co., 100 Kan. 119, 120, 163 Pac. 796), she presented sufficient affirmative evidence to support her contention, and the controversy over the facts is closed. (Mitchell v. Simpson, 62 Kan. 343, 348, 349, 63 Pac. 440.)
• Fault is found with the instructions given and with those refused by the trial court, but those given appear to have correctly defined the law applicable to the case and to have omitted nothing of any importance urged by plaintiff. The j ury were clearly and simply advised that if the conveyance of the property by Clark to his wife, or from Clark to his daughter and from the latter to Clark’s wife, was made through any understanding or agreement with the intention of Clark and Ms wife to hinder or delay or defraud the plaintiff, their verdict should be for the plaintiff. This feature of the instructions was elaborated, and fully covered plaintiff’s theory of the case. Of course, the court very properly gave instructions covering defendant’s theory of the case, to the effect that a debtor in failing circumstances may prefer one bona fide creditor to the exclusion of others, and regardless of the debtor’s motives, and even though the creditor may know that the debtor intends thereby to defraud other creditors. One such instruction continued—
“And you are instructed that the fact that such creditor is the wife of the debtor, does not change the rule, for if a wife is a bona fide creditor of her husband, she has a right to expect and to receive security or payment from him, or out of his estate, the same as any other creditor, and he has a right to prefer her to other.creditors by transferring real estate or other property at a fair price in payment of her claim against him. so long as she acts in good faith. And while the fact of the relationship existing between the parties may be taken into consideration by you, yet the conveyance cannot be overturned on account of the mere fact that it is between husband and wife, even though he is in failing circumstances.”
After the jury had deliberated for many hours, the court gave an additional instruction—
“That is to say, that if G. W. Clark intended by this transaction or the effect of it was to hinder, delay or defraud his creditors, then the transfer would be bad as to him, and if Mary L. Clark’s participation in the transfer was with knowledge of such fact, or with knowledge of such facts as would put a reasonably prudent person upon inquiry, and still with such knowledge participated in the transaction for the purpose of assisting the defendant, G. W. Clark, in his purpose, then the transfer should be set aside as to her as well; but the mere fact that she knew the effect of the transfer would be to hinder, delay or defraud creditors would not make the transfer fraudulent as to her if she was acting in good faith for the purpose of paying or partially paying a bona fide indebtedness to her. And if she was acting in good faith for that purpose, then the transaction should not be set aside, even though you may find she knew what the consequences would be to the other creditors.”
These criticized instructions are established law. The law has always favored the diligent creditor. So long as he acts in good faith to recover his due on a preexisting and unsatisfied indebtedness, a creditor is entitled to accept what is coming to him, and need not concern himself as to the effect upon other creditors, nor with the motives of the debtor in preferring him to others. The only limitations upon this principle are governed by the doctrine of lis pendens and the provisions of the bankrupt act, neither of which are here relevant.
In McDonald v. Gaunt, 30 Kan. 693, 695, 2 Pac. 871, Chief Justice Horton, speaking for the court, said:
“Again, one creditor has á right to demand and receive the property of his debtor in payment, though he may know that he will thereby withdraw the means of satisfying other creditors, and although the immediate inducement for receiving such payment be the fear or the knowledge that if he do not thus act, other creditors will intervene, and by the prosecution of their legal remedies or otherwise, deprive him of the means of satisfaction. The utmost good faith required of the creditor in seeking or receiving this advantage is, that he shall act with the real view to the security of his own actual debt; that he should allow adequate prices for the property, and that he shall not hold it for the debtor’s benefit. (Ford v. Williams, 3 B. Mon. 550.) We have no inclination to overturn this well-settled doctrine.”
In Kennedy v. Powell, 34 Kan. 22, 7 Pac. 606, a case whose principal features were like the one at bar, it was said:
“A wife who is a bona fide creditor of the husband is entitled to security or payment out of her husband’s estate, the same as any other creditor, and although the husband is in failing circumstances, he may in good faith prefer her to the exclusion of other creditors by transferring real estate or other property to her at a fair price in payment of her debt against him.” (syl. ¶ 1.)
In Hasie v. Connor, 53 Kan. 713, 37 Pac. 128, the syllabus, in part, reads:
“A creditor who in good faith obtains from an insolvent debtor property or security in payment of an honest debt, where the debtor may have acted with the design of delaying and defrauding other creditors, will not lose his preferences by reason of notice of the wrongful design of the debtor, providing his only purpose is to fairly obtain satisfaction or security for his own debt, and that he does not participate in-the wrongful intent of the debtor, (syl. ¶ 2.)
“A creditor who in absolute good faith takes the property of his debtor, at a fair valuation in payment of an honest debt, although the payment of his debt may absorb the entire property of the debtor, commits no fraud against anyone.” (syl. ¶ 3.)
In Gilmore v. Swisher, 59 Kan. 172, 177, 52 Pac. 426, it was said:
“Nor would knowledge on the part of the vendee of a purpose of the mortgagors to defraud their creditors necessarily defeat or tend to defeat his mortgage. If the transaction between him and them was honest, if they really owed him the debt, and gave him security for that only, their purposes in regard to the payment of their other debts could not affect his security. Nor was the plaintiff bound to inquire into the motives and purposes of the mortgagors. Although the relationship of the plaintiff to the mortgagors was a circumstance which it was proper for the jury to consider in determining the good faith or fraud connected with the mortgage, it was error to charge as a matter of law that such relationship afforded grounds for suspicion and called for satisfactory proof of good faith.1’
In Bank v. Schuette, 100 Kan. 45, 46, 163 Pac. 1073, it was said:
“Suppose it had been her [defendant’s] intention to use the entire proceeds of the sale of her property in payment of her debt to the bank, and that other creditors had attempted to secure a lien upon the property by attachment on the ground that it was fraudulent for her to dispose of her property with the intent to pay no part of her indebtedness to them. The bank would hardly dispute her right in such case to prefer it to the exclusion of other creditors. An insolvent debtor may in good faith prefer some of his creditors to the exclusion of others. (Tootle, Hosea & Co. v. Coldwell, 30 Kan. 125, 1 Pac. 329; Kennedy v. Powell, 34 Kan. 22, 25, 7 Pac. 606; Miller v. Manufacturing Co., 53 Kan. 75, 35 Pac. 799.)”
To the same general effect were: Farlin v. Sook, 30 Kan. 401, 1 Pac. 123; Schram v. Taylor, 51 Kan. 547, 33 Pac. 315. (See, also, 20 Cyc. 472; 12 R. C. L. 577-580; and Notes in 11 L. R. A. 466; 31 id. 609, 618; and 36 id. 335, 339.)
No controlling significance attaches to the method by which Clark transferred the property to his wife. The worn-out notion still exists to some extent among laymen that to transfer property from spouse to spouse an intermediate conveyance to a third party is necessary. Of.course, in Kansas, such circuity is superfluous. (Const., art. 15, § 6; Gen. Stat. 1868, ch.-62; Gen. Stat. 1915, ch. 72.)
Neither in the answers to special questions nor in the forty hours’ confinement of the jury can anything be discerned which warrants discussion; and as no substantial error is indicated, the judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a judgment for $15,000, rendered, under the federal employers’ liability act, in favor of the plaintiif for damages caused by injuries sustained by him in a collision between railroad locomotives while he was employed by the defendant as an engineer on a locomotive pulling an extra freight train.
The defendant argues that the injuries of the plaintiif were caused solely by his own negligence in disobeying the company’s rule 93. That rule reads as follows:
“Rule 93. Stations having yard limits will be designated in special rule in time-table. All trains and engines will have the right to work within such yard limits regardless of second- or third-class trains or extras,' but will give way as soon as possible upon their approach. All except first-class trains will approach yard limits under control. The responsibility for accidents at such points will rest with the approaching trains.”
In response to this argument, the plaintiif contends that his conduct, at the time of the accident, was controlled by rule 99, two paragraphs of which read as follows:
“When a train stops or is delayed under circumstances in which it may be overtaken by another train, the flagman must go back immediately with stop signals a sufficient distance to insure, full protection. . - . . When a train is backing out of a siding a flagman must go.a sufficient distance to the rear to insure protection.”
The remainder of rule 99 gives detailed direction for the conduct of trainmen while working under that rule.
The accident occurred at a switch running from the defendant’s main line to the Joy Morton Salt Plant about a mile and a half west of the defendant’s sidetracks in the city of Hutchinson. The Hutchinson yards of the defendant extended from its station in Hutchinson to a point 2,500 feet west of the switch at the salt plant. At the west end of the yard there was a yard-limits signboard. Whiteside, a station on the defendant’s railroad, was situated about three miles west of the salt plant, and about five miles west of the defendant’s station at Hutchinson. There was a block signal about a mile west of the defendant’s station at Hutchinson,, at the crossing of the defendant’s road and that of the Missouri Pacific.- There was another block signal at Whiteside. That part of the road from Whiteside to the signal at the Missouri Pacific crossing constituted one block. The plaintiff was familiar with all these conditions. The block signals were used to control trains operating through the block. At the time of the accident, a switch engine, with- its crew of five men, was working at the salt plant, switching cars to and from the defendant’s road to the salt plant. There were cars standing on the main-line track, and the switch engine was on the sidetrack. The plaintiff came with his engine from the west. At Whiteside he had received signals and information that the track was clear in the block between Whiteside and Hutchinson. His train came at 25 or 30 miles an hour.
The Rock Island railroad parallels the defendant’s road on the south side. A Rock Island freight train was going west, and passed the train on which the plaintiff was working about 200 feet west of the yard-limits signboard west of the salt plant. The Rock Island engineer noticed the conditions at the salt plant, and saw that there would be an accident unless the plaintiff stopped his train. The Rock Island engineer signalled the plaintiff to stop. The plaintiff saw the signal,- cut off the steam on his engine, applied the emergency brakes, and whistled for a clear track. When he passed the yard-limits signboard, he had. reduced his speed to-10 miles an hour. The switch crew saw the plaintiff’s train coming from the west. That crew attempted to run the switch engine from the sidetrack onto the main track, and get the cars standing on the latter track and run them onto the sidetrack, but was prevented from so doing by the collision which occurred. A member of the switch crew, when he heard the whistle of the plaintiff’s engine, went to the switch stand, changed the switch, but finally left it open. The plaintiff’s engine ran into the open switch and collided with the switch engine. The plaintiff’s foot was crushed in the accident. This action was brought to recover damages for the injuries sustained by the plaintiff.
The jury made special findings of fact as follows u
“Q. 1. At what rate of speed was plaintiff’s train traveling when it entered the yard limits at Hutchinson? A. 1. About ten miles an hour.
“Q. 2. Did the plaintiff enter the yard limits at Hutchinson with his train under control, so that he could stop his train within the distance that the track was seen to be clear? A. 2. Yes. ,
“Q. 3. If you answer the last question ‘yes’, state why plaintiff did not stop his train in time to prevent the collision? A. 3. Didn’t have time.
“Q. 4. Under the rules of the defendant company, was the switch crew rightfully occupying the main line track and the switch track at the Morton Salt Plant when the accident occurred? A. 4. No.
“Q. 5. If you answer the last question ‘no,’ state what rule or rules [that] were violated by occupying said tracks. A. 5. By not putting out flagman.
“Q. 6. If you find for the plaintiff, in what respect do you find the defendant, its officers, agents, servants or employes negligent. A. 6. By leaving switch open.
“Q. 7. If the plaintiff had had his engine and train under control as required by Rule No. 93, when he entered the yard limits at Hutchinson, on June 28, 1915, would the accident have happened? A. 7. Yes.
“Q. 8. If you answer the above question ‘yes,’ state how the accident would have happened. A. 8. Account of open switch.
“Q. 9. Was the plaintiff guilty of negligence contributing to the accident? A. 9. No.”
The defendant contends that these findings are inconsistent with, and contradictory to, each other, and that some of them are not only not supported by the evidence, but are absolutely contradictory thereto. This contention is based on the effect to be given rule 93. The response of the plaintiff is that he was controlled by rule 99, and not by rule 93. Under the findings, if rule 93 governed, the plaintiff was negligent; if rule 99 gov erned, the switch crew was negligent. This makes it necessary to construe rules 93 and 99 with reference to each other, and to ascertain which rule governed the plaintiff at the time of the accident. Rule 93 is specific and clear, and purports to govern the operation of trains within yard limits. If rule 99 governs within yard limits, there is no room for the operation of rule 93. Rule 99 would then cover the entire field of railroad operations, including those .in railroad yards. The operation of rule 99 in railroad yards, where there is a large amount of traffic, would be practically impossible, for the reason that switch engines could not send flagmen to the front and to the rear as often as it becomes necessary to move the switch engine forward and back, on, or across, main-line tracks. If rule 93 governs within yard limits, and rule 99 governs in all places outside of yard limits, both rules are effective. The only reasonable conclusion that can be reached is that rule 93 governs the operation of extra freight trains within yard limits.
The plaintiff invokes the aid-of sections 8492-8495 of the General Statutes of 1915. The response is that the state statute does not enlarge the defendant’s liability over that created by the federal act. (Roebuck v. Railway Co., 99 Kan. 544, 162 Pac. 1153; Seaboard Air Line v. Horton, 233 U. S. 492; Richey, Federal Employers’ Liability, 2d ed., § 52.)
The present action is similar to Pyles v. Railway Co., 97 Kan. 455, 155 Pac. 788. In, that case this court said:
“The jury returned an affirmative answer to the question: ‘If the deceased, Walter Pyles, had had his engine and train under control, as required by the rules, when he entered the yard limits at South Winfield on April 1, 1912, would the accident have happened?’ This finding, among others, is attacked by the defendant as without support in the evidence. ‘Under control’ was defined by the rules as meaning — ‘ability to stop a train within the distance track is seen to be clear.’ Inasmuch as the switchman’s flag, or signal made by swinging his lantern across the track, given while the incoming train was on the bridge, something over 1,500 feet away, was seen by the engine crew (as shown by the answering whistle) it seems clear that if the train had been even then under control the collision would have been prevented.” (p. 457.)
In the present case, the jury found that the plaintiff had his train under control 2,500 feet away from the place of the accident. He then knew there was an obstruction on the track at the salt plant. He could have prevented the accident. Under rule 93, it was his duty to prevent the accident. He did not do so, and, therefore, he cannot recover.
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The opinion of the court was delivered by
Porter, J.:
In the fall of 1916 the defendant had the general contract for the erection of a school building in district No. 13 in Brown county.' The plaintiff had the contract for installing in the building a heating system.' Late in the following January the heating plant, which was practically completed, had been tested and found satisfactory, but had not been formally accepted nor paid for by the district board. It was being used with the knowledge and consent of the board, however, for the purpose of heating the building while the defendant finished the work under his contract. The plaintiff brought this action to recover damages, alleging that on account of the carelessness of defendant’s employees in wrongfully'taking possession of the heating plant and allowing the water to freeze and burst the pipes, it became necessary for him to purchase and install a new boiler, fittings, and supplies, in' order to repair the plant, and that' he incurred expenses amounting to $500, for which he asks judgment. The answer was a general denial and a plea of contributory negligence. The jury returned a verdict in favor of the plaintiff for $385.60, and defendant appeals from the judgment.
It is complained that the court excluded competent testimony, which has been brought upon the record by affidavits in support of the motion for a new trial. The defendant contended and sought to show that the heating system had been turned over to the school board. He offered evidence to show that he refused to sign his contract for the erection of the building unless the board would agree to furnish him heat to finish the work, and that the board agreed to do this; also, that the board wanted the schoolhouse finished, which could not be done without heat, and that he notified the board that he was about to suspend work unless heat was furnished according to his contract with the board, and that, on the demand of the members of the board, plaintiff connected up the heating plant, tested it out and turned it over to the board. He also offered evidence to show that after the accident occurred and the plant had been damaged the district board met with the plaintiff and agreed to pay him $200 additional provided he would repair the heating system. Some of this testimony was excluded, but sufficient was admitted to show that the board did agree to pay him this amount toward the expense of repairing the injury to the heating system. It is not denied that the contract was made with the board, but it is claimed that the contract was without consideration and void. There is a contention, too, that the $200 was not to be in lieu of damages, but merely to induce plaintiff to consent to make the repairs. This seems technical p,nd without substantial merit. If the arrangement by which the board was to pay plaintiff $200 toward the expense of the repairs is valid and enforceable, he ought not to be permitted to recover from defendant more than the difference between that and the ac tual damages he sustained. We think the court erred in holding that proof of the subsequent contract would be competent only on condition that it could be shown that the money which the board agreed to pay was to be in lieu of damages. Of course, it was to be paid to compensate plaintiff for repairing the damages to the heating system. If he were paid the contract price for his work and someone else made the repairs plaintiff would have sustained no damages at all. The court charged that the evidence showed that the heating plant at the time the accident occurred had not been accepted by the board. While it had not been formally accepted, the evidence shows that the heating system had been fired up and tested by the plaintiff and was found to be satisfactory. It was practically completed, and members of the board testified they took part in operating it during the absence of the plaintiff. It appears from the evidence, too, that the system was operated with the knowledge of the members of the board, and that they consented to defendant’s use of it for the purpose of furnishing heat while he finished the plastering and other parts of the work included in his own contract. No formal turning over' Of the systeril was necessary to accomplish at least the .temporary acceptance of it by the board. Moreover,'- the evidence seems to show, without any serious conflict, that it was understood by all the parties that the heating plant would be used for heating the building while the defendant was finishing his contract. There was at least a question whether the board might not be held responsible for the repairs, and it cannot, therefore, be said that the arrangement to pay the plaintiff $200 for repairing the damages was without consideration. Since the amount of compensation plaintiff should receive has been determined by the jury, and there is no room for a serious dispute as to the other facts, it would be useless to require another trial. In our opinion, justice will be best subserved by having the judgment credited with the amount the district board, agreed to pay plaintiff, and the judgment will be modified accordingly. | [
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The opinion of the court was delivered by
Porter, J.:
The appellant was convicted of violating the prohibitory liquor law. On his preliminary examination be.fore a justice he filed a motion to quash on the ground that the complaint was not properly verified. Five minutes later he gave bond for his appearance in the district court, and was released from custody. When the case was called for trial he presented the motion to quash on the ground that the complaint was verified by the county attorney on information and belief. The motion was overruled, and the casé proceeded to trial.
His sole contention is that the motion to quash should have been sustained. The complaint was insufficient (The State v. Gleason, 32 Kan. 245, 4 Pac. 363), but the appellant waived the. defect by giving bond for his appearance. The case differs but slightly from that of The State v. Edwards, 93 Kan. 598, 144 Pac. 1009, where, instead of filing a motion to quash, the defendant' presented a written protest against being held upon a warrant where the complaint was verified on information and belief. The protest was ignored, and he immediately gave bond and was released. It was held that the voluntary action on his part waived the defect against which he had protested. The protest in that case attacked the sufficiency of the complaint quite as fully as a motion to quash, and we see no substantial difference between that case and this. The appellant was in custody for five minute^ after he had called the attention of the examining magistrate' to the defect in the complaint. He could have stood upon his rights and obtained his release by habeas corpus, which, however, would not have served his purpose, bcause he could,-and doubtless would, have been rearrested upon a warrant based upon a sufficient complaint. (The State v. Miller, 87 Kan. 454, 124 Pac. 361.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The petition for a rehearing makes the criticism that the court’s opinion did not discuss the effect of a recent survey of the land boundaries and the location of the public road involved in this lawsuit. This survey was made after the case was tried in the district court, and a copy of the surveyor’s report was filed in this court, but the plaintiff made no mention of it in his brief. The court invited him to suggest what significance can be attached to that new survey in this appeal which seeks a review of errors alleged to have been made by the trial court. Plaintiff now cites section 580 of the civil code. That code provision does not help to determine the question whether the trial court committed error, and on appeal that is the only matter which this court can consider. The trial court committed no error. It correctly decided the case on the evidence presented to it. Viewed in the light of the constitution, section 580 of the civil code is not so efficacious as to provide .a cure for a failure to fully present a cause in the trial court, although an uncritical reading of its text might suggest that interpretation. (See In re Burnette, 73 Kan. 609, 85 Pac. 575; and Wideman v. Faivre, 100 Kan. 102, 107, 108, 103 Pac. 619, and discussions in cases cited therein.)
The petition for a rehearing is denied. | [
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The opinion of the court was delivered by
Porter, J.:
The sole question for determination is whether the trial court erred in sustaining defendant’s motion for judgment on the pleadings. It is. conceded that the motion is in substance a demurrer to the petition. The action was for damages for personal injuries alleged to have been sustained through the negligence of the city. On plaintiff’s former appeal the action of the trial court in overruling a demurrer to defendant’s answer was affirmed. (Frost v. City of Topeka, 98 Kan. 636, 161 Pac. 936.) The syllabus of that case states the facts and the law which was applied, and reads:
“Dynamite caps were used in blasting preparatory to installing water and sewer systems in the city’s detention hospital while it was under construction. Employees of the city negligently failed to remove an unused sack of caps from the grounds on completion of the hospital. The plaintiff, a child of nine years, was taken to the hospital with his parents who were afflicted with smallpox, and was allowed to play about the grounds. He found the caps and exploded one of them and was injured. The hospital was established, owned and maintained by the city for the sole purpose of detaining and treating persons afflicted with smallpox. Held, the city is not liable in damages for the plaintiff’s injury.”
Substantially the only difference between the plaintiff’s petition and the defendant’s answer, considered on the other appeal, is, that the answer alleged the facts showing the purpose for which the dynamite caps were brought to the grounds of the detention hospital. We cannot agree with the contention' of the plaintiff that an entirely different question is now presented. Leaving out of consideration the facts alleged in the answer, it is- manifest from the former decision that on the petition itself the plaintiff has failed to show any liability on the part of the city. It is insisted, however, that the question of governmental duties and functions is not involved in the present case, and that the facts set forth in the petition show a right to recover on the ground that the city maintained on the hospital grounds an attractive and dangerous nuisance. In the former opinion it was said:
“The employees of the city who caused the hospital grounds to be unsafe by negligently failing to remove the portion of the supply of dynamite caps not consumed in blasting may be personally responsible for the consequences of their conduct but the city is not.” (p. 639.)
The case of Butler v. Kansas City, 97 Kan. 239, 155 Pac. 12, a detention hospital case, was cited as conclusive, and the following statement of the law in the syllabus of the Butler case was reaffirmed:
“Where a municipal corporation maintains a pesthouse for the treatment and isolation of persons who have been exposed to or affected with smallpox, it performs a governmental duty.
“The rule that the governmental agencies of the state are not liable in an action of tort for either misfeasance or nonfeasance is applied to an action against a city to recover damages for personal injuries resulting from the defective condition of the floor of a pesthouse where plaintiff, who was affected with smallpox, was confined by the city authorities.” (syl. ¶¶ 1, 2.)
The principles of law which relieve the city from liability in cases like this cannot be avoided upon any theory of an attractive nuisance.
The judgment is affirmed. | [
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