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Per Curiam:
A rehearing was allowed in this case. It was set down for argument. New briefs were filed and a vigorous oral argument was had. This court has reexamined the authorities cited and reconsidered the entire record. No reason appears why the original decision of affirmance should be disturbed, and it is adhered to. | [
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The opinion of the court was delivered by
Ti-iiele, J.:
This is an appeal from an order overruling a demurrer.
Suit was instituted against the General Exchange Insurance Corporation as sole defendant. The original petition alleged that on September 29, 1928, the insurance corporation issued its policy insuring plaintiff against loss by theft of a described automobile; that on September 1, 1929, the automobile was stolen; that proof of loss was made, but that the insurance corporation refused to pay. Judgment for the face of the policy and for an attorney’s fee was asked. The terms of the insurance policy were that the corporation “does insure the dealer and the purchaser named below and the General Motors Acceptance Corporation as their interests may appear,” to an amount not exceeding the actual cash value of the automobile, against certain specified risks, including theft. C. R. McGinnis is named as purchaser, and Sherer Bell Motor Company as dealer. The following clause is included:
“Acknowledgment is hereby made of the notice of the existence of a lien on the above-described automobile, in favor of said dealer or General Motors Acceptance Corporation, or their assignees.”
The policy was effective September 29, 1928, and expired September 29, 1929. The insurance corporation filed an answer denying there had been any theft of the automobile and denying that the petition stated a cause of action in favor of plaintiff and against it for the reason that the pleadings disclosed a defect of parties in that the policy of insurance was issued by the insurance corporation as payor to the owner, the dealer and the acceptance corporation, as the three named assureds or payees, was a joint contract, and that all three must join or be joined in an action for alleged breach of the contract, and that the failure to join the said owner, dealer and acceptance corporation was a fatal defect of parties, and a cause of action was not stated. On October 6, 1934, the court granted plaintiff’s motion for permission to amend his petition and bring in as parties, either plaintiff or defendant, the General Motors Acceptance Corporation and the Sherer Bell Motor Company (sometimes referred to as Shearer-Bell Motor Co.), and thereafter, and on October 18, 1934, which was five years and forty-eight days after the automobile was stolen, plaintiff filed an amended petition, which, so far as need here be noticed, repeated the allegations of the original petition, and added the following:
“That said policy of insurance was made payable to the plaintiff, the Shearer-Bell Motor Company and the General Motors Acceptance Corporation as said parties’ interest might appear; that said defendant, Shearer-Bell Motor Company and General Motors Acceptance Corporation, had, at the time of the theft of the automobile, as hereinbefore alleged, no interest in said automobile or in the proceeds from the afore alleged insurance policy.”
To this amended petition the acceptance corporation demurred on the grounds that the petition did not state facts sufficient to constitute a cause of action, and that the petition shows on its face that plaintiff is barred by the statute of limitations.
The trial court overruled this demurrer and both the insurance corporation and the acceptance corporation appeal.
The appellants’ contention is this: The contract was a joint one, and until suit was brought in which all of the joint obligees were parties,, no cause of action was stated, and that not having been attempted until after five years from the time of theft of the automobile the action was barred. It is also contended that the plaintiff’s petition did not state a cause of action against the coobligees. It is quite apparent from the policy that the automobile was sold on deferred payment or payments, and that the interests of the various parties might vary from time to time. It is also quite apparent that any time the automobile was fully paid for, both the dealer and the mortgagee would have no interest therein. It is likewise true that in event of loss, under certain conditions, the amount of insurance paid might be divisible in two or three ways, or possibly would all go to the owner if the car was fully paid for and no lien existed. It may be said the parties might have determinable interests in the proceeds in event of loss — it may be questioned whether the interests were joint.
For our purposes it may be conceded that the general rule is that persons having a joint legal interest in the subject of the action must join as plaintiffs (Restatement, Contracts § 129) and that if the consent of one cannot be obtained he may be joined as a defendant and that the provisions of our code are to that effect. (R. S. 60-412.) It must also be noted, however, that under R. S. 60-401 every action must be prosecuted in the name of the real party in interest; that under R. S. 60-741 if it appears from the petition or in any other manner there is a defect of parties plaintiff the court may require them to be brought in; that under R. S. 60-759 the court may in furtherance of justice amend any pleading or process, when such amendment does not change substantially the claim, and that under R. S. 6.0-760 any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party shall be disregarded. The original petition made no specific allegation that the plaintiff was the sole party in interest, nor that the coinsureds under the insurance policy had no present interest in the proceeds of the policy on account of the claimed loss, but it was alleged that plaintiff’s automobile was stolen, that its actual cash value was in excess of the amount of the insurance, and that plaintiff had given due notice of the loss and theft with affirmative proof thereof to the insurance company, so that it may be said the insurance company was aware of plaintiff’s claim; and that it was aware plaintiff was asserting an individual claim to the entire proceeds is evident from its answer, for it is alleged there was no theft, but a voluntary parting with title and possession by a loan of the automobile to a third person, and by reason thereof no loss under the terms of the policy. The matter of joint interest by the plaintiff, the dealer and the acceptance corporation was then pleaded. To meet the objection thus raised, the plaintiff filed his amended petition which included the paragraph above quoted.
The first question for our consideration is whether that changed his cause of action. The demurrer of the acceptance corporation to the amended petition admitted that at the time of the theft- of the automobile it had no interest in it nor in the proceeds of the insurance policy. It seems fruitless to argue that under such circumstances it is at all material whether the statute of limitation had or had not run as between plaintiff and his coinsured, for if it had no interest at the time of the claimed theft, it was not then and has not since been a real party in interest, the only purpose in filing the amended petition was to avoid a technical difficulty and did not change the cause of action which the plaintiff had against the insurance company. If the acceptance corporation had an interest in the proceeds of the insurance, it would have been the insurance company which could plead the bar of the statute. The insurance company, in any event, was not concerned as to how insurance moneys, which it might be compelled to pay, were divided between plaintiff, the dealer and the acceptance corporation, so long as it was protected from further liability under the policy of insurance.
In Railway Co. v. Hucklebridge, 62 Kan. 506, 64 Pac. 58, it was held:
“An agreement between two persons, one to furnish money to purchase and ship cattle, the other to perform the labor of buying and shipping them, upon sale the profits to be shared and the losses to be borne equally, constitutes them partners as to one who has inflicted loss upon them by injuring the cattle, and a suit for damages for the injury must be brought in the name of both.” (Syl. ¶ 1.)
The same action was here again and reported in Hucklebridge v. Railway Co., 66 Kan. 443, 71 Pac. 814, it being there held:
“The amendment of a petition, in an action for damages, by the addition of the name of a party plaintiff, does not change substantially the claim or defense.
“Such an amendment, made more than two years after the cause of action accrued, relates back to the date of the commencement of the action, and the cause of action is not, for that reason, barred by the statute of limitations.” (Syl. 11¶ 1, 2.)
In Curry v. Railroad Co., 58 Kan. 6, 48 Pac. 579, it was held:
“A contract entered into and performed jointly by two or more persons, the compensation for the performance of which is separate and distinct as to each of such persons, may be sued upon separately by each of them, to recover the amount due to him or the damages sustained by him.” (Syl. ¶ 3.)
In 47 C. J. 64 it is said:
“A party to a contract, who has a legal interest therein, may sue on the contract without joining with him as plaintiffs others who contracted jointly with him with defendant where the others havewo interest in the suit. Where the statute requires a suit to be brought by the real parties in interest, one who is the only party interested may sue on a contract really made for the benefit of himself and others.”
In Service v. Bank, 62 Kan. 857, 62 Pac. 670, Alexander made a note and mortgage to Bryant, which was sold to the Farmington Savings Bank. It sent the note to attorneys at Wichita, who, through a misconception, brought suit to foreclose in the name of Bryant. After a judgment, Bryant filed a purported release and satisfaction of the judgment. The bank brought suit to cancel the release. It then discovered the suit in the name of Bryant and sought to be substituted in that action and this was allowed. The release was set aside and foreclosure allowed. Mrs. Alexander, whose name had been changed to Service in a divorce action, appealed. In disposing of the matter, attention was directed to the great latitude given to trial courts in permitting amendments to cure defects, supply omissions and prevent injustice. In disposing of a contention that the cause of action had been changed and the bar of the statute of limitations had fallen, it was said:
“As the amendment did not introduce a new claim or cause of action, it is not to be deemed a change of the action itself; and, under the liberal provisions of our code authorizing amendments, we think the amendment relates back to the beginning of the action, and that the statute of limitations did not run against the owner of the paper during the pendency of the proceeding. (Thomas v. Fame Ins. Co., 108 Ill. 91; Busw. Lim. §364.)
“If the substituted party had introduced a new claim and cause of action by the amendment, against which the statute of limitations had then run, the defense would have been available; but the object of the action from the beginning, as we have seen, was a recovery against the Alexanders upon the note which they had executed, and the foreclosure of the mortgage given by them as security for its payment.” (p. 862.)
A similar question was under consideration in Williams v. Bridge & Iron Co., 111 Kan. 34, 206 Pac. 327, where it was held a substitution did not change a cause of action nor did the statute of limita tions run against the substituted plaintiff during the pendency of the action as originally begun.
In Burkhardt M. & E. P. Co. v. Hudson, 165 Wis. 412, 162 N. W. 429, the company brought suit to recover illegal taxes. After the statutory time had expired, other taxing districts were made parties. It was claimed that bringing in of other parties made a new cause of action which was barred. It was held that the bringing in of additional parties in no way affected plaintiff’s rights against the defendant city.
In the case before us the plaintiff, although imperfectly, stated a cause of action against the insurance company, which is not concerned about the relations between the plaintiff, the dealer and the acceptance corporation, further than that when it paid any loss it be fully released from liability, and neither is it in a position to complain because any cause of action the dealer and the acceptance corporation may have had against it may now be barred.
We conclude that the amendment of the petition by bringing in of additional parties defendant and alleging they had no interest in the insurance moneys sought to be recovered did not change the cause of action; that the amendment related back to the commencement of the action and for that reason the cause of action is not barred by the statute of limitations.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an appeal by the defendant from a judgment in favor of the plaintiff in an action involving the proper division between plaintiff and defendant of the profits derived from the construction of a school building at Fredonia, the plaintiff claiming to have been entitled to an equal share of the profits after the first $1,600, and the defendant claiming 75 percent as against 25 percent for the plaintiff as to all the profit, including the first $1,600. There is no dispute as to the amount of profit nor as to division of the first $1,600 thereof, of which it is agreed the plaintiff was to receive $400, or 25 percent, and the defendant, $1,200, or 75 percent.
The amended petition alleges the formation of a partnership between the plaintiff and defendant by oral contract for the construction of buildings, the profits and losses to be shared equally between the two parties, and that immediately prior to the filing of their bid with the board of education for the erection of this Fredonia school building, the defendant insisted upon a modification of the oral contract as to equal profits so that as to the first $1,600 of profit, which they had figured on making on the contract, he should receive $1,200 and plaintiff only $400, and that plaintiff agreed thereto.
The answer is a general denial and a specific denial of any oral agreement as to the equal sharing of profits and a denial of any partnership .between these parties, but alleges there was an oral contract of joint adventure as to the construction of the Fredonia building by which defendant was to finance the construction, and plaintiff was to work on this particular building by the laying of brick and to supervise the laying of brick. The answer sets out the long experience of the defendant in such work and his financial ability necessary to furnish security and care for the payment of labor and material, as compared with the inexperience and lack of financial ability of the plaintiff.
There is no dispute as to the fact that the actual profit on the construction of the building was $7,302.45, instead of $1,600. There is in the evidence, but not in the pleadings, a reference to there being a definite project covered by the bid of about $29,000, and an alternate part which made the total construction cost nearly or about $42,000.
The case was tried to the court, and it made findings of fact and conclusions of law. The essential ones relating to the matters in controversy are the first, second and seventh findings of fact and the first conclusion of law, which are as follows:
"Findings of Fact
“1. The court finds that in the month of June, 1934, the plaintiff and defendant entered into a verbal contract by which the plaintiff was to endeavor to secure contracts and submit the propositions to the defendant, who would assist him if in his judgment the business would justify it, and that under such arrangement that they were to share equally in the profit and loss.
“2. The court, finds that the plaintiff in this case did learn of the letting of a contract in the city of Fredonia for school district .No. 40, and that he and the defendant submitted a bid and were awarded such contract, and that by a verbal agreement just before the bid was submitted, it was agreed that the plaintiff was to have $400 and the defendant $1,200 out of the first $1,600 profit that was made, and that a profit of $7,302.45 was made on such contract, and that the plaintiff should have $400 of that amount and the defendant $1,200 and the balance should be equally divided."
“7. The court finds that the partnership should be dissolved, but in order to make a final settlement of the matter, the court will retain jurisdiction of the case and give the parties an opportunity to make a speedy adjustment if they can do so; if not, the court will take such further proceedings as may be necessary.
“Conclusions of Law
“1. The court concludes as a matter of law there was a partnership existing between plaintiff and defendant for the construction of the gymnasium for school district No. 40, and that out of the first $1,600 profit plaintiff was to have $400 and defendant $1,200 and the balance of the profits should be divided equally.”
The omitted findings of fact concern accounts, bills and figures, and the second and third conclusions of law place the costs on the defendant and dissolve the partnership, retaining jurisdiction for any further or necessary order in that regard.
The journal entry, which follows the findings and conclusions, directs the clerk of the court, in whose custody the funds in dispute were held, to reserve $100 for the costs of the action and the remaining sum of $1,425.60 to be awarded to the plaintiff subject to the final outcome of any appeal.
Before the defendant filed his answer in the case he filed a motion to strike out paragraphs 15, 16 and 17 of the amended petition for the reason that they were irrelevant and redundant. The motion was overruled and the defendant excepted thereto. In the trial of the case the plaintiff introduced some evidence in support of those allegations and also of other similar matters not alleged in the amended petition over the objection of the defendant. Both these propositions are made the subject of assigned error and will be considered together.
The three paragraphs in the amended petition, asked to be stricken out, concerned the endeavors of the plaintiff to secure for himself and the defendant a contract for the construction of a $30,000 building in Joplin, Mo., and charged the failure to get the contract to the conduct of the defendant. The evidence introduced concerning this matter showed it occurred after the letting of the school contract at Fredonia, and there was also some evidence introduced concerning attempts to secure another building contract at Fredonia and one at Parsons, all of which were subsequent to the school contract.
The theory upon which these three paragraphs were inserted in the amended petition was evidently to help show the existence of the partnership alleged, and the same can be said as to the introduction of evidence to show that this and other transactions were being considered or attempted to be handled by these parties pursuant to an alleged oral agreement of partnership made at Tulsa. Under the pleadings the burden was upon the plaintiff to prove a partnership, and any allegations or competent evidence tending toward that end were certainly relevant. The fact that the financial matters involved in this case are limited to the one contract, and these other matters occurred later than the letting of the Fredonia contract, will not prevent such circumstances tending to prove or disprove the making of an oral contract of partnership before the letting of the Fredonia contract.
The theory of the defendant is that whatever contract, if any there may have been made at Tulsa, was subsequently changed and modified before making the bid at Fredonia, but that is not admitted by the plaintiff either in the pleadings or in the trial. It is one of the issues in the case and not a conclusion on which allegations or proof can be excluded. Appellant cites the following from 13 C. J. 595:
“An agreement, when changed by the mutual consent of the parties, becomes a new agreement, which takes the place of the old, and consists of the new terms and as much of the old agreement as the parties have agreed shall remain unchanged; in other words, a contract may be abrogated in part and stand as to the residue.”
This is very applicable, but the dispute is, How far was the Tulsa contract changed? If only in part, it still stands with the modified part as the contract.
As to the failure to strike out these three paragraphs it was said in Sramek v. Sklenar, 73 Kan. 450, 85 Pac. 566:
“Even if such facts are redundant and surplusage, and could be proved without being pleaded, it is within the discretion of the court to strike out or retain them.” (Syl. ¶ 2.)
Appellant made the following admission during the trial:
“We will admit that they placed a bid on these two or three particular jobs that he has mentioned in the name of DeWitt & Stalker. They didn’t receive the contract. If that is the purpose of it, we will admit they did put the bids in as a firm and attempted to get two or three jobs, while this building was under construction and before it was completed.”
This admission was immediately followed by a motion of the appellant to strike out all such evidence because such contracts were neither under the original agreement nor the second agreement. No allowance seems to be made by appellant for the possibility of the original contract being modified in part as to the Fredonia school contract. We think such is possible and plaintiff should have an opportunity to prove it, if he can, and therefore see no error in these two rulings of the trial court.
Appellant further objected to the introduction of evidence of the way and manner in which the contract with the board of education was signed, and the way and manner in which the subcontract and insurance company contracts were signed, and being improperly so used to prove a partnership. Appellant contends such evidence did not tend to establish a contract between the parties, which is necessary to form a partnership. The plaintiff was permitted, over the objection of the defendant, to testify that all such contracts were signed DeWitt & Stalker, and some of the contracts were offered in evidence when the following admission was made:
“We admit all the subcontracts there were, were signed DeWitt & Stalker, the same as the other contract. We admit there was a joint firm name of DeWitt & Stalker and the building was built under the name of DeWitt & Stalker, and they signed contracts under the name DeWitt & Stalker; all business carried on under the name DeWitt & Stalker.”
It is said in 47 C. J. 725:
“Subject to the general rules as to the admissibility of evidence, when the issue of partnership is raised in a suit between business associates, evidence is admissible which tends to show that one of the parties was the sole proprietor of the business, while the other was a mere employee; ... or their conduct of the business was such as to indicate that they were, or that they were not, partners.” (See, also, the treatment of this subject on the two preceding pages.) '
If this evidence tended to prove a partnership it was competent, as that was the principal issue involved in the case.
Serious objection was also made to plaintiff’s evidence as to the part of the building work and supervision performed by each of these two parties. We fail to find any merit in this contention.
In connection with these matters it is reasoned and urged that the $1,600 profit on the building and its division took the place of the Tulsa contract, if there was such, treating the $1,600 as being the whole of the profit contemplated or expected on the schoolhouse contract. This is a proper theory because there was evidence to that effect, but in such reasoning we must not forget there was evidence to the contrary, especially since this seems to be largely a fact case. The plaintiff in cross-examination said the $1,600 was not considered by them as probably or possibly all the profits they could make on the job, and on further cross-examination he explained that he did not include the wages they would each make by their own work in laying brick. The defendant in the closing part of his testimony explained the alternate part of the school contract and its relation to the estimates theretofore made.
The third proposition urged by the appellant, covering several assignments of error, concerns mainly the sufficiency of the evidence to sustain the findings as to the existence of an oral agreement of partnership made at Tulsa, it being subject to the laws of the state, where made, and as far as the Fredonia transaction was concerned it could not come under the Tulsa agreement because the amount involved exceeded the limit there mentioned, and the distinction is further urged between a partnership and a joint adventure, purely speculative and contingent at the time of the alleged Tulsa agreement. Reference is made by appellant to many definitions and decisions, among which is Wade v. Hornaday, 92 Kan. 293, 140 Pac. 870, where it was held:
"... A definition of partnership which is at once accurate, comprehensive and exclusive is extremely difficult. Participation in the profits is only regarded as a circumstance to be considered in determining whether or not a partnership existed. The mere fact that the parties called themselves partners and referred to their business relation as a partnership will not necessarily make them partners nor their business a partnership.” (Syl. U 1.)
Some of the other cases cited in this connection concern the evidence of partnership where third parties were concerned, and others show there can be a division of net commission which would not establish a partnership. In another case, Beard v. Rowland, 71 Kan. 873, 81 Pac. 188, it was held that profit sharing was not always an unfailing test of the existence of a partnership, but it was only one of the tests and may be controlled by other considerations. This does not make such evidence incompetent, but such as must be considered with other testimony.
A joint adventure is well defined and distinguished from a partnership in National Bank v. Hoover, 114 Kan. 394, 218 Pac. 1003, and similar distinctions are made in citations from 47 C. J., which, according to the testimony of the defendant in this case, might make the transaction here involved a joint adventure, but the theory of a litigant cannot be held to necessarily apply where there is a conflict in essential parts of the testimony.
A good and well-recognized definition of a partnership is found in 47 C. J. 640, as follows:
“A contract of two or more competent persons, to place their money, effects, labor and skill, or some or all of them, in lawful commerce or business, and to divide the profit and bear the loss, in certain proportions.”
The fourth proposition concerns the assignments of error in overruling defendant’s demurrer to plaintiff’s evidence, and in overruling defendant’s motion to set aside the judgment and grant a new trial, urging that the judgment is contrary to law and there is insufficient evidence to support the findings. If the arrangement between these parties had been in writing and it contained no ambiguity, these arguments of appellant would be most effective, but there is a conflict in the testimony on all or nearly all of the essential features in the case, and it becomes largely a question of fact, and we find there was evidence on such disputed facts, which if believed, would support the conclusion of the trial court and justify the rulings on the demurrer and motions above enumerated. A pertinent distinction applicable to the case at bar is found in 20 R. C. L. 849, which is as follows:
“The question whether a partnership exists between particular persons is a mixed question of law and fact. Where there is no dispute as regards the facts the question is one of law for the court to determine. Hence, if the agreement under which a business arrangement is carried on, and which is claimed to be a partnership, is in writing, and free from ambiguity or doubt, its legal effect must be determined as a matter of law. If an attempt to establish a partnership wholly fails through lack of evidence, the court may properly decide as a matter of law that no partnership exists. But the existence of a partnership is also a question of fact, and it is the province of the jury to decide whether those facts exist which show that a partnership has been formed.”
The judgment is affirmed. | [
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The opinion of the court was delivered by
Davis, J.:
In this declaratory judgment action, plaintiff AMCO Insurance Company (AMCO) applied to the district court for res olution of a question involving the issue of whether coverage existed. In its petition for relief, the company set forth three issues, each of which involved a question of whether coverage existed. The parties asked for an answer on a single issue and “preserved for later consideration” the remaining two questions. The threshold and dispositive question raised on this court’s own motion involves appellate jurisdiction. For the reasons set forth below, we dismiss for lack of jurisdiction.
AMCO filed a declaratory judgment action against its insureds, Gerald, Christa, and Teri Beck, concerning a homeowners policy. Teri Beck, the 16-year-old daughter of Gerald and Christa Beck, was babysitting a child, Courtney Moran, in the Moran home when the child was scalded while taking a bath.
In its declaratory judgment action, AMCO asked the district court to find that no coverage for Teri Beck existed. AMCO listed three grounds for the denial of coverage: (1) The business pursuits exception in the policy denied coverage because child care was the business of Teri Beck, (2) the intentional acts exception in the policy excluded coverage, and (3) the failure of the Becks to properly notify AMCO of the accident excluded coverage. However, in its petition, AMCO stated that the parties had determined to submit the issue of the business pursuits exception to the court on stipulated facts and to reserve the other two issues for later consideration. The district court entered a judgment that the business pursuits exception did not exclude coverage. AMCO then appealed this determination.
Two weeks before scheduled oral argument, this court, on its own motion, issued the following order:
“On its own motion, the Court raises the issue of its jurisdiction to hear the above appeal.
“The record indicates the order appealed from decided the validity of only one of three grounds on which the plaintiff’s insurance company denied coverage. Thus, this appears to be an attempted interlocutory appeal which is not in compliance with the requirements of K.S.A. 60-254(b).
“The parties are, therefore, directed to address the jurisdictional issue before this court at the time of oral argument. Any written memorandum thereon should be filed with the Clerk of the Appellate Courts on or before the 20th day of October, 1995.”
Both parties responded with written memoranda. Upon oral argument, counsel for AMCO was asked if it were not to prevail upon the issue of the “business pursuits” exception before this court, would it then be able to present the “intentional acts” exception issue to the district court for a determination of the coverage question. Counsel responded that although it would be unlikely that the question would be presented to the district court, it most certainly could be presented because the parties reserved that question. If unsuccessful, AMCO would then be able to appeal again the “intentional acts” exception to the appellate court. The same may be said of the notice argument reserved by AMCO. Therefore, there is the potential for three separate appeals on the question of coverage.
There is a strong policy against piecemeal appeals in Kansas. See Fredericks v. Foltz, 221 Kan. 28, 31, 557 P.2d 1252 (1976). In Connell v. State Highway Commission, 192 Kan. 371, 374, 388 P.2d 637 (1964), we stated that “[a] judgment or an order is to be considered as final if all the issues in the case are determined, not just part of the issues.” Piecemeal adjudication does not become appealable merely because it is cast in the form of a declaratory judgment, and a declaratory judgment is not appealable if issues relating to further relief have yet to be determined. 22A Am. Jur. 2d, Declaratory Judgments. § 244, p. 884. (citing Curlott v. Campbell, 598 F.2d 1175 [9th Cir. 1979]).
Under K.S.A. 60-1701, regarding declaratory judgments:
“Courts of record within their respective jurisdictions shall have power to declare the rights, status, and other legal relations whether or not further relief is, or could be sought. No action or proceeding shall be dismissed or stayed for the sole reason that only declaratory relief has been sought. The declaratory may be either affirmative or negative in nature; and such declaration shall have the force and effect of a final judgment.”'
Although a declaratory judgment has the effect of a final order and would normally be appealable, in this case, the judgment is not final in that it does not resolve all issues on the policy coverage questions. Even if this court were to affirm the district court’s finding, there would still be the two unresolved issues regarding AM-CO’s duty under its insurance contract. Presumably, the reserved coverage questions could be litigated again before the district court under separate sections of the policy and appealed a second and, perhaps, a third time to this court.
AMCO argues that this matter is not interlocutory because its petition clearly stated that the declaratory judgment was for the limited purpose of settling AMCO’s liability under the business activities exception, with the other defenses being reserved. AMCO contends that the right of reservation has expressly been recognized in Kansas. However, the authority cited by AMCO for this proposition is K.S.A. 60-254(b), which states:
“When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim or third party claim . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims . . . only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims . . . shall not terminate the action . . . .”
It is undisputed that the requirements of K.S.A. 60-254(b) were not complied with and, therefore, AMCO’s argument concerning the right of reservation is not well taken.
AMCO also argues that this declaratory judgment action does not present multiple claims. AMCO contends that it filed this declaratory judgment action to settle only one of its claims — that the business activities exception denies coverage. AMCO states that it was the expressed intention of the parties that the district court decide simply this one issue and that the other grounds were asserted to show that they were not waived.
However, parties may not, by stipulation, vest a court with jurisdiction over a cause which it would not otherwise have had. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, Syl. ¶ 6, 687 P.2d 603 (1984). Simply because the parties stipulated that only one of their claims should be adjudicated, that stipulation does not confer jurisdiction on this court. AMCO’s attempt to obtain an answer on one of three claims, each of which present a dispositive question of whether coverage exists under the policy of insurance, is an attempt to confer jurisdiction where none exists. Accordingly, we dismiss this appeal for lack of jurisdiction.
Appeal dismissed. | [
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The opinion of the court was delivered by
Davis, J.:
Colorado Interstate Gas Company (CIG) and ANR Pipeline Company (ANR) appeal from a dismissal by the Board of Tax Appeals (BOTA) of their claims that the State of Kansas discriminated against them in the valuation, assessment, and taxation of their real and personal property for the years 1992 and 1993. They contend that the failure of the Director of Property Valuation (DPV) to tax them in the same manner as other utilities, certain named railroads, violated the uniform and equal requirement of Art. 11, § 1 of the Kansas Constitution, the Equal Protection Clauses of the Kansas and United States Constitutions, and the Commerce Clause of the United States Constitution, and that BOTA erred in dismissing their claims without a hearing. We affirm in part, reverse in part, and remand for further hearing.
CIG and ANR contend that BOTA’s dismissal of their tax appeals for 1992 and 1993 without a hearing denied them due process of law. They argue that BOTA erred in not granting them a due process hearing upon the mistaken belief the 1992 and 1993 appeals were controlled by In re Tax Appeal of ANR Pipeline Co., 254 Kan. 534, 866 P.2d 1060, cert. denied 513 U.S. 917 (1994). They contend that their tax appeals raise issues not addressed in ANR Pipeline and that ANR Pipeline has been effectively overruled by the decision of the United States Supreme Court in Department of Revenue of Oregon v. ACF Industries, Inc., 510 U.S. 332, 127 L. Ed. 2d 165, 114 S. Ct. 843 (1994).
CIG and ANR were party plaintiffs in the ANR Pipeline case. They, together with other utilities, appealed from a BOTA order affirming the decisions of the DPV for the tax years 1990 and 1991. The argument advanced in ANR Pipeline and rejected by this court was that the pipeline utilities were entitled to the same assessment rate given to certain railroads pursuant to a consent decree entered in Burlington Northern Railroad Company v. Rolfs, D. Kan., No. 89-4124-R, filed August 11, 1989. As noted in ANR Pipeline:
“The effect of [the consent] decree was to fix the railroads’ assessment rate for real property at 25 percent for 1990 and 22.3 percent for 1991. The parties have stipulated that 80 percent of the railroads’ personal property was exempted from taxation with die balance of 20 percent to be assessed at 30 percent of the value. Like BOTA, we are at a loss from the record to see the basis for this exemption, but accept the parties’ stipulation for the purposes of this appeal.” 245 Kan. at 538.
The assessment rate for the real and personal property of public utilities in Kansas during 1990 and 1991 was closer to a 30% rate. Under the terms of the consent decree, the railroads were treated differently than other public utilities and were being taxed at a rate that the State taxed commercial or industrial property. The question we faced and resolved in ANR Pipeline was whether the Railroad Revitalization & Regulatory Reform Act of 1976 (Pub. L. 94-210, 90 Stat. 31, 54-5 [codified at 49 U.S.C. § 11503 (1988)]), commonly referred to as the 4-R Act, preempted Kansas law which assessed railroad property at a rate greater than commercial or industrial property. We held:
“The 4-R Act, as it applies to Kansas and as reflected in the consent decree, simply required that railroad property be assessed at no higher rate than commercial or industrial property. Railroad property was thereby made an exception to subclasses to which public utility property was assigned. . . .
“[T]he 4-R Act placed limitations oh state taxation of railroad property. Railroad property had to be treated the same as ‘other commercial and industrial property.’ There can be little doubt that this is a preemption. If it is not a preemption, the 4-R Act is just a piece of paper suggesting railroads should be treated like other commercial and industrial property and the enforcement section thereof is surplusage. Clearly, that was not the Congressional intent in enacting the 4-R Act.” 254 Kan. at 541-43.
Three days after this court decided ANR Pipeline, the United States Supreme Court decided the case of Department of Revenue of Oregon v. ACF Industries, Inc., 510 U.S. 332. The State of Oregon imposed an ad valorem tax upon all real and personal property within the jurisdiction except property granted an express exemption and subjected all nonexempt property to assessment and taxation in equal and ratable proportion. Oregon also exempted various property classes, including some classes of business personal property. Several companies leased railroad cars to railroads and shippers and under Oregon tax law, these cars were considered nonexempt property. The companies concerned brought suit un der the 4-R Act against Oregon, claiming that the state’s property tax violated § 11503(b)(4) of the 4-R Act by exempting certain classes of commercial and industrial property while taxing railroad cars in full. The Court concluded “that § 11503, which expresses Congress’ resolution of the matter, does not limit the States’ discretion to exempt nonrailroad property, but not railroad property, from ad valorem property taxes of general application.” 127 L. Ed. 2d at 178. The Court further concluded that a state may grant exemptions from a generally applicable ad valorem property tax without exposing the taxation of railroad property to invalidation under subsection (b)(4). 127 L. Ed. 2d at 173.
While the litigation in ANR Pipeline was being conducted before this court, and prior to the time ACF Industries was decided by the United States Supreme Court, the events which provide the basis for this appeal occurred. In a continuation of the negotiated settlement, the DPV and the named railroads entered into consent decrees regarding the 1992 and 1993 tax years. See Burlington Northern Railroad Company v. Beshears, D. Kan., No. 92-4120-C, filed June 1, 1992; Burlington Northern Railroad Company v. Parrish, D. Kan., No. 93-4119-DES, filed May 21, 1993. CIG and ANR filed notices of appeal from the DPV to BOTA for the tax years 1992 and 1993. The 1992 notices of appeal reference the notices of appeal in ANR Pipeline and state:
“1. Taxpayer was assessed and taxed differently than other entities meeting the definition of a public utility, as defined in K.S.A. § 79-5a01, in violation of the Constitutions of the United States and of the State of Kansas which provide for fair, equal and uniform treatment under the laws.
“2. Taxpayer was assessed and taxed differently than other entities meeting the definition of a public utility in violation of the United States Constitution which prohibits the creation of undue burdens on interstate commerce.
“3. Taxpayer does not accept the assessed value as stated in the referenced decision.
“WHEREFORE, Taxpayer requests the Board to conduct a hearing pursuant to K.S.A. § 74-2438, to find that Taxpayer is entitled to be assessed uniformly and equally; to adjust its Kansas assessed value to reflect fair, uniform, and equal treatment; to adjust its Kansas assessed value in order to avoid undue burdens on interstate commerce; to recertify or order a recertification of Taxpayer’s Kansas Assessed Value; or, in the event that recertification is untimely, to order a refund calculated accordingly.”
The 1993 notices of appeal simply state that
“[CIG and ANR give] notice of appeal of the decision or final action of the Director of Property Valuation dated June 11, 1993 (DPV ID No. G902) to the extent that Taxpayer was assessed, valued and taxed differently than (1) other entities meeting the definition of a public utility, as defined in K.S.A. 79-5a01; and (2) entities defined as commercial and industrial which is in violation of the constitutions of the United States and of the State of Kansas.
“WHEREFORE, Taxpayer requests the Board to conduct a hearing pursuant to K.S.A. § 74-2438, to find that Taxpayer is entitled to be assessed uniformly and equally; to adjust its Kansas assessed value to reflect fair, uniform, and equal treatment among members of the same subclass; to adjust its Kansas assessed value to reflect fair and equal treatment among similarly situated taxpayers; to adjust its Kansas assessed value in order to avoid undue burdens on interstate commerce; to recertify or order a recertification of Taxpayer’s Kansas assessed value; or, in the event that recertification is untimely, to order a refund calculated accordingly.”
For the 1992 tax year only, the parties stipulated to a set of facts. On February 7, 1994, without holding a hearing on any of the appeals, BOTA filed its decision in all the matters. BOTA found that appellants were asking to be afforded the same favorable tax treatment as railroads and that this issue had already been decided in ANR Pipeline. As a result, BOTA denied appellants’ appeals.
Appellants filed motions for reconsideration for the 1992 tax year, arguing that ANR Pipeline was not a final case, as a motion for rehearing had been filed. Appellants also argued that even if the Kansas Supreme Court denied rehearing, a petition for writ of certiorari would be filed in the United States Supreme Court and the decision should be stayed until such a time as that had been decided. Appellants further contended that ACF Industries had effectively overruled ANR Pipeline and that BOTA should reopen the case in light of that ruling. It should be noted that this court denied appellants’ motions for reconsideration in ANR Pipeline and the United States Supreme Court denied appellants’ petition for writ of certiorari.
Appellants also filed motions for reconsideration for the 1993 tax year. In these motions, appellants alleged that BOTA had failed to recognize the other issues they were raising that had nothing to do with the decision in ANR Pipeline, specifically, questions con ceming a 1992 amendment to the Kansas Constitution as well as the assessment and taxation figures for 1993. The motions also recited issues concerning the purported conflict between ANR Pipeline and ACF Industries.
In rulings dated March 11, 1994, BOTA stated that ACF Industries did not overrule ANR Pipeline and that appellants had not proffered any new evidence which would warrant an evidentiary hearing on the matter. Accordingly, BOTA denied appellants’ motions for reconsideration in all cases.
Appellants contend that ACF Industries overruled in part our decision in ANR Pipeline and that this fact must be considered by BOTA for the tax years 1992 and 1993. Specifically, appellants argue that the United States Supreme Court in ACF Industries virtually removed tax exemptions granted by states from consideration under the 4-R Act. Since the consent decrees granted the named railroads an 80% tax exemption of their Kansas personally for the years 1992 and 1993 with the expressed intent to “eliminate ad valorem tax discrimination against plaintiffs’ personalty in the State of Kansas” in accord with the provisions of the 4-R Act, and since the same 80% exemption was not granted to appellants herein, also public utilities, appellants argue that the difference in treatment discriminated against them. Appellants contend that this issue was never addressed and a hearing before BOTA must be granted to assess the impact of ACF Industries on ANR Pipeline.
ANR Pipeline involved a question of federal preemption under the 4-R Act. ANR Pipeline did not directly address the question of exemptions. The issue, as framed by the parties under the stipulated facts, did not involve the question of whether the 4-R Act applied to an exemption granted under state law. Instead, ANR Pipeline addressed the broader question of whether the 4-R Act preempted the state statutory taxation scheme. None of the parties to ANR Pipeline addressed the issue of exemptions, nor did we address such an issue. AFC Industries, however, dealt with the precise issue of whether the 4-R Act applied to exemptions from ad valorem taxes granted under state law.
Our holding in ANR Pipeline, because it did not directly address the issue of exemptions, does not provide a basis for the BOTA decision to deny a hearing for the tax years 1992 and 1993 upon the issue of the 80% exemption. BOTA mistakenly applied ANR Pipeline to the exemption issue raised by appellants for the 1992 and 1993 tax years. However, this mistake does not require a remand because the 80% exemptions for 1992 and 1993 were the direct result of a negotiated settlement between litigants in a protracted complex civil action. We conclude, consistent with our analysis below, that the basis for such exemptions was not discriminatory.
The contention that the consent decrees are without any basis in federal law and, therefore, result in discriminatory treatment of CIG and ANR, fails to take into consideration the nature of the consent decrees. In the consent decrees for the years in question, the railroads and the DPV agreed that the named- railroads would be granted an 80% exemption for their personal property taxes. This provision was incoiporated at the insistence of the named railroads because 80% of the total aggregate, commercial and industrial personal property in the state was tax exempt and the named railroads felt that this was discriminatory and contrary to the 4-R Act, which mandates that railroads be taxed at a rate no greater than that which applies to commercial and industrial property. As pointed out by the DPV in its brief, at the time the 1992 and 1993 consent decrees were entered into, every court that had addressed the issue had held that state property tax exemptions given to locally assessed commercial and industrial personal property, and not given to state assessed railroads, violated subsection (b)(4) of the 4-R Act. However, under the terms of the consent decrees, the remaining railroad personal property was taxed at the public utility rate of approximately 30% instead of the commercial and industrial rate of 20%. The consent decrees were negotiated settlements between the parties.
We may not ignore the protracted federal litigation between the named railroads and the State through the DPV. We acknowledge that the consent decrees represent negotiated settlements based upon the then-existing state of the law as well as the strengths and weaknesses of the parties to the litigation. While the named railroads were treated differently than other public utilities in Kansas, this difference in treatment was not based upon a purposely designed discriminatory scheme but rather upon the numerous factors involved in the settlement of complex, difficult, and expensive litigation.
The consent decrees applied only to the parties in the litigation. The settlement was arrived at through an assessment of a myriad of options available to the parties. While the granting of the 80% personal property tax exemption may have been based upon the belief that the 4-R Act required it, a belief that may be false in light of the United States Supreme Court’s decision in ACF Industries, the settlement represents a cost-benefit analysis of continued litigation through federal trial and appellate courts, including, possibly, an appeal to the United States Supreme Court and the collection of personal and real property taxes without continued litigation. The settlement of a lawsuit is a complex process, one that the law encourages and one that is dependent upon many factors including the skill and knowledge of the attorneys involved, the present state of the law, the relative strengths and weaknesses of the parties to the litigation, and the financial abilities of the parties.
Given the number of factors involved in such a process, we are not prepared to state that the granting of the 80% personal property tax exemption to the named railroads in protracted federal litigation, as part of a negotiated settlement, discriminated against the CIG and ANR. While it is clear that the named railroads were treated differently, this treatment had nothing to do with discrimination and everything to do with the settlement of a lawsuit.
The tax discrimination issue for the years 1992 and 1993 involved a question of law with no genuine issue of material fact remaining. BOTA was able to address this issue without a hearing. BOTA reached the right result in dismissing the appeals on this issue even though it based its decision upon the wrong grounds, viz., ANR Pipeline. Under these circumstances, we are able to affirm under the principle that a decision which reaches the right result will be upheld even though the tribunal may have, relied upon the wrong ground or assigned erroneous reasons for its decision. See Bank of Kansas v. Davison, 253 Kan. 780, 792, 861 P.2d 806 (1993).
Appellants, nevertheless, contend that BOTA’s refusal to grant a hearing for eitiher the 1992 or 1993 tax appeals denied them due process of law. Appeals to BOTA are governed by K.S.A. 74-2438, which provides that “[ujpon receipt of a timely appeal, the board shall conduct a hearing in accordance with the provisions of the Kansas administrative procedure act. The hearing before the board shall be a de novo hearing unless the parties agree to submit the case on the record made before the director.” The Kansas Administrative Procedure Act sets forth the rules of the formal hearing. It notes that parties may have a prehearing conference and shall, at appropriate stages of the proceeding, give all parties a full opportunity to file pleadings, motions, and objections. K.S.A. 77-516; K.S.A. 77-519. Regarding the hearing itself, K.S.A. 77-523(b) states:
“To the extent necessary for full disclosure of all relevant facts and issues, the presiding officer shall afford to all parties the opportunity to respond, present evidence and argument, conduct cross-examination and submit rebuttal evidence, except as restricted by a limited grant of intervention or by die prehearing order.”
Under these statutes, BOTA is required to hold a hearing. K.S .A. 74-2438 uses the word “shall,” which indicates that a hearing is mandatory. However, K.S.A. 74-2438 states that the hearing is de novo “unless the parties agree to submit the case on the record made before the director.” As a result, parties may waive their right to a de novo hearing by submitting the case to BOTA on the record. Moreover, where the parties to a BOTA appeal have entered into a stipulation concerning all material fact with only questions of law remaining, or where the matters on appeal are questions of law with no genuine material fact questions remaining, BOTA may dispose of the appeal on the record without a hearing.
The sole question raised by appellants in their 1992 appeals was their claim that they were being treated differently for tax purposes than other public utility railroads. Their 1992 appeals referenced their 1990 and 1991 appeals finally disposed of by this court in ANR Pipeline. This tax discrimination claim was the only issue raised by appellants in their 1992 appeals and was one of the issues raised in the 1993 appeals. This issue involved a question of law, with no genuine material fact issue remaining. We affirm BOTA’s dismissal of this issue on appeal without hearing, even though BOTA assigned erroneous reasons for its decision, because the right result was reached.
In addition to the tax discrimination issue, the notices of appeal for 1993 raise other issues which require us to remand to BOTA for further proceedings. The 1993 notices do not reference the earlier tax appeals. The parties did not enter into a stipulation of fact for 1993 as they had done for 1992. The 1993 appeals state only that appellants appeal the decision of the DPV to the extent that they were assessed differently than other public utilities or other entities defined as commercial and industrial businesses. This language is broad enough to encompass their claims that the 1992 Kansas constitutional amendment taxing pipeline inventories violates equal protection, that ad valorem taxation of the intangible personal property of utilities is discriminatory, and that the DPV used an erroneous allocation method that discriminated against them.
In the event of a remand, appellants ask us to resolve two issues which they claim will expedite further proceedings before BOTA. The first issue concerns the effect the United States Supreme Court’s decision in ACF Industries has on our decision in ANR Pipeline. We have addressed this issue above. Appellants also ask this court to determine whether intangible personal property is properly subject to ad valorem tax in Kansas. This issue was never addressed by BOTA because appellants’ 1993 appeals were dismissed without a hearing.
We decline to reach this issue. BOTA is an administrative tribunal established by law to determine controversies relating to assessments of property for ad valorem tax purposes. See Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 342, 492 P.2d 147 (1971), cert. denied 406 U.S. 967 (1972). This issue is within BOTA’s area of expertise, and BOTA should be given a chance to address it. BOTA’s decision denying appellants’ 1992 tax appeals is affirmed. That part of BOTA’s decision regarding disparate tax treatment for the year 1993 is also affirmed. However, the remaining questions raised by appellants for the 1993 tax year are remanded for further proceedings before BOTA.
Affirmed in part, reversed in part, and remanded.
Abbott and Larson , JJ., not participating.
Marvin W. Meyer, Judge Retired, assigned. | [
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|
The opinion of the court was delivered by
McFarland, J.:
This is a breach of contract/breach of fiduciary duty action seeking recovery of funds the defendant law firm deducted from plaintiff’s share of proceeds received from the sale of working interests in oil and gas leases and from suspended oil runs. The district court entered summary judgment in favor of the plaintiff in the amount of $39,104.89, and the defendant law firm appeals therefrom.
The action herein is a spin-off of the parent action reported in its first appearance before our court as Gillespie v. Seymour, 250 Kan. 123, 823 P.2d 782 (1992). A brief discussion of Seymour is necessary to an understanding of the action and issues before us. Seymour, commenced in 1987, was a massive take-no-prisoners, intra-family fight over a family trust’s investments in the oil and gas business through Arrowhead Petroleum, Inc. (Arrowhead) (also a defendant in the action). In September 1990, judgment was entered in favor of the plaintiffs in Seymour of over $4,000,000 actual damages and over $4,000,000 in punitive damages. The Seymour defendants appealed, and shortly thereafter Arrowhead filed for bankruptcy.
While Seymour was pending, Arrowhead continued to operate certain oil and gas leases in which Warren Brown Gillespie (one of the two Seymour plaintiffs) owned working interests. The opportunity to sell these working interests arose. It was agreed among all having ownership interests that this sale should be pursued. Gillespie was represented by Jerry D. Bogle of Young, Bogle, McCausland, Wells & Clark, P.A. All defendants in Seymour, including Arrowhead, were represented by Robert Martin of Martin, Pringle, Oliver, Wallace & Swartz (Martin-Pringle).
Martin-Pringle handled the sale of the working interests, including those belonging to Gillespie. Correspondence from those involved in the purchase went to Martin-Pringle as the proper contact for the sellers. There was no direct contact between Gillespie and Martin-Pringle relative to the sale. Communication was through Bogle, Gillespie’s attorney. While the Arrowhead bankruptcy and Seymour appeal were pending, the sale and suspended oil , run proceeds that are the subject of the present controversy were received by Martin-Pringle as the sellers’ representative and placed in its trust account.
Martin-Pringle calculated the share therein that each working interest owner had in the proceeds and deducted the portion of sale fees and expenses attributable to each. There is no quarrel in this action with these deductions. Martin-Pringle advised Bogle that, in addition, it intended to deduct certain unpaid operating expenses from the proceeds. These unpaid operating expenses, in the amount of $39,104.89, had been part of the Seymour litigation, and the trial court therein had allowed Arrowhead’s claim for that amount but only as “a credit against plaintiffs’ judgment for recoveiy of money herein.” Bogle wrote Martin-Pringle, stating that it could not properly make such a deduction as the same could be satisfied only as credit against the Seymour judgment against Arrowhead. Martin-Pringle proceeded with the deduction. The money went to Arrowhead, where it became an asset in Arrowhead’s bankruptcy proceeding.
This action was filed against Martin-Pringle to recover the $39,104.89 so deducted. Both parties filed motions for summary judgment and extensive statements of uncontroverted facts. The district court incorporated many of these uncontroverted statements of fact into its memorandum decision. The district court then held:
“CONCLUSIONS OF LAW
“From the foregoing uncontroverted facts, together with the statements of counsel at the hearing on this motion, both parties acknowledge that:
“1. Martin Pringle agreed to collect the proceeds from the sale and from suspended oil runs from Plaintiff’s working interests.
“2. Martin Pringle was authorized to deduct sale expenses and fees, as well as unpaid operating expenses from die proceeds received.
“3. Martin Pringle was to pay the balance of the proceeds received to the plaintiff.
“From these acknowledged facts, the Court finds, as a matter of law, the relationship between the parties was that of agency. An agency ‘is a contract by which one of the parties confides to the other the management of some business to be transacted in his name, or on his account, and by which the other assumes to do the business and to render an account of it.’ Barbara Oil Co. v. Kansas Gas Supply Corp., 250 Kan. 438 at 446, (1992). The determination of what constitutes agency and whether there is any competent evidence reasonably tending to prove its existence is a question of law. However, the weight to be given evidence and tire resolution of conflicts therein are functions of the trier of fact. Henderson v. Hassur [225 Kan.] at 682 (citations omitted). In this case, there is no genuine issue as to the material facts and no factual dispute to be resolved. Martin Pringle agreed to assume the responsibility of collecting revenue, deducting expenses, and paying to plaintiff the amount to which he was lawfully entitled. An agency relationship is a fiduciary one. Kline v. Orebaugh, 214 Kan. 207, 210 (1974). In transactions affecting the subject matter of the agency, it is the duty of the agent to act in good faith and with loyalty to further advance the interests of the principal. Henderson v. Hassur, 225 Kan. 678, 687 (1979). As a matter of law, Martin Pringle owed a fiduciary duty (albeit a limited one) to plaintiff. That duty was to pay to plaintiff the full amount of his proceeds to which he was entitled.
“The disagreement between the parties arises over whether or not the [$39,104.89] in operating expenses (which were part of the judgment in 87 C 4691) were deductible as unpaid operating expenses. Plaintiff expressly objected to Martin Pringle’s proposed deduction of the $39,104.89 as operating expenses since the Court, in 87 C 4691, specifically provided that such expenses were ‘allowed as a credit against plaintiffs’judgment for recovery of money.’ The central issue to be resolved in this Summary Judgment Motion is whether the $39,104.89 was properly deductible as unpaid operating expenses.
“The Court finds such amount was not properly deducted from plaintiff’s funds. The trial court in 87 C 4691, in the exercise of its inherent equitable powers, determined the manner in which Arrowhead could recover its claim for unpaid operating expenses. Absent an appeal from the trial court ruling, Arrowhead was compelled to accept tire Court’s order as to the manner in which their claim is to be satisfied. The $39,104.89 was, by operation of law, satisfied and paid in full by way of credit because that was the specific order of the Court. The Trial Court did not grant a collectible money judgment in favor of Arrowhead, nor did it give Arrowhead any option as to the manner in which it could recover its unpaid operating expenses.
“Martin Pringle asserts that the filing of bankruptcy by Arrowhead or the pendency of the State Court appeal renders the trial court findings to be without force and effect. This Court rejects both assertions. The trial court’s ruling with respect to operating expenses was not altered in any fashion by the State Court appeal. The Kansas Supreme Court does mention the operating expenses in its initial opinion at 250 Kan. 128. There, the Court sets forth the amount of Plaintiff’s judgment and notes ‘there were some allowances involving some billings among Gillespie’s Estate . . . and Arrowhead.’ This reference is consistent with the language of the original journal entry that allowed the expenses as a credit, and not as an independent money judgment.
“Similarly, nothing in the bankruptcy affected the nature or merits of Plaintiff’s or Arrowhead’s respective claims. The trial court judgment in 87 C 4691 was not vacated, voided or altered in any fashion except that Plaintiff was prevented from collecting its judgment. This in no way causes the ‘credit’ for unpaid operating expenses to become a separate money judgment which Arrowhead was empowered to collect. Likewise, the manner in which Arrowhead listed such claim on its bankruptcy schedules does not alter the nature of the trial court judgment. Arrowhead could have listed its claim as having a value of one million dollars; such a listing does not in any way create or validate the claim, nor does it effect a change to the State court judgment.
“The upshot of the foregoing discussion is that Arrowhead’s claim for $39,104.89 in operating expenses was satisfied in 87 C 4691. At the conclusion of the case, Arrowhead had a legal entitlement to a credit against plaintiff’s judgment but it no longer had a claim for unpaid operating expenses. Consequently, Martin Pringle had no authority to withhold the sum from Gillespie’s proceeds. It is the duty of an agent to obey all reasonable instructions and directions in regard to the service he has contracted to perform and to adhere faithfully to them in all cases where they ought properly to be applied. Where the instructions are clear, precise, and imperative, they should be followed strictly and exactly, and a violation of definite instructions cannot be excused by a custom or usage in the business and makes the agent liable for loss resulting therefrom. See Theis v. duPont, Glore Forgan, Inc., 212 Kan. 301, 307 (1973) (other citations omitted); 3 Am Jur 2d Agency, Sections 218 and 222 (1986).
“In the instant case, the directions to Martin Pringle were reasonable and clear. They were authorized to collect tire proceeds, deduct allowable expenses, and disburse the balance to the various interest owners. Each interest owner was to receive the funds to which they were entitled and each proportionately shared in paying Martin Pringle’s fee to handle the deal. Admittedly, Martin Pringle was in a difficult position. It had an attorney/client relationship with Arrowhead, yet it agreed, with the knowledge of all parties, to act in the additional role as agent for all the working interest holders. In its role as tire party responsible for the collection, deduction, and disbursement of funds, Martin Pringle was an agent to all parties involved. It did not have the right to direct to its client, Arrowhead, any funds to which they were not entitled. Its duty was to ensure that each interest holder received the sum to which it was entitled and to properly accomit for the funds received.
“Martin Pringle had a duty to pay to Gillespie those funds to which he was lawfully entitled, and they did not do so. Gillespie was entitled to the additional sum of $39,104.89, and Martin Pringle, as a limited agent and fiduciary, is liable for not paying said sum to Gillespie.
“Plaintiff’s summary judgment motion is sustained; Defendant’s motion is overruled.”
In Knudsen v. Kansas Gas & Electric Co., 248 Kan. 469, 483, 807 P.2d 71 (1991), we stated the appellate scope of review of summary judgments as follows:
“An appellate court is required to read the record in the fight most favorable to the party against whom summary judgment was entered. The appellate court takes the party’s allegations as true, and it gives him the benefit of the doubt when his assertions conflict with those of the movant. Factual inferences tending to show triable issues are to be considered in the fight most favorable to the existence of those issues. If there is a reasonable doubt as to the existence of fact, a motion for summary judgment will be denied. Moreover, pleadings and documentary evidence must be given a liberal construction in favor of the party against whom the motion is directed. Ruebke v. Globe Communications Corp., 241 Kan. [595, 602, 738 P.2d 1246 (1987)].
“Summary judgment may be granted when the evidence shows no liability as a matter of law and where the central facts are not in dispute. Hein v. Lacy, 228 Kan. 249, 256, 616 P.2d 277 (1980). When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. K.S.A. 1990 Supp. 60-256(e). In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. An issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. If tire disputed fact could not affect the judgment, it does not present a genuine issue of material fact. Miller v. Foulston, Siefkin, Powers & Eberhardt, 246 Kan. 450, Syl. ¶ 2, 790 P.2d 404 (1990).’’
For its first issue, Martin-Pringle contends the district court erred in concluding that Martin-Pringle had breached its fiduciary duty to pay to Gillespie those funds to which he was lawfully entitled.' Put another way, Martin-Pringle contends the district court erred in holding the $39,104.89 was wrongfully withheld and thus a violation of Martin-Pringle’s fiduciary duty. It should be noted that, on appeal, Martin-Pringle is not challenging the district court’s conclusion that the law firm acted as agent for Gillespie in the sale and owed him a fiduciary duty. Indeed, such a position would be contrary to the uncontroverted facts herein.
Rather, Martin-Pringle, in essence, contends the district court erred in considering the terms of the Seymour judgment in determining whether or not Martin-Pringle had breached its fiduciary duty to Gillespie. The law firm contends its fiduciary duty is limited to the terms of the instruments involved in the operation and sale of the working interests. Martin-Pringle states its position in its brief as follows:
“Pursuant to the Operating Agreement entered into between Gillespie’s predecessor in interest and Arrowhead on September 16, 1985, Martin, Pringle withheld $39,104.89, the amount in controversy. . . . Paragraph five of the Operating Agreement vests Arrowhead, the operator, with authority to withhold proceeds from the sale of oil and gas production until all operating expenses are paid. This Operating Agreement directly relates to the working interests at issue in the present case. Therefore, the proceeds from die sale of oil produced were lawfully withheld in favor of Arrowhead under the terms of tiiis Operating Agreement. . . .
“Martin, Pringle fully complied with the terms of the Transfer Orders for Koch Oil Company and the Division Orders for Texaco Oil Company. On November 16, 1990, Mann [a Martin-Pringle law firm member] wrote Bogle enclosing Transfer Orders from Koch Oil Company dated October 1, 1990. The Texaco Oil proceeds were to be handled in the same manner as the Koch oil proceeds pursuant to the letter sent by Mann to Texaco, dated November 19, 1990, of which Bogle received a copy.
“Exhibit ‘A’ to the Transfer Orders, which is incorporated by reference to the Transfer Order, states:
‘All funds being held by the purchaser for the individuals or entities named herein shall be paid to Terry Mann, 300 Page Court, 220 W. Douglas, Wichita, Kansas, 67202. From the funds so disbursed, Terry Mann shall deduct each owner’s share of the operating expenses, and other costs, expenses and taxes incurred by or paid by Arrowhead Petroleum, Inc., relating to each owner’s interest in the oil and gas properties from each owner’s share of the funds of each of the oil and gas properties. She shall then disburse the remaining funds of each owner to each such owner.’
“Pursuant to the Transfer Orders, Martin, Pringle was to gather all unpaid oil runs, deduct operating expenses and other costs, expenses and taxes incurred or paid by Arrowhead, and then disburse the remaining funds to each owner. Martin, Pringle fulfilled these duties precisely as set forth in tlie terms of the Transfer Order. Further, these are the same terms which were set forth in the November 16, 1990, letter hand-delivered to Gillespie’s counsel, Jerry Bogle. . . . These terms are further reiterated in the September 1991, letter hand-delivered to Bogle. . . .
“The uncontroverted facts establish that Martin,Pringle obeyed all reasonable instructions and directions with regard to the service it agreed to perform on Gillespie’s behalf. The instructions Martin, Pringle were to follow were clear and precise, and the same were followed strictly and exactly. In addition, Martin, Pringle treated Gillespie exactly like the other working interest owners Arrowhead was serving.”
The difficulty with this position is that the operating expenses at issue herein were not current, unpaid ordinary operating expenses. Martin-Pringle, in its representation of Arrowhead in Seymour, had fully litigated Arrowhead’s claim against Gillespie for payment of this amount. The district court, in Seymour, found that such claim was valid but allowed it only as a credit against Gillespie’s judgment against Arrowhead. Martin-Pringle was fully familiar with the Seymour judgment and was representing the appellants in their pending appeal thereof. By the tenns of the Seymour judgment, Arrowhead had no legal right to be reimbursed the $39,104.89 from the sale of Gillespie’s working interests.
For its next issue, Martin-Pringle contends that the district court erred in holding that Arrowhead’s claim for operating expenses was not altered by the Seymour appeal. Specifically, Martin-Pringle contends:
“By the express terms of the court’s ruling in Case No. 87 C 4691 [Seymour], Arrowhead’s claim for unpaid operating expenses was to be a credit against Gillespie’s judgment for recovery of money. Thus, Arrowhead’s ability to offset its claim for unpaid operating expenses was contingent upon the Kansas Supreme Court’s affirmation of the lower court’s monetary award in Gillespie’s favor. Ac cordingly, the trial court was in error in concluding that Martin, Pringle breached its fiduciary duty by withholding the unpaid operating expenses on September 3, 1991, more than three months prior to the Kansas Supreme Court’s ruling.
“ ‘[A] party must be the absolute and beneficial owner of a judgment before he can have it offset a judgment against him.’ Mohr v. State Bank of Stanley, 244 Kan. 555, 565, 770 P.2d 466 (1989), Hermon v. Miller, 17 Kan. 328, 332 (1876). At the time Mann disbursed the net proceeds, Gillespie was not the absolute and beneficial owner of a judgment against Arrowhead to which Arrowhead’s claim for operating expenses could be offset against.
“On September 7, 1990, the trial court in Case No. 87 C 4691 ordered, ‘The claim by Arrowhead Petroleum, Inc., for operating expenses in the amount of $32,404.00, plus accruals to the date of this judgment, shall be allowed as a credit against plaintiff’s judgment for recovery of money herein.’ . . . On September 3, 1991, Mann disbursed the net proceeds from the sale of working interests and suspended oil production to Bogle, Gillespie’s attorney. At that time, Gillespie’s judgment against Arrowhead for an amount in excess of $4 million was on appeal, and thus not a final judgment. The Kansas Supreme Court did not rule on the state court appeal until December 17,1991. Its decision was subsequent to Terry Mann’s disbursement of the relevant net proceeds to Gillespie.
“Therefore, on September 7,1991, Gillespie was not die absolute and beneficial owner of the approximately $4 million judgment against Arrowhead to which a credit could be appropriately applied as directed by the trial court. As Martin, Pringle could not have reasonably given effect to the state court ruling pending its appeal, the trial court could not have reasonably concluded from the facts before it that Martin, Pringle breached its fiduciary duty to Gillespie by withholding the $39,104.89 in unpaid operating expenses.”
There is no merit in this issue. No “set-off” is involved herein. In Seymour, Arrowhead had no judgment it could ever collect. It could only receive credit against Gillespie’s judgment against it. There is no question herein of setting off one judgment against another. Arrowhead and Gillespie fully litigated Arrowhead’s claim of $39,104.89 in Seymour. The fact that the Seymour case was on appeal when the proceeds in controversy herein were ready for distribution did not wipe the slate clean as far as distribution of the proceeds herein was concerned. Had Martin-Pringle, as a fiduciary holding proceeds it considered subject to conflicting claims, desired to protect itself, it could have held the disputed funds in a separate account or taken other action to hold the funds separate pending the outcome of the Seymour appeal. Instead, over the objection of Gillespie, Martin-Pringle deducted the mon ies from Gillespie’s share and credited Arrowhead with the funds. As Arrowhead was in bankruptcy, the funds disappeared into the maw of the bankruptcy.
For its next issue, Martin-Pringle contends the district court erred in its analysis of the effect of the Arrowhead bankruptcy on the cause of action herein. . Martin-Pringle argues that as it was counsel in the bankruptcy for Arrowhead as a debtor in possession, it had a duty to marshal Arrowhead’s assets. This argument only has merit if the $39,104.89 deducted from Gillespie’s share was an Arrowhead asset. The money so deducted was not an Arrowhead asset, and the district court did not err in so holding.
All other issues asserted are considered and held to be without merit although not specifically discussed herein.
The district court’s memorandum opinion is sound and well reasoned. We have only one small disagreement therewith. The district court stated the $39,104.89 claim of Arrowhead had been “satisfied and paid in full by way of credit” in Seymour. The judgment of the court in that case was on appeal. This provision was a part of that judgment. It is something of a misnomer to state that Arrowhead’s claim had been satisfied and paid in full in Seymour at the time Martin-Pringle made the deduction for the same amount. This does not in any way alter the correctness of the district court’s determination that Martin-Pringle improperly made said deduction and is liable therefor.
We find no error or abuse of discretion in the district court’s entry of summary judgment herein in favor of the plaintiff.
The judgment is affirmed. | [
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|
Opinion by
Clogston, C.:
This was an action in ejectment, brought by the plaintiff in error to recover possession of two lots in the city of Leavenworth. The findings of fact show that sometime in 1877 or 1878, plaintiff took possession of the lots and leased the same, and that the léssee inclosed the premises with a fence, and occupied them about three years. At this time plaintiff had two deeds issued by the city of Leavenworth for city taxes; under these claims of title he took and held possession of the property. The defendant, in 1883, entered upon the premises and erected a small house, and has retained possession ever since. This right of possession is the only claim the defendant asserts to the property. Without passing upon the questions of what interest plaintiff possessed by virtue of his quitclaim deed from Higinbotham, and also the effect of the quitclaim deed from Higinbotham to Leavenworth county, we yet hold that plaintiff’s possession under a claim and color of title was a sufficient interest and title upon which to maintain an action in ejectment; and this title, being paramount to the title or interest of the defendant, is sufficient to maintain a judgment in favor of the plaintiff for the possession of the premises, unless it is found that at the time the defendant entered into possession the plaintiff had abandoned his possession or right of property. (Gilmore v. Norton, 10 Kas. 491; Duffey v. Rafferty, 15 id. 1; Simpson v. Boring, 16 id. 248; Mooney v. Olsen, 21 id. 697; Hollenback v. Ess, 31 id. 88.) The findings of fact on that point show that plaintiff went into possession in 1877 or 1878, and that the premises were fenced. The fencing of the property was an improvement of a character such as would doubtless remain after the three years’ possession of the lessee. It would be a part of the realty, aud would, in the absence of other showing, become the property of the plaintiff. When it is once shown that property has been improved, and that the character of the improvements is of a lasting nature, such as would survive for a period of years, that improved condition will be presumed to have continued until the contrary is shown. If this be true, then, in the absence of any showing on the part of the defendant that at the time he entered into possession of the property it was abandoned, or that the improvements had been removed, we must hold that at the time the defendant entered upon the property it was in like improved condition as described by the plaintiff in 1877 or 1878. This being true, the defendant had uo right to or interest in the property, and his possession being wrongful, plaintiff is entitled to a iudgment for its possession.
It is therefore recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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|
Opinion by
Clogston, C.:
Where a proceeding is brought to amerce a sheriff for failure to return an execution to the court where the judgment upon which the execution was issued was rendered, such court has jurisdiction and may compel a return to its orders and executions, and punish by amercement for disobedience. (Fay v. Edmiston, 28 Kas. 105; Ghost v. Hill, 11 Neb. 472; McNee v. Sewell, 14 id. 532.)
The only remaining question is, was there such a variance between the execution and the judgment upon which it was issued as will excuse the sheriff, or save him from amercement ? The execution recited that a judgment was rendered against said transportation company for $1,000, and $22.65 costs, and $5 additional costs since the rendition of said judgment; and to support this execution plaintiff offered in evidence the judgment upon which it was issued, which judgment is as follows:
“It is therefore considered, ordered and adjudged by the court, that said plaintiff do have and recover of and from said defendant the sum of $1,000, so found due as aforesaid by the verdict of a jury in this case, together with costs of suit, taxed at $-
To the introduction of this judgment the defendant objected, for the reason that there was a variance between the judgment and the recitals in the execution; which objection was overruled, and defendant excepted. If this variance will not excuse the sheriff for not having returned the execution within sixty days, as required by law, then the judgment of the court must be affirmed; for the law gives no discretion to the court, and the defendant has shown no other reason why the execution was not returned that would excuse him. The statute under which this motion was made is of a penal character, and like all other penal proceedings, strict compliance with the requirements of law must be observed in its enforcement; and when a person desires to avail himself of this proceeding he cannot complain if he is required to strictly conform to the letter of the law, for when it is enforced it works in many instances great hardship to the officer who, while being negligent in doing some duty required of him, yet out of that negligence no injury has resulted to others; and while as before stated, the court has no discretion in enforcing such proceedings, yet it ought to carefully guard against allowing amercements except in cases where the proceedings have been regularly and strictly followed. In this case the record further shows that the plaintiff suffered no loss by reason of the failure to return the execution, as it was clearly shown at the rendition of .the judgment that the judgment debtor was insolvent.
In Duncan v. Drakely, 10 Ohio, 46, the court said:
“In proceedings under the statute authorizing the amercement on an officer, great strictness is required, and he who would avail himself of the remedy therein provided must bring himself both within the letter and spirit of the law. It is right that it should be so, because the remedy is summary, and in its consequences highly penal. There is no trial by jury, and little if any discretion left to the court.”
So also in Moore v. McClief, 16 Ohio St. 50, the court said:
“The plaintiff’s right to demand a judgment of amercement in this case can rest on no equitable ground, for the neglect of the official duty of which she complains has done her no injury. The execution debtor was wholly insolvent when the judgment was recovered against him, and has continued to be so ever since. Her rights then are purely statutory; and if she makes a clear case for amercement under the statute, it is no defense against her claim that she has not been damnified. The statute under which she proceeded was of a penal character; it affords a summary remedy, without trial by jury, for official delinquency; and without regard to the amount of damages resulting in fact from such delinquency, it leaves no discretion to the court as to the amount-of judgment to be rendered against the delinquent officer.” (See also Bond v. Weber, 17 Kas. 410.)
Applying these rules to this case, we find that if the sheriff is to be amerced it must be for the amount named in the execution, which included $22.65 more than that set out in the judgment. Plaintiff insists that he has done all that was necessary for him to do; that the law enjoined and made it a part of the duty of the clerk of the court to tax the costs and insert them in the judgment. Section 593a of the code of civil procedure is as follows:
“The several clerks of the district courts shall tax the costs in each case, and insert the same in their respective judgments, subject to retaxation by the court, on motion of any person interested.”
This statute clearly makes it the - duty of the clerk of the court to tax the costs, and when so taxed to insert them in the judgment; and this ought to have been done before the execution issued. No presumption can be entertained in this case. The plaintiff must bring himself clearly within the rules as heretofore suggested. It was his right to have the costs included, and if he desired to enforce a penalty he ought to have seen that the execution was properly issued for the amount named in the judgment. He could have had the judgment corrected and the costs inserted, and then his execution would have been properly issued on the judgment; and because the clerk failed to do his duty will not excuse the plaintiff from proceeding to have the costs taxed. The clerk, like the sheriff, failed to do what the law made it his duty to do, but this failure of the clerk will not authorize the plaintiff to amerce the sheriff, and will not warrant the court to presume that the costs were properly taxed. If that were true, then a sheriff might be amerced upon an execution issued where no judgment had been rendered, simply because the sheriff refused to return the execution. The law would make it his duty to return the execution in that case, although no judgment had been rendered, as it would if issued upon a proper judgment. But where a plaintiff is seeking to amerce a sheriff he must show a valid judgment, and the execution must conform strictly to that judgment. If property had been found subject to seizure on this execution and the sheriff had levied thereon and collected the judgment, he would have collected $22.65 more than any judgment had been rendered for. This execution with this excess therein was sufficient to excuse the sheriff for not sooner returning the execution.
We are therefore of the opinion that the judgment of the court below was wrong, and we recommend that the cause be reversed, and remanded to the court below with an order to render judgment for the defendant below for costs.
By the Court: It is so ordered.
All the Justices concurring. | [
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|
Opinion by
Holt, C.:
The plaintiff in error complains that the petition does not state facts sufficient to constitute .a cause of action. It alleges that the Wichita & Southwestern Company is a corporation, but omits the word “railroad,” although subsequently the petition alludes to it as the said Wichita & Southwestern Railroad Company. The omission was evidently not brought to the notice of the trial court; probably not noticed by the attorney for the defendant during the trial, as, in the first instruction he asked the court to give, the fact of the organization of both the defendant and the Wichita & Southwestern Railroad Company. If such omission ever rendered the petition materially defective, such defect has been waived.
He makes the further objection, that the Wichita & Southwestern Railroad Company was not alleged to be a continuation and extension of the A.T. & S. F. Rid. Co. The petition states that the defendant did lease the road-bed, depot grounds, side tracks, and rolling stock of the Wichita & Southwestern Railroad Company, and took possession of and operated the same. We cannot # r # presume, in the absence of any proof or allegation, after a trial and judgment for plaintiff, that the defendant had entered into an agreement that was not allowed or authorized by statute. (A. T. & S. F. Rld. Co. v. Davis, 34 Kas. 209.)
Defendant further objects, that it is not shown that one T. J. Peter, a “ general manager ” of the defendant, had authority to give a pass to plaintiff. The allegation of the petition not only avers that he was the general manager of the defendant, but that he was an agent and general manager of the Wichita & Southwestern Railroad Company in the matters and things hereinafter set out: referring to the contract giving the pass to plaintiff; and that said pass was promised and made by said Peter for and in behalf of said deJ fendant. We believe this is a sufficient allegation of the authority of Peter, especially after a verdict and judgment thereon in favor of plaintiff, when no evidence is brought here for our consideration. The findings also sustain the theory that Peter had authority on behalf of the defendant to promise and give such pass to the plaintiff.
It is objected further, that as the promise to give such pass was not in writing and not to be performed within one year, it was void under § 6, chapter 43, Compiled Laws of 1879, which provides:
“No action shall be brought whereby to charge a party . . . upon any contract for the sale of lands, tenements, hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized.”
It is contended that because this pass was to be given to plaintiff during his lifetime, to be issued annually, it could not be performed within one year, and therefore that it was void under the statute. Such is not the law. Where the contract is such that the whole may be performed .. i , i • ,, ,. within a year, and there is no express stipulation to the contrary, the statute does not apply. The contract was for the lifetime of the plaintiff; his death would terminate the contract, however soon after the making of such contract that might have happened. His death might have occurred within one year after making such contract, and in that event it would have been fully performed. The authorities are nearly uniform on this point. It has been held that a contract to support one during life; to work for a person as long as he lives; to maintain a child at the defendant’s request, to continue so long as the defendant shall think proper, are not within the statute, on the theory that life is an uncertain event which might be determined within the year. (Wood on Frauds, §270; Hill v. Jamieson, 16 Ind. 125; Hutchinson v. Hutchinson, 46 Me. 154; Doyle v. Dixon, 97 Mass. 208.)
This contract was also performed within one year upon the part of plaintiff, and the defendant cannot claim protection under the statute of frauds; its protection extends to executory contracts, and does not apply to contracts that have been executed by one party. Mr. Wood, in his treatise on the Statute of Frauds, in §279, says:
“In England and most of the states of this country it is held that the statute only applies to contracts which are not to be performed by either side within a year, and therefore where a contract has been completely performed on one side within the year the case will not come within the statute.” (McClellan v. Sanford, 26 Wis. 595; Curtis v. Sage, 35 Ill. 22; Berry v. Doremus, 30 N. J. L. 403; Haugh v. Blythe, Ex’r, 20 Ind. 24.)
The defendant further says that plaintiff cannot recover upon a verbal contract for the sale of lands. This was not a contract within the statute of frauds. It was not a contract for the sale of lands — it was the sale itself. The contract was perfected by giving the deed. This action is for damages sustained by plaintiff because the defendant refused to give him his pass for life over its road. The pass was promised to be given as the price of the land deeded. There is u0 provjsion 0f our statute which precludes a recovery for the price of lands actually conveyed, even though the agreement concerning the price be oral. (Reed on Frauds, § 658; Hodges v. Green, 28 Vt. 358; Bowen v. Bell, 20 Johns. 338; Wilkenson v. Scott, 17 Mass. 249; Holland v. Hoyt, 14 Mich. 238; Tripp v. Bishop, 56 Pa. St. 424; Tuthill v. Roberts, 22 Hun, 304.)
Our statute is unlike the British statute, w'hich declares:
“No action shall be brought whereby to charge any person upon any contract or sale of lands, tenements, hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some note or memorandum thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”
The omission in our statute of the provision concerning the sale of lands was no accident. It has its signification. It in effect exempts the sale of lands and retains only the contract for the sale of lands, not in writing, within the purview of the statute. In this respect our law is similar to the laws of most of the other states.
The case of Becker v. Mason, 30 Kas. 697, does not support the theory of the defendant, nor is it in conflict with the views herein expressed. That action was brought to enforce a parol contract for the sale of land. In this action the sale had been made and the deed delivered. Mr. Justice Valentine, after citing § 6, says:
“ It will be noticed that the statute above quoted includes all contracts ‘for the sale of lands;’ all contracts for ‘any interest therein,’ and all conti’acts ‘concerning’ lands, and it is the contract upon which the action is to be brought ‘ to charge a party,’ and not something else; and it is the contract, or some note or memorandum thereof, upon which ‘the party [is] to be charged,’ and not something else. It is not the sale, or the purchase, or the transfer, or a release, or some other special thing affecting or ‘concerning’ the real estate upon which the action is to be brought; nor is it any one of these special things upon which ‘the party [is] to be charged.’”
Objection is made to the instruction which authorized the jury to fix the damages for the refusal to give the pass over the defendant’s road at the time it was refused, rather than at the date of the making of the contract, it becoming important because the defendant had extended its lines in the meantime. In the absence of any evidence before us, and under the pleadings and findings, we cannot say that there was error in fixing the time at the date of refusing to give the pass. At the time the contract was made, the plaintiff was not living on the line of the defendant’s road. His home was beyond its line, although it afterward extended to and through the city in which he lived, and it would be a reasonable inference, warranted by the pleadings and findings, that he contracted for .a pass over the road which might be completed to the city in which he resided.
The defendant claims that certain instructions given by the court are erroneous, among otheis the one numbered five:
“5. If the said T. J. Peter, for and on behalf of the defendant, and at the time of making said contract, did not have authority to make the same, and the defendant, after said Peter ceased to act for it, issued to the plaintiff one or more .annual passes on account of said contract, the defendant would be bound by the original contract made by Peter, as such would be a ratification of the original contract by the defendant.”
Its objection to it is, that it provides that a principal might be held to ratify the act of his agent without full knowledge •on his part of all the circumstances under which the contract was entered into. The principle contended for by the defendant is probably correct. It is admitted, however, by the pleadings, that the defendant had been issuing for several years an .annual pass to plaintiff over its road, with the indorsement ■on the back thereof, “ On account of depot grounds.” It had taken possession of the land in question under the agent who had made the contract, and had remained in-possession of the .same for years. It can therefore be presumed defendant had knowledge of all the circumstances of the contract between its .-agent, Peter, and plaintiff, or at least full knowledge of such facts as would have led by a proper inquiry to a complete understanding of the conditions, consideration, and all the elements constituting the contract. . Under these averments and findings we cannot perceive how this instruction, even though it did not state the law correctly as an abstract proposition, could have prejudiced the defendant. Further, we think the-findings of the jury concerning the authority given Peter to act ^01’ them in the first place is sufficient to au^orizé a judgment, without any reference to any act that might be deemed to have been a ratification. Where the authority of an agent to make a contract originally is shown, the question of ratification is eliminated. It has no-place in determining the rights of the parties. We have been compelled to construe the pleadings and findings of fact to-sustain and uphold the judgment, rather than to overthrow it,, and we therefore recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. • | [
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Opinion by
Clogston, C.:
The facts are substantially admitted, and upon these facts the plaintiff contends that the board of equalization had no authority or right to raise the assessment of Alma township; second, that plaintiff was entitled to a credit on his assessment of the amount of the incumbrance on the neat cattle; third, that the poor-fund tax of two mills and also the three-mill county road tax levied on the said assessment are both illegal. Section 74, ch. 107, of the tax law, provides for a board of equalization and prescribes its duties, which are that it shall meet on the first Monday in June, and “ proceed to fairly and impartially equalize the valuation of personal property.” There is no provision in said article for the introduction of evidence to the board, or for any hearing. The duty is upon the county commissioners, as a board, to equalize these taxes. It is true the board might proceed — and it would be very proper for it to do so — to hear evidence so as to arrive at an impartial assessment; but the board is not obliged to do so. Counties are divided into commissioner districts, and the board is supposed to know the value of property in the county; and when the commissioners meet as a board and find that some townships have been assessed at a higher rate than others, it is the duty of the board, under this law, to equalize these assessments. Of course when it comes to individual assessments, on the complaint of an individual, the board might also do this without proof, or might do it after hearing and proof.
The second complaint urged presents a more difficult problem for solution. The tax law is based upon what is supposed to be an equitable adjustment, so that in the end property may bear its just proportion of taxes. "While this is the object, yet there must of necessity be many cases where injustice is done. Property ought not to bear a double assessment; it ought to appear only once in the same year on the tax-rolls, in any form. Where property, as is this case, is held by a mortgagor in possession, both the property so incumbered and the indebtedness appear upon the tax-rolls, and this is one of the cases where the tax law seems to be unjust; but as long as property is assessed and taxes collected thereon, there must be some general rules for the government of such proceedings. If only the equity of the party holding the property should be taxed, it would lead to endless trouble, expense and litigation. The property may be traced and all put upon the tax-roll, but when it comes to the indebtedness thereon it would be almost impossible to reach and ascertain its amount and extent. If it is sought to include liens and indebtedness on property, then it must include those that are not of record as well as those that are. The plaintiff was the owner of this property; he was in possession of it; and while he had created a lien thereon, which for the purpose of a lien transferred the legal title to the mortgagee, yet this property, under our rules of taxation, was subject to taxation. While as we said, it seems to work a hardship, yet we think the assessment valid.
Counsel say in their brief that the poor-tax was illegal; yet no reason is assigned why this tax is illegal, and no authorities are cited. Section 35 of ch. 79, Comp. Laws of 1885, gives the county commissioners ample authority to make this levy, and as our attention has not been called to anything in conflict with this section, we must hold that tax valid. The same may also be said of the road tax. Section 21, ch. 89, of the road law, provides that the county commissioners may annually levy a road tax, not exceeding three mills on the dollar. Counsel suggest no reason why this tax is void. Both of these taxes must be upheld, and for the foregoing reasons we recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
This was an action brought by the plaintiff in error against the defendant in error upon two-promissory notes executed by the defendant in favor of Nixon Elliott. Plaintiff alleged that before said notes became due,. Nixon Elliott indorsed and for value transferred said notes to E. J. Elliott, and afterward, and before due, E. J. Elliott indorsed and for value transferred the notes to plaintiff, and that he was the owner and holder thereof. The defendant in an swer alleged, first, a specific denial of all the allegations in plaintiff’s petition, save and except the making and delivery of the notes. As a further defense, defendant alleged that before maturity of said notes, and before the indorsements or transfers thereof j and with the full knowledge of both E. J. Elliott and the plaintiff, defendant paid Nixon Elliott, the payee therein, the full amount of said notes and interest; and as a further defense, the defendant alleged that at the time said notes were executed plaintiff and defendant were partners engaged in the raising and selling of nursery stock; that by the terms of their partnership defendant was to raise the stock upon his farm, and furnish, the same when ready for sale to the plaintiff, who was to sell the same and account to the defendant for one-half of the proceeds; and that by a verbal agreemént plaintiff was to receive from defendant said nursery stock, and as fast as received and sold by him he was to credit defendant with the full amount of one-half of the proceeds on the notes in controversy, until they were fully paid. Defendant further alleged that in pursuance of said agreement and before the notes became due, and before they were transferred or indorsed by said payee, he delivered to Nixon Elliott nursery stock, the one-half of which in value was greatly in excess of the amount due by defendant on said notes, and that Nixon Elliott received said nursery stock under said agreement and sold and appropriated the same to his own use, and has never paid defendant any part of the.proceeds thereof, except in payment of said notes. In reply to this answer plaintiff filed a general denial, and as further reply alleged that said nursery stock belonged to a partnership composed of plaintiff and defendant and one Lewis Williams and one S. E. Maxwell; that said partnership had never been settled and wound up; and that a large portion of the nursery stock so delivered by plaintiff to Nixon Elliott was destroyed by fire, without fault of the said Nixon Elliott.
Plaintiff in error at the trial prepared and requested the court to submit to the jury the following questions of fact:
“1. When were the notes in suit in this ease transferred to E. J. Elliott?
“2. What did E. J. Elliott give or pay Nixon Elliott for the notes sued on in this case ?
“3. When did E. J. Elliott make a trade with Nixon Elliott for the notes sued on in this case?
“4. At the time E. J. Elliott traded with Nixon Elliott for the notes sued on, had she any notice of any kind or character of any defenses to said notes or any part thereof?
“5. If you answer the last question in the affirmative, then you may state particularly what notice she did have, and in what way or manner she acquired such notice?
“ 6. You may state the names of all the persons that owned any interest in the nursery stock delivered by defendant to Nixon Elliott in the years 1879, 1880, 1881, and 1882, and state the interest that each had therein ?”
The court refused to submit said questions to the jury, except those numbered 2 and 6, and this refusal the plaintiff assigns as error. The record does not show what answer the jury returned to the two questions submitted. It is the right of litigants to have submitted to the jury every question of fact upon which the jury, by the issues and evidence, are required to find; and it is the duty of a court to submit such questions upon the request of either party; but this broad rule or right includes only such questions as are competent under the pleadings and evidence, which competency must be determined by the court. In this case, the questions which the court refused to submit assumed that certain facts existed; in other words, they assumed that the notes had been transferred to E. J. Elliott, and their only inquiry was as to when they were transferred. This was assuming as true a fact that was in dispute, and one of the principal questions to be determined in this suit. This question was properly refused. Question No. 2 was submitted. No. 3 was a repetition of the facts set forth in No. 2. If the jury answered the second one — and for the purposes of this inquiry we must presume that they were answered in harmony with the general verdict — and if this be true, then their answer to No. 2 was that E. J. Elliott did not give or pay Nixon Elliott anything for the notes sued on in this case. If this was true, then this was a complete answer to No.'3, because if she gave nothing, then she made no trade for the notes; and it also was a competent answer to No. 4, for if she paid or gave nothing for the notes, then there was no trade as suggested in question No. 4. Question No. 5 depended upon the answer to No. 4. No. 6 was submitted by the court. We see no error in refusing to submit these questions. They were either answered by the questions which were submitted, or they suggested as true, facts which were in dispute and material to the action. This was not competent.
The only other objections urged by the plaintiff in error are, first, that the court improperly instructed the jury; but we have examined the record, and find that there were no exceptions saved to the instructions of the court, and therefore this objection must be disregarded.
As a last objection, the plaintiff insists that the verdict was not sustained by the evidence. This question has been so often presented and so often decided by this court that it requires no argument. Here was a question of fact in dispute. Every question presented by the issues was disputed on one side or the other. Evidence was offered on these questions. It was the duty of the jury to find the facts, and when disputed questions of fact are submitted to the jury their verdict thereon is conclusive.
We see no errors in the record, and therefore recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On September 13, 1873, Mead loaned the Johnsons one thousand dollars for three years with interest at twenty per cent, per annum. For and upon this loan he took from them one note of one thousand dollars due in three years with twelve per cent, per annum interest, payable annually, and also three notes of eighty dollars each, due in one, two and three years respectively, with interest after maturity at twelve per cent, per annum. These three notes were given for the excess of interest over twelve per cent, per annum. In 1878-9 these three notes were taken up on payment of eighty dollars for each. Commencing in 1878, payments were made from time to time and indorsed on the one-thousand-dollar note. On March 26, 1884, Mead wrote a letter to the Johnsons saying that he would take from them only eight per cent, per annum interest after September 13, 1881. He said in the letter: “ Cast all interest of the note at eight per cent, since September 13, 1881.” In computing the amount due on the note and mortgage sued on, the district court computed interest on the one-thousand-dollar note at twelve per cent, per annum from its date to February 9, 1878, that being the date of the payment of the first eighty-dollar note. It then subtracted eighty dollars from the result, and counted interest on the amount remaining from that date to the time when the second eighty-dollar note was paid, and subtracted as before. The same rule was followed with regard to the last eighty-dollar note. From November 3,1879, the date when the last eighty-dollar note was paid, interest was counted on the amount remaining at twelve per cent, per annum to September 13, 1881. From the last-named date to the judgment, May 28, 1885, it was counted at eight per cent, per annum.
The only contention in the case is, as to the rate of interest since September 13, 1881. The district court allowed only eight per cent, per annum; the plaintiff claims the proper rate to be twelve per cent. The statute in force at the time of this transaction, and at the time the judgment was rendered, reads:
“All payments of money or property made by way of usurious interest, or of inducement to contract for more than twelve per cent, per annum, whether made in advance or not, shall be deemed and taken to be payments made on account of the principal and twelve per cent, interest per annum, and the courts shall render judgment for no greater sum than the balance found due after deducting the payments of money or property made as aforesaid.” (Comp. Laws of 1885, ch. 51, § 3.)
Prior to September 13,1881, under this statute, only twelve per cent, interest per annum could be recovered upon the note. If the letter written by Mead on March 26, 1884, to J. R. Johnson can be considered, then the conrt, in accordance with its terms, properly allowed interest at the rate of eight per cent, per annum from September 13, 1881. It is said, however, that the promise to reduce the interest was without consideration, and therefore not binding; hence, that Warren, as administrator, was entitled to recover interest at the rate of twelve per cent. The letter stated that Mead had received Johnson;s letter of the 15th of March, 1884. The contents of the letter of March 15 are not stated. We may assume that the letter of March 26 was an acceptance of its terms, and therefore the final agreement of the parties. This is supported by the following clause of the letter: “Keep this, and claim it at that per cent, if anyone should settle it but me.” The defendants, in their answer, set up the agreement to reduce the interest to eight per cent.; and to this answer the plaintiff filed a general denial only.
It is not stated or alleged that the agreement was induced by fraud, or was without consideration. All agreements in writing import consideration; and, upon the pleadings and findings, we cannot say that the written promise or agreement was without consideration. The court below allowed interest in accordance with the terms of the letter.
In the case of Dudley v. Reynolds, 1 Kas. 285, referred to, the agreement was in parol, not in writing; therefore, in that case, there was no consideration for the promise that the note should draw a rate of interest less than that specified.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This proceeding was brought to reverse a judgment rendered against the Burlington, Kansas & Southwestern Railroad Company in the district court of Decatur county. The record is challenged upon the ground that “the case” was never served; and therefore it is claimed that this court has no power to consider the errors alleged. It appears that the judgment was rendered April 30,1886. Ninety days were given by the trial court to “make a case.” Nothing was said in the order about the time within which “the case” was to be served. (Civil Code, §§ 548, 549.) It does not appear from the record that the case was ever served at any time; and there is nothing presented in the record, or otherwise, to show that service of the case was ever waived. Prior to July 24, 1886, notice was given to the defendant in error at the time when the case would be presented for settlement. It does not appear, however, that the defendant in error or his attorney was present when the case was settled and signed by the district judge, or that there was any waiver of appearance. No amendments to the case were ever suggested, and therefore the validity of the record is successfully challenged, as it fails to show affirmatively the previous steps necessary to the settlement of the case. (Weeks v. Medlr, 18 Kas. 425; M. K. & T. Rly. Co. v. Roach, 18 id. 592; Gimbel v. Turner, 36 id. 679.)
The judgment of the district court will be affirmed. | [
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Opinion by
Simpson, C.:
We shall take notice only of the specific errors complained of in the brief of counsel of plaintiff in error. If there are other errors in the record, they should have been called to the attention of the court here, as well as to that of the trial court. It is contended that among other defenses urged on the trial, the main one was, that the notes had been obtained by Wemyss through false and fraudulent representations, and this was the principal question passed upon by the jury. There was a verdict and a judgment on the notes for $6,594.50 and costs. The court charged the jury upon the question of fraud as a defense to the action as follows:
“ The defendant, to sustain his defense that the notes were procured by the false and fraudulent representations of the plaintiff, must prove:
“First. That the false and fraudulent representations, or some of them, were made as alleged in the second count of the defendant’s answer.
“Fourth. They (such false and fraudulent representations) must have been made by the plaintiff with the intent and for the purpose of inducing the defendant to execute said notes to the plaintiff.
“Fifth. The plaintiff must have known such representations to be false when he made them.
“Sixth. The defendant must have been ignorant of the real facts, and must have relied solely upon such false and fraudulent representations, if any such are shown to have been made by the plaintiff.”
With respect to these, the plaintiff in error says:
“When a contract is sought to be avoided because of false representations made as an inducement to its execution, it is not essential to show that the persons making the representations knew them to be false. ‘ Whoever positively and generally makes a false assertion, as an inducement for another to contract with him, and succeeds on that ground, is guilty of a fraud which vacates the contract. It must be as represented, or it is fraudulent. A man who does so ought to suffer; he must answer for the truth.’ ” (Wiokham v. Grant, 28 Kas. 511.)
The state of facts developed by the evidence preserved in the record, is substantially as follows: The plaintiff in error pleaded fraud and misrepresentation in the inception of the notes; that there was a total failure of consideration; and finally attempted to show that the defendant in error had re lied upon a particular fund for the payment of these notes, and this fund being under his control, and the subject of his creation, he negligently, and from want of business care and knowledge, rendered the property so unproductive that no fund was created out of which to pay the indebtedness. We have very carefully read all the evidence, and must say that there is very little positive evidence, or even trivial circumstances, to support any or all of these alleged defenses. Wemyss advanced the money represented by the notes at a time when the company would have suffered great loss and inconvenience if he had not done so. He advanced it at the suggestion and probably on the request of the president, and it was known to all interested for months before the notes were executed. It is true that he had expressed a hope, possibly a belief, that he might be reimbursed by sales of salt, but there is not a particle of testimony to sustain the contention that he had agreed to look solely to this source for repayment. The instructions complained of were not necessary, in our view, to be given; there was not a state of facts proven that justified them; there was no substantial defense made to the payment of the notes. A cursory reading of the evidence of both Wemyss and Lamborn, and the correspondence between them, is enough to warrant the assertion that none of the defenses pleaded in the answer had any real, tangible support from the facts and attending circumstances. In this view of the case, an error in the instructions becomes an immaterial one, for the reason that no such error could have produced a different verdict. The verdict rendered was the necessary product of the evidence ; any other would be difficult to sustain. Hence, conceding that there was error in both instances cited iii the brief of counsel, it could not have prejudiced the plaintiff in error. (Woodman v. Davis, 32 Kas. 344, and authorities cited.)
We recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Per Curiam:
On December 10, 1887, this case was decided, and the judgment of the court below was to some extent modified. {W.&W.Rld. Co. v.Kuhn, ante, p. 104; same case, 16 Pac. Rep. 75.) Immediately thereafter the plaintiff in error, defendant below, moved for a rehearing upon the ground that the court below erred in the admission of evidence, and that this court misconstrued such evidence. After a reexamination of the case, we are inclined to think that the plaintiff in error is correct. Among the evidence complained of is the following: The plaintiff below introduced the depo-
sitiou of Rufus J. Razey, which deposition contains the following question and answer, to wit:
“Ques.: How much less, in your opinion, is this farm worth after the railroad company had established its track through it, irrespective of any benefits from any improvements proposed by the railroad company to be derived from said-track, taking into consideration all incidental loss, inconveniences and damages, present and prospective, which may reasonably ' be expected or shown to exist from the maintaining of said railroad track, to be continued permanently ? Ans.: About $2,100.”
This question and answer the court below permitted to be introduced over the objection and the exception of the defendant below. The court below certainly should not have permitted this evidence to be introduced. It involved substantially everything that the jury were called upon to determine; and left nothing for the jury to decide.' It invaded the province of the jury. It really amounted to letting the witness himself determine by his own opinion what the plaintiff’s damages were, and the amount which the plaintiff should recover in the action. It had no reference particularly to the market value of the land either before or after the right-of-way was taken; nor any reference to any specific fact which might tend to show what such market value was, or to increase or diminish the same; but it involved all these things and a great deal more. Upon the questions involved in this case we would refer generally to the following authorities: 3 Suth. Dam., ch. 16; Union Rld. Co. v. Moore, 5 Am. & Eng. Rld. Cases, 352, note, and cases there cited; McReynolds v. B. & O. Rly. Co., 14 id. 175, note, and cases there cited; Neilson v. Chicago &c. Rly. Co., 14 id. 244, note, and cases there cited; Grafton & Greenbrier Rld. Co. v. Foreman, 20 id. 225, note, and cases ’ there cited. We shall also refer to some other authorities. Where the whole of the owner’s land is taken in' condemnation proceedings, the measure of his damages is the actual value of his land; but where only a portion of his land is taken, as in this case, the measure of his damages is generally the difference in the value of the land before it was taken and afterward. This rule, though generally correct, is not always so in Kansas, for in Kansas, where the land of another is taken by a corporation for a right-of-way, the damages recoverable under § 4 of article 12 of the constitution, can never be less than the actual value of the property taken. That section reads as follows:
“Sec. 4. No right-of-way shall be appropriated to the use of any corporation, until full compensation therefor be first made in money, or secured by a deposit of money, to the owner, irrespective of any benefit from any improvement proposed by such corporation.”
The above question is objectionable for several reasons: It has no particular reference to values or to specific facts, but in effect calls for an opinion of the witness as to what the final determination upon all the facts should be. It is simply permitting the witness to answer what only the jury can properly answer. This cannot be allowed. A witness should not even be allowed to state his opinion with reference to the damages to be recovered. (Roberts v. The Comm’rs of Brown Co., 21 Kas. 248, 253; Water Co. v. Knapp, 33 id. 753; C. & P. Rld. Co. v. Ball, 5 Ohio St. 568; A. & F. Rld. Co. v. Burkett, 42 Ala. 83; Central Rld. Co. v. Senn, 73 Ga. 705; same case, 27 Am. & Eng. Rld. Cases, 304; F. E. & M. V. Rld. Co. v. Whalen, 11 Neb. 585; same case, 5 Am. & Eng. Rld. Cases, 364.) Also by this question all benefits to the plaintiff’s land are to be excluded from the witness’s computation or estimate of the amount of damages to be recovered. Whether the jury in rendering their verdict should exclude all benefits or not, it is not necessary to consider in this case. The weight of authority however would seem to be, under constitutions and statutes similar to ours, that all benefits should be excluded in estimating the value of the land actually taken, but that all proper benefits might be considered in estimating the damages to the remainder of the land which is not taken. Some of the decisions in Kansas, however, would seem to favor the exclusion of all benefits in cases like this. (St. J. & D. C. Rld. Co. v. Orr, 8 Kas. 420; Hunt v. Smith, 9 id. 137; Reisner v. Union Depot & Rld. Co., 27 id. 382.) But passing from this question without deciding it, we come to the further question whether a witness without testifying either as to specific values or as to specific facts, may estimate damages by “ taking into consideration all incidental loss, inconveniences and damages, present and prospective, which may reasonably be expected or shown to exist from the maintaining of said railroad track, to be continued permanently.” No rule of law will sustain such a question as this. In the first place, a witness is never allowed to testify in the lump with reference to “all incidental losses, inconveniences and damages, present and prospective,” to occur in all future time, or that have occurred or may occur in any particular time. As before stated, a witness is not even allowed to testify as to damages, and generally even juries are not allowed to assess damages for “all incidental losses, inconveniences and damages, present and prospective,” which have occurred or may occur. (See authorities above cited.) Generally the damages assessed must be only such as are direct, special and proximate, and not such as are speculative, remote or problematical, or such as affect the public in general and not the plaintiff in particular. (See authorities above cited, and C. B. U. P. Rld. Co. v,. Andrews, 30 Kas. 594, and cases there cited; K. C. & E. Rld. Co. v. Kregelo, 32 id. 609; Village of Hyde Park v. Dunham, 85 Ill. 570.)
The judgment of this court heretofore rendered will be set aside, and the judgment of the court below will be reversed, and the cause remanded for a new trial. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution, brought in the district court of Chase county, wherein the defendant, John Brown, is charged with a violation of the provisions of chapter 104 of the Laws of 1883. (Comp. Laws of 1885, ch. 31, §362.) , The statute reads as follows:
“ Section 1. If any person shall be drunk in any highway, street, or in any public place or building, or if any person shall be drunk in his own house, or any private building or place, disturbing his family or others, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not exceeding twenty-five dollars, or by imprisonment in the county jail for a period not exceeding thirty days.”
The information contains two hounts, in the first of which the defendant is charged with the offense of being drunk in a street in the city of Cottonwood Falls. In the second he is charged with the offense of being drunk in the court house in said city. A trial was had before the court and a jury, and the defendant was found guilty “ as charged in the information,” and was sentenced to pay a fine of $10 and the costs of suit, and to stand committed to the county jail until such fine and costs were paid. From this sentence he now appeals to this court.
Before the trial in the court below the defendant filed a motion to quash the information, upon the ground that it did not set forth facts sufficient to constitute a public offense, which motion was overruled by the court; and this ruling is alleged for error. It is claimed that the information is insufficient, and should have been quashed for the following reasons.: (1.) It does not state that the defendant was at any time disturbing his family or others. (2.) It does not describe or give the name of the street in which the defendant was drunk. (3.) The act itself under which the defendant is pros ecuted is void for the reason that it contravenes § 16, article 2 of the constitution. (4.) The act is also void if construed as the prosecution construes it, for the reason that with such a construction it would inflict a cruel and unusual punishment. (5.) Both the act and the information are void because of the indefiniteness of the word “drunk.” We think the act is valid, and the information sufficient.
The next question is a more difficult one. It is whether a person may be guilty of the offense forbidden by the statute, where he innocently drinks the liquor which intoxicates him, without having any knowledge of its intoxicating qualities, and without having any idea that it would make him drunk. The court below, over his objections and exceptions, excluded nearly all the evidence offered by him to show his ignorance of the intoxicating character of the liquor, and its possible power to produce drunkenness; and the court also gave, among others, the following instruction to the jury, to wit:
“The defendant’s ignorance of the intoxicating character of liquors drunk by him, if he did drink any such, is no excuse for any drunkenness resulting therefrom, if any did so result.”
It has always been a rule of law that ignorance or mistake of law never excuses, and this with a kindred rule, that all men are conclusively presumed to know the law, is founded upon public policy and grounded in necessity; but no such rule is invoked in this case. The question in this case is simply whether ignorance or mistake of fact will excuse. It is claimed by the prosecution that it will not, and this on account of the express terms of the statute. The statute provides in express terms, and without any exception, that “if any person shall be drunk,” etc., he shall be punished. And it would seem to be contended that there can be no exceptions. But are idiots, insane persons, children under seven years of age, babes, and persons who have been made drunk by force or fraud, and carried into a public place, to be punished under the statute ? And if not, why not ? And if these are not to be punished, then no sufficient reason can be given for pun ishing those who have become drunk through unavoidable accident, or through an honest mistake ? Of course the legislature has the power to provide for the punishment of “ any person” who may be found drunk in a public place, whatever may be his age or mental condition, or in whatever manner he may have become drunk; and it is also for the legislature to determine whether the public exigencies are such as to require that injustice shall be done to innocent individuals by inflicting upon them unmerited punishment. But we should never suppose that the legislature intended to punish the innocent unless particular words aré used that will bear no other construction. General terms inflicting punishment upon “any person” who might do any particular act should be construed to mean only such persons as-act voluntarily and intelligently in the performance of the interdicted act. We should not suppose, in the absence of specific words saying so, that the legislature intended to make accidents and mistakes crimes. Human actions can hardly be considered as culpable either in law or in morals, unless an intelligent consent of the mind goes with the actions; and to punish where there is no culpability would be the most reprehensible tyranny. The legislature usually in enacting criminal statutes, enacts them in general terms so as to make them by their terms include all persons; and' yet it is always understood that some persons, as idiots, insane persons, young children, etc., are not to be considered as coming within the provisions of the statute. It is always understood that the courts will construe the.statute in accordance with the general rules of statutory construction, and apply the act only to such persons as the legislature really intended to apply it; that is, to apply the act to such persons only as should intelligently and voluntarily commit the acts prohibited by the legislature. And it is generally better that the exceptions to the operation of the statute should not be stated in the statute itself, for if they are, then it becomes necessary for the public prosecution to also state them in the complaint. If idiots, insane persons, children, etc., are in terms excepted from the provisions of the statute, then it would be necessary for the public prosecutor to see that all informations or indictments, charging the particular offense, should substantially follow the language of the statute, and should also state the exceptions as a part of the description of the offense. He should allege that the case did not come within any of the exceptions. And he would also have to prove the same. But where the exceptions are not stated in the statute, the ctfmplaint may charge the offense substantially in the language of the statute, and without mentioning any of the exceptions, and then, if the defendant claims that the case comes within any of the exceptions, he must prove the same as a part of his defense.
With respect to punishment notwithstanding ignorance or honest mistake of fact, Mr. Joel Prentiss Bishop, one of the ablest and most philosophical law-writers of this country, uses the following language:
“A statute general in its terms is always to be taken as subject to any exceptions which the common law requires. Thus, if it creates an offense, it includes neither infants under the age of legal capacity; nor insane persons; nor, ordinarily, married women acting in the presence and by the command of their husbands. If it creates a forfeiture, it does not apply to women under»coverture.” (Bish. Stat. Cr., §131.)
“In the law of crime, the maxim is ignorantia facti exausat. As expressed by Gould, J.: ‘Ignorance or mistake in point of fact is, in all cases of supposed offense, a sufficient excuse.’ To punish a man who has acted from a pure mind, in accordance with the best lights he possessed, because, misled while he was cautious, he honestly supposed the facts to be the reverse of what they were, would restrain neither him nor any other man from doing a wrong in the future; it could inflict on him a grievous injustice, would shock the moral sense of the community, would harden men’s hearts, and promote vice instead of virtue.'” (1 Bish. Cr. L., §301.)
“What is absolute truth, no man ordinarily knows. All act from what appears, not from what it is. If persons were to delay their steps until made sure, beyond every possibility of mistake, that they were right, earthly affairs would cease to move; and stagnation, death and universal decay would follow. All, therefore, must, and constantly do, perform what else they would not, through mistake of facts. If their minds are pure, if they carefully inquire after the truth but are misled, no just law will punish them, however criminal their acts would have been if promoted by an evil motive, and executed with the real facts in view. In the law, therefore, the wrongful intent being the essence of every crime, it necessarily follows, that, whenever one is misled, without fault or carelessness, concerning facts, and, while so misled, acts as he would be justified in doing were they what he believes them to be, he is legally innocent, the same as he is innocent morally. The rule in morals is stated by Wayland to be, that, if a man ‘know not the relations in which he stands to others, and have not the means of knowing them, he is guiltless. If he know them, or have the means of knowing them and have not improved these means, he is guilty.’ The legal rule is neatly enunciated by Baron Parke thus: ‘The guilt of the accused must depend on the circumstances as they appear to him.’ This doctrine prevails likewise in the Scotch law, as it necessarily must in every system of Christian and cultivated law.” (1 Bish. Cr. L., § 303. See also the able and exhaustive note appended to § 303a.)
The following, among other cases, tend to support the views expressed by Mr. Bishop: Farrell v. The State, 32 Ohio St. 456; same case, 30 Am. Rep. 614; Miller v. The State, 3 Ohio St. 475; Brown v. The State, 24 Ind. 113; Faulks v. The People, 39 Mich. 200; same case, 33 Am. Rep. 374; People v. Parks, 49 Mich. 333; Commonwealth v. Presby, 14 Gray, (80 Mass.,) 65; Duncan v. The State, 7 Humph. 148; Dotson v. The State, 6 Coldw. 545; Birney v. The State, 8 Ohio, 230; Price v. Thorton, 10 Mo. 135; Commonwealth v. Stout, 7 B. Mon. 247; Stern v. The State, 53 Ga. 229; The State v. Hause, 71 N. C. 518; Cutter v. The State, 36 N. J. L. 125. See also the case of Wagstaff v. Schippel, 27 Kas. 450.
There are also many cases in opposition to the views expressed by Mr. Bishop, nearly all of which are cited in a note to the case of Halstead v. The State, 10 Cent. L. J. 290, 294. The decisions in Massachusetts, and also in Michigan, are to some extent contradictory and conflicting. There are cases in each of these states which support and others which oppose^ the views expressed by Mr. Bishop. In Massachusetts and in Michigan is found the greatest departure from the doctrine enunciated by Mr. Bishop. In Massachusetts, where a man and a woman were married and afterward lived together in the utmost good faith as husband and wife, it was held that the man was guilty of adultery, because the woman at the time of the marriage had a husband living, although she did not know it, although from evidence satisfactory to her she believed him to be dead, and although she had not seen him or heard from him for more than eleven years. (Commonwealth v. Thompson, 11 Allen, [93 Mass.,] 23.) And in Michigan it has been held that a hotel-keeper, who also kept a bar for the sale of spirituous liquors, might be convicted and punished for keeping an open saloon on Sunday, because his clerk, who was employed only for legal purposes, opened the barroom and sold a single drink of whisky on Sunday without the knowledge or consent of the hotel-keeper. (The People v. Roby, 52 Mich. 577.) Mr. Greenleaf, in his work on Evidence, uses the following language:
“Ignorance or mistake of fact may in some cases be admitted as an excuse; as, where a man intending to do a lawful act, does that which is unlawful. Thus, where one being alarmed in the night by the cry that thieves had broken into his house, and searching for them, with his sword, in the dark, by mistake killed an inmate of his house, he was held innocent. So if the sheep of A stray into the flock of B, who drives and shears them, supposing them to be his own, it is not larceny in B. This rule would seem to hold good in all cases where’ the act, if done knowingly, would be malum in se. But where a statute commands that an act be done or omitted, which in the absence of such statute might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute, it seems will not excuse its violation. Thus, for example, where the law enacts the forfeiture of a ship having smuggled goods onboard, and such goods ai’e secreted on board by some of the crew, the owner and officers being alike innocently ignorant of the fact, yet the forfeiture is incurred notwithstanding their ignorance. Such is also the case in regard to many other fiscal, police and other laws and regulations, for the mere violation of which, irrespective of the motives or knowledge of the party, certain penalties are enacted; for the law in these cases seems to bind the party to know the facts and to obey the law at his peril.” (3 Greenl. Ev., §21.)
To sustain the latter portion of this section, Mr. G-reenleaf cites only Massachusetts cases, which undoubtedly sustain the proposition. But has not the supreme court of Massachusetts gone astray? The first part of the foregoing section we think is unquestionably correct, and the present case falls within it. Yoluntary drunkenness in a public place was always a misdemeanor at common law; and it was always wrong morally and legally. It is malum `in se. Therefore, under either the rule enunciated by Mr. bishop, or the one enunciated by Mr. Greenleaf, this case was erroneously tried in the court below. Whether the latter portion of said section of Mr. Greenleaf's Evidence is correct or not, it is not necessary for us now to decide. Whether a party who, through an honest ignorance or mistake of fact, commits an act which is only mal'am prohibitum, may be punished for the act or not, it is not necessary now to determine. Mr. Bishop would say not. Mr. Greenleaf, following the Massachusetts supreme court decisions, would say he should be. Mr. Bishop's views are more in consonance with justice.
Before closing this opinion, it might be well to state that the fact that the defendant became intoxicated through an honest mistake, might not constitute a complete defense to the action. If after becoming drunk, he was still sufficiently in the possession of his faculties to know what he was doing, and to know the character of his acts, and went voluntarily into a public place, he would be guilty.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The defendant in error was a passenger on one of the open cars of the street railway company on the evening of October 1, 1885, at a time when there was a vast concourse of people in the city of Topeka, drawn together by a sham battle on the fair grounds during a soldiers’ reunion. The car upon which the defendant in error was riding was going north from the fair grounds along a street known as Topeka avenue. On this street, and between Huntoon and Thirteenth streets, is located alongside of the main track of the street railway, and to the east of it, a switch track, 217 feet long from point to point, used to allow cars to pass. The car upon which defendant in error was riding was what is called an open car; on each side of the frame of the car, extending its whole length, there was a foot-board from 8 to 10 inches wide, to enable passengers to step into and out of the car. And on occasions when there was a large and unusual number of passengers to be carried, these foot-boards were utilized by the company, and passengers were allowed to stand upon them, and to be carried on them from station to station. Higgs was standing on the west foot-board, north of the center of the car and near to its front end, when the car turned onto the switch, went so far north on it and approached so near to its intersection with the main track, that a closed car coming south on the main track ran so near the open one on which he was riding, that he was squeezed against one of the posts that support the roof of the open car, and was bruised and injured in the shoulders and back. The jury found in answer to special questions submitted to them, that the open car upon which he was riding at the time the injury occurred was in motion; and there is no question under the evidence but that the closed car going south on the main track was also slowly moving. It does seem that, considering the vast crowds of people which were being transported by the street railway company, the large number that was on this particular car, every seat being occupied, the front and rear platforms crowded, and many persons standing on both foot-boards, it was gross negligence upon the part of the employés of the railway company to approach so near the intersection of the switch to the main track. This act of the employés of the company was the direct and immediate cause of the injury inflicted on the defendant in error. It is among the special findings of the jury, in substance, that the car was so crowded at the time Higgs got upon it that there was no seat which could be occupied by him, and that his only chance was to ride upon the foot-board. It is in evidence that when large numbers of people were to be carried, the railway company permitted passengers to ride on the foot-boards, and collected fare from them; that on this occasion people vastly in excess of the number of seats contained in such cars were carried, so that there was no contributory negligence on the part of the defendant in error in getting on the foot-board of the car to ride to town, and in standing there, being unable to secure a seat on account of the crowded condition of the car, there not being a vacant seat that he could have taken. It is sought to establish contributory negligence on the part of the defendant in error, by proof that before this time he was crippled, and on this day was using a crutch and cane; that the superintendent of the street railway company, to whom he was personally known, had noticed that he was using the crutch and cane, and had warned him not to attempt to get on the cars “ while there was such a rush,” and promised to get him a seat in the cars; that Higgs waited for more than one hour after that promise, during which time the superintendent states that probably twenty-five cars had started but he had done nothing to secure Higgs a seat. At the expiration of this time Higgs went north the length of a block, and he and a lady relative whom he was escorting on that day got on the car upon which he was injured, and rode down to the starting-place, hoping by that means to get a seat, but there was only one vacant seat, and that was given to the lady. As the car approached the usual stopping-place the crowd congregated there, awaiting an opportunity to get down town, surged on the car as those who had ridden from town were getting off, and occupied the seats as fast as they were vacated. The special finding is, that there was not a seat which he could have taken. Then according to the usages and practices of the .company on such occasions, he had the right to get upon the foot-board of the car and ride thereon, and in this case it was not an act of negligence on his part. He was not injured in the act of getting on the car, as the superintendent seemed to be in fear of; this act'Re had performed safely, but he was injured by the negligence of the employés of the company, who permitted the open car to be placed so near the point of intersection of the switch with the main track that the cars could not pass each other with safety to the passengers. We cannot see that his use of a cane, and his temporary use of the crutch on that day, relieve the company from the liability caused by this act of gross negligence on its part. It appears from the evidence that the driver of the car was temporarily employed for the time of the reunion, and was probably inexperienced by want of former employment in this line of work, although the company kept him in its employment after the accident, and up to the time of the trial of the cause.
It is said that he could have seen the car coming on the main track, and avoided the injury by the exercise of ordinary caution. This is a dangerous assumption for the plaintiff in error; it is virtually saying that the use of his eyes ought to have made it apparent that the company was about to commit an act of gross negligence; but, as he says he did not see the car until a moment before the injury occurred, we would much rather assume for the sake of the employés on both cars, that the risk was not so imminent as to be seen and apprehended by the passengers. As a matter of fact, he did not see the danger until it was too late to avoid it. He was not guilty of contributory negligence in respect to any of the acts and matters alleged.
It must be held, that when a street railway company undertakes to carry large numbers of people, vastly in excess of the seating capacity of its ears, and permits passengers to ride on the platforms and foot-boards, without objection, and collects fare from them, and stops its cars when in such a crowded condition that no seats are attainable, and permits persons to get upon them to be carried from place to place, and when the cars are in such a crowded condition, with passengers riding on the foot-boards, runs them so near the intersection of a switch with the main track that they cannot pass without injury to passengers, the company is guilty of gross negligence.
There is a very vigorous criticism of some instructions given, and of the refusal to give others, as requested by the plaintiff in error, but the important question to be solved is presented by the third instruction given, to wit: “ Carriers of passengers are bound to exercise all possible shill, foresight and care in the running of their cars, so that passengers may not be exposed to danger on account of the manner in which the cars are run.” It is said that this places the degree of care required of a street railway company too high, and hence it was error. Admitting that this instruction does hold the street railway company to a too strict rule of diligence, and yet, as we view the evidence on the whole record, we would still hesitate to reverse the case. We doubt whether it would have been error in the trial court to have instructed the jury, as a matter of law, that the plaintiff was guilty of gross negligence in running its cars, for several reasons: First, the ques tion of negligence in this case is to be determined very largely by the character of the act, and not by the character for care and caution which the street railway company may sustain, or by the care and caution it was trying to exercise generally on this particular occasion. The negligence complained of here was the commission of such an act, to wit, the placing of the car on the switch so near the point of intersection with the main track that the most ordinary mind could see that injury would follow to those standing on the foot-boards. It seems that the evidence offered by the street railway company aggravates, rather than excuses, the negligence. It is in substance that there was another car going north, and following the one the injury occurred on, and that it was necessary to drive the first so far north on the switch as to allow the one that was following, room on the switch to pass the southbound car on the main track. This is a demonstration that the switch was not properly constructed, that it was too short, or that it was intended for only one car, and ought not to have been used by both cars going north. In either case, it shows negligence on the part of the company. The superintendent of the company testified that the length of the switch was 217 feet from point to point; that from the north point of the switch running south, the radius of increase of the width between the switch and main track for the first forty feet is one inch to the foot; for the next twenty or thirty feet there is not so much increase, as it then approaches a straight line parallel with the main track; that the cars could pass each other and not touch, when the front end of the car on the switch was twenty-six feet from the point where the switch left the main track. It is from 70 to 72 feet from the points of intersection where the switch commences to curve in for the purpose of running on the main track. This leaves a length of switch with an equal distance from the main track of 48 feet, the distance from the main track being not quite two feet. A person riding on the foot-board would be perfectly sáfe at any point on the switch until after it curves toward the main track. The skill, care and precaution' of drivers, conductors and the superintendent generally amount to nothing, in view of the plain fact that this car was driven too far north on the switch. It was this act, in this particular case, that was the direct and immediate cause of the injury. The defendant in error had a right to presume due care on the part of the railway company. He was riding on the car in a position allowed to be occupied by other passengers on like occasions ; he had no control over the employés of the company, and no knowledge of the switch, or that the company was using it beyond its safe and reasonable capacity, but he had the undoubted right to rely on the exercise of ordinary prudence by the street railway company, both as to the use of the switch and the management of its cars in the act of passing each other, when one or both were crowded with passengers. The fact that the cars, both in motion, came so near each other in the act of passing that the injured man was pressed by them, squeezed in between them, is not in dispute. Hence we say, that if the court below had charged the jury,' as a matter of law, that this was gross negligence on the part of the street railway company, we would hesitate to say that it was error but as that was not done, we will consider the instruction, and determine whether or not it stated the rule of diligence. Cars drawn by horses upon rails are in the main governed by the same rules as other vehicles. (Shearman & Redfield on Negligence, 3d ed., 312.)' In an action to recover damages for personal damages sustained as a passenger in a stage coach, the court has approved an instruction which stated that “a stage-coach proprietor who carries passengers for hire is responsible for all accidents and injuries happening to passengers, which might have been prevented by human care and foresight.” (Sawyer v. Sauer, 10 Has. 466.) So that the only objection to the instruction given in this case results from the use of the word “possible,” and it means “liable to happen or come to pass;” “capable of existing, or of being conceived or thought of;” '“capable of being done; ” “not contrary to the nature of things.” (Webster’s Dictionary.) “All possible skill and care” implies that every reasonable precaution in the management and operation of street cars ”e usec* prevent injuries to passengers; it means good tracks, safe cars, experienced drivers, careful management, and judicious operation in every respect. All possible foresight means more than this; it means anticipation, if not knowledge, that the operation ot street cars will result in danger to passengers, and that there must be some action with reference to the future, a provident care to guard against such occurrences, a wise forethought and prudent .provision that will avert the threatened evil, if human.thought or action can do so. Is it possible that the thought never occurred to any one of the persons operating this street railway that a car on the main track and one on the switch could run so close together that they would collide, or that some one might be injured by their proximity? The instruction as applied to the particular facts of this case is not objectionable; its phraseology may not be felicitous, but it does not practically require any greater or higher degree .of care than if the expression used had been “the highest” or “the utmost,” and these are frequently found in the reported cases.
The case of Puller v. Talbot, 23 Ill. 357, cited by plaintiff in error, is a case of injury by a stage coach, and the court says: “Common carriers of persons are required to do all that human care, vigilance and foresight reasonably can under the circumstances, in view of the character and mode of conveyance adopted, to prevent accident to passengers.” All that human care cando is the “highest,” “utmost,” “possible” effort.
The case of Meier v. Pa. Railroad Co., 64 Pa. St. 226, is one in which a passenger in a sleeping-car was injured by the axle of the forward truck of the car breaking, by reason of a latent defect in its construction, not discernible by those who were skilled in such matters, and has no application here, the facts being entirely different; and yet the court says in that case: “The carrier may relieve himself, by showing that the injury arose from an accident which the utmost skill, foresight and diligence could not prevent.”
The supreme court of the United States, in its opinion in the case of P. & R. Rld. Co., v. Derby, 55 U. S. 468, says:
“When carriers undertake to convey persons by the powerful but dangerous agency of steam, public policy and public safety require that they be held to the greatest possible care and diligence.”
In that case it was the greatest possible care and diligence in the management of steam cars; in this case it is all possible skill, foresight and care in the use of horse cars. Both of these expressions are used with reference to the character and modes of conveyance adopted in either case. They are similar in meaning and in legal effect, and yet are not to be understood to require that the same preventive measures or wise precautions which are taken by those directing the operation of steam cars, must be taken by those in charge of horse cars, bur. they do mean that the best effort of the minds directing the operation and supervising the management of steam cars and of horse cars, shall be diligently applied in devising ways and means to prevent injuries to passengers being carried thereon. Steam cars may require greater care in their management and greater caution in their operation, but the passengers are entitled to the highest possible degree of each; so those riding on street cars have the legal right to insist that they shall be managed and operated w-ith all possible skill, care and foresight, which in their nature they are capable of.
The theory of counsel for the plaintiff in error seems to be that the rule of highest skill can only be applied to cars propelled by steam, because it is the most dangerous of all modes of conveyance. We think that the rule applies to street cars and other vehicles drawn by horses, to its full extent, the difference being in the means and instrumentalities used to prevent accident by reason of the mode, rather than to the degree in which the' preventive means are to be employed. To each must be applied the greatest degree of skill, care and foresight of which they are susceptible, to avoid liability for injuries occasioned in their operation. We think there is no error in the instructions given, and no error in refusing the instructions asked for.
Objection is made to instructions four and six, wherein the court instructs the jury that the mere fact that the plaintiff Higgs was riding on the step of the car would not defeat his right to recover, if it was customary to ride there and the car was so crowded he could-not procure a seat, and if he rode there without objection from the conductor or other employé of the company; and it is said they were clearly wrong because there was no evidence of any permission to ride on the step, and because the evidence was undisputed that the plaintiff Higgs had been distinctly warned against riding there; and the case of Huelsenkamp v. Rly. Co., 34 Mo. 45, is cited and claimed to be decisive of this question. What are the facts as developed by the witnesses produced by the plaintiff in error ? The superintendent- said: “ I said to Higgs, don’t try to get on the cars while there is such a rush; as soon as I can, I will get you a seat; ” but he never did anything more than talk to him; made no effort to furnish a seat. It is not in terms a warning not to ride on the foot-board; it is an expression of fear that, as he was crippled, he might get hurt in the rush, coupled with a promise to get him a seat. He did not get hurt in the “rush,” and he did not get a seat. The superintendent also stated that at the reunion it was customary for persons to ride on the foot-boards, on the platform of the cars, and even on the top of the cars, and that the conductors collected fare from them wherever they rode, but they were requested not to so ride by him; that on all ears that started after he had promised Higgs to get him a seat, persons were riding on the foot-boards; that upon all the cars coming to and going from the city, the company allowed men, women and children to continuously ride upon the front platform, the rear platform, and also upon the foot-boards of the cars, and collected fare from them; that fare was collected from men riding on the top of the cars the same as if they had ridden on the inside of the cars; that the seating capacity of an open car is twenty-five persons, and it carried from that number to eighty persons; that it stopped to receive passengers and allowed them to get on, long after the seats were all occupied ; that fare was collected if they got on the car, without reference to whether they had a seat or not. The conductor of the car said that it was a fact that passengers continuously rode on the foot-boards, and sometimes on the top of the cars, and he collected fare from them. These citations from the evidence in the record abundantly establish the proposition that on this occasion the defendant in error had permission to ride on the foot-boards, and had not been distinctly warned against riding there. These facts justify the instructions complained of. The case cited was reversed, because no such permission was proved or shown on the trial below; here it was shown conclusively, by the witnesses of the plaintiff in error, that the usage and practice, whenever there was a large crowd to be accommodated, was for men, women and children to continuously ride on the foot-boards, and that fare was always collected from them.
The second instruction asked by the street railway company was properly refused, because it did not state the rule of diligence and care required by such company in the operation of its road and the management of its cars.
The answer to special question No. 4, submitted to the jury, must be construed in the light of the evidence respecting the subject-matter of the interrogatory. In the view of counsel for plaintiff in error, a person in a crippled condition has no right to ride on a street car under any circumstances, except when a seat is furnished by some employé of the company. It is unquestioned that the company can make all such rules respecting the manner in getting off or on the cars; the place where passengers are to ride; and every other reasonable regulation that conduces to the safety and accommodation of the persons to be carried over its line, and has the undoubted right to insist on their due observance; but having done so, the company must not be the first to violate them or depart from their requirements, so that if it is permitting men, women and children, on public occasions, when there is a large number of persons to be carried, to ride on the foot-boards of its cars, it cannot relieve itself of liability for an injury to a person on the foot-board by a warning and a promise of a seat. The defendant in error had the same right to ride on the foot-board of the car as any other passenger whom they carried on that day. If, on account of his crippled condition, he had been injured by people rushing to get on or off the cars of the company, of course no liability would attach to the company on account of such an injury. His crippled condition did not change his rights or vary the duties and obligations of the company as a carrier of passengers, in any respect, except that he was entitled to a longer time in which to get on or off the cars than a passenger who was not crippled or infirm. He was not injured by reason of his crippled condition, nor is there any. evidence which shows that such condition either directly or indirectly contributed in any manner to the injury.
It is also insisted in this connection, that the position taken knowingly and intentionally by the defendant in error, is negligence per se, and for that réason the company is not liable. While we have substantially disposed of this objection, in what we have said on another branch of the case, it is well to reinforce that view by citations from a few well-considered cases. In Germantown Rly. Co. v. Walling, 97 Pa. St. 55:
“ The passenger voluntarily got upon a car so crowded that he was obliged to take a position on the step of the front platform of the car, occupied at the time by two other men, between whom he squeezed into a position, where, for the purpose of retaining his place, he was obliged to hold fast with one hand to the dasher, and with the other to the iron bar under the window of the car. The car stopped when he hailed it, and received him as a passenger. The driver testifies that he knew the car was so full a man could not go through it to the rear platform. Crowded as it was, the conductor said there was room for more, both .inside and on the rear platform, but Walling first tried to get on the rear platform, and failing, went to the front. Conductor, driver and passengers acted as if there was room so long as a mau could find rest for his feet, and a place to hold on with his hands. The companies do not consider such practices .dangerous, for they knowingly suffer it, and are parties to it. Their cars stop for passengers when none but experienced conductors see a footing inside or out. Street railway companies have all along considered their platforms a place of safety, and so have the public. Shall the court say that riding on a platform is so dangerous that one who pays for standing there can recover nothing for an injury arising from the company’s default? So little danger exists in riding on platforms, accidents to passengers while thus riding are so rare, that this is the first time the question raised has been presented in Pennsylvania.”
In Meesel v. L. & B. Rld. Co., 8 Allen, 234, the court said:
“The seats inside are not the only places where the managers expect passengers to rem'ain, but it is notorious that they stop habitually to receive passengers to stand inside till the car is full, and continue to stop and receive them even after there is no place to stand except on the steps of the platforms. Neither the officers of these corporations, nor the managers of the cars, nor the traveling public, seem to regard this practice as hazardous, nor does experience thus far seem to require that it should be restrained on account of the danger. There is therefore no basis upon which the court can decide, upon the evidence reported, that the plaintiff did not use ordinary care.”
The facts in this case were very similar to the one cited from Pennsylvania. Standing on the front platform of a horse car when there is room inside, is not conclusive evidence that the person injured by the driver’s default was not exercising due care. (Maguire v. Middlesex Rld. Co., 115 Mass. 239.)
A street railway company has the right to carry passengers on the platforms, and if a passenger be injured while standing there, without objection by the company’s agent, whether the injury was with his contributory negligence is for the jury to decide under all the facts and circumstances detailed in the evidence. (Burns v. Bellefontaine Rly. Co., 50 Mo. 139.) It has also been decided in other states, that if a passenger be in-' jured while standing on the platform of a street or horse car, the question of his contributory negligence is one of fact for the jury.
In Nolan v. B. C. & N Rld. Co., a very recent case decided by the New York court of appeals, 87 N. Y. 63: “ The plaintiff, a passenger on a street car, rode on the front platform, without warning or notice to the contrary, for the purpose of smoking. There was plenty of room inside, but the conductor took his fare without comment.” Being thrown off and injured by a violent and negligent jolt, it was held that he was not debarred from recovery by occupying the platform. It seems from these cases, that there could be no pretense for saying, under the particular facts of this case, that the defendant in error was negligent per se.
There is nothing in the other exceptions which would justify a reversal.
It is recommended that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
Samuel J. Smith brought an action in the district court of Rice county against William Cackley, to recover upon a promissory note given for $915.95. He filed an affidavit stating that Cackley was a non-resident of Kansas, and procured the issuance of an order of attachment. An affidavit was also filed as a basis for service by publication, following which a service by publication was attempted. Real estate of Cackley, appraised at $1,500, was attached, and at the September term, 1885, of the court, a judgment was rendered in favor of Smith for the amount claimed. The attachment was confirmed, and the property seized was ordered to be sold. Within a year Cackley appeared for the first time, and moved the court to vacate the judgment and proceedings for several reasons, the principal ground being the insufficiency of the published notice for constructive service. The motion was not allowed, and on this ruling error is assigned.
The case turns upon the sufficiency of the notice, which, omitting the captiou, title, and signature, is as follows:
“ Said defendant, William Cackley, will take notice that he has been sued in the above-named court upon one promissory note, the demand being for $915.95, and interest thereon at 8 per cent, per annum from April 20,1885, and must answer the petition filed therein by the said plaintiff on or before the 25th day of July, 1885, or said petition will be taken as true, and judgment for plaintiff in said action for said sum, and the attachment therein granted, will be rendered accordingly.”
Within the decisions already made by this court, the notice must be held to be defective. The publication fails to describe the land that was attached. While it states that an attachment has been granted in the case, it does not in fact show that any property had been levied upon. There being no personal service, jurisdiction could be acquired only through attachment and publication. In such a case, if no property was levied on, no effectual order or judgment could be rendered; and where a levy is made, the amount of property attached fixes the. limit of recovery. A judgment in an action by attachment resting only on constructive service, reaches no property except that which is subject to the lien of attachment; and this lien is fixed and determined by the judgment. As the code requires that the nature of the judgment shall be stated in the notice, it has been held that a description of the land attached should be stated. In the early case of Cohen v. Trowbridge, 6 Kas. 385, this precise question was examined and determined. In that case the notice of publication showed that the land of the non-resident defendant had been attached, but it described the land as the northeast quarter of section 9, township 5, range 18, without stating whether it was the range east or west of the sixth principal meridian, either of which would be within the state; and.the court decided that the na ture of the judgment claimed was not stated with sufficient certainty, and sustained the district court in holding the notice of publication to be defective.
In Rapp v, Kyle, 26 Kas. 89, the same question was under consideration, and the court remarked that it had no disposition to limit the scope or authority of the decision in Cohen v. Trowbridge, supra. In that case the notice in question was challenged because it did not state that an order would be entered for the sale of the attached property. The notice, however, did state that an attachment had been issued and levied upon certain described real estate. Although the court there held that a notice which omitted the statement that an order of sale would be entered for the sale of the attached property was not fatally defective, it remarked:
“We do not wish to be understood that where real estate is taken under attachment, it is unnecessary to describe the property in the notice of publication, or that an error or uncertainty in the description will not vitiate the notice.”
The rule thus early established and subsequently approved, requires us to hold that the publication notice in the present case is insufficient. The motion to vacate the judgment based upon the defective notice should have been allowed; and for that purpose the order overruling the same will be reversed, and the cause remanded.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
This action was brought to recover the value of a trunk and its contents, which plaintiff in error received as baggage to be transported over its road and connecting lines to Mitchell, Dakota territory. The findings of fact by the court show the following: That on the 28th day of August, 1884, plaintiff, defendant in error, desiring to go from Atchison to Mitchell, Dakota territory, applied to the defendant at Atchison for a ticket from Atchison to Mitchell, and was by the agent informed of the price of a ticket or fare between said points, which amount the plaintiff paid, and was given a ticket. The ticket received by the plaintiff was what was called a “skeleton ticket,” with coupons attached, giving the names of the different roads over which plaintiff would travel iu going from Atchison to Mitchell. At the time of receiving said ticket the agent made no statement of the contents of the ticket to the plaintiff, and she made no examination of the ticket. The heading of the ticket contained these words:
“Special limited ticket. Good for one continuous first-class passage, when [--] stamped by the company’s agent, subject to the following contract: In selling this ticket for passage over other roads, this company acts only as agent, and assumes no responsibility beyond its own line. None of the companies represented in this ticket will assume any liability on baggage except for wearing apparel, and then only for a sum not exceeding $100.”
Below this printed matter was left a blank space for the signature of the purchaser, and also for a witness. Plaintiff was not required to and did not sign said ticket, and it was not witnessed or signed by any one. No reduction of fare was made by reason of the stipulation contained in the ticket. This ticket was for a passage, first, over the defendant’s road from Atchison to Council Bluffs; from Council Bluffs, over the Chicago & Northwestern Railway and the Sioux City & Pacific Railroad, to Sioux City; from Sioux City, over the Chicago, Milwaukee & St. Paul Railway, to Mitchell, Dakota. After receiving this ticket the plaintiff presented it to the baggage agent at the union depot at Atchison, and with it her trunk containing the usual wearing apparel of the plaintiff, and requested that the same be checked, which was done, and she received a check for the transportation of said trunk from Atchison to Mitchell, over the lines named in said ticket. Plaintiff boarded the defendant’s train at Atchison, and defendant took charge of and placed said baggage upon the train, and the same was transported to Coun cil Bluffs. When it arrived there the trunk was by the defendant’s agents in charge of the train, assisted by the employés of the union depot at Council Bluffs, unloaded from the baggage car and placed upon a truck, for the purpose of being transported into the depot. The defendant had also received as baggage, somewhere between Atchison and Council Bluffs, a box containing three jugs of sulphuric acid. The top of this box was covered with a cloth only. In unloading the baggage this box was placed on the top of the truck containing the trank of the plaintiff, and in this condition the truck was rolled into the baggage room of the union depot by the employés of said depot, and in removing the baggage from the truck they first attempted to remove the box containing the sulphuric acid, and the contents of one of the jugs was spilled and ran over the baggage and the trank of the plaintiff; the acid escaping by reason of the cork having been eaten up or destroyed by the acid, and the trunk and its contents were saturated by the acid and all of its contents destroyed or burned up, save and except two or three articles. Plaintiff, on arriving at her destination, presented her check, and was informed that her trunk had not arrived; whereupon she went to a hotel and remained nine days, at an expense of $11.25, waiting for her trunk to arrive. Finding that it did not come, she returned to Council Bluffs, and there learned of the destruction of the baggage, and the articles saved therefrom were ■turned over to her. Afterward she returned to Atchison, and commenced this action for the value of the trunk and its contents.
The first objection to this judgment is, that the court had no jurisdiction of the defendant, contending that as this action was brought under § 50 of the code of civil procedure, it (the defendant) did not come within the provisions of said section, under the facts shown in this case. The evidence shows, and the court found, that the defendant ran its train over its main line in Missouri, and at Atchison crossed the bridge owned by the bridge company to the union depot, over the tracks owned by the Union Depot Company, which company was composed of seven railroad companies, among which was the defendant. Defendant backed its train over the bridge to the union depot, where it received baggage and passengers for transportation over its line. No evidence was shown that there was any lease by which the defendant ran its trains over the bridge and to the depot at Atchison. Under this evidence the defendant insists that it cannot be sued in the couiity of Atchison, for the reason that it does not lease, own or control any line of road in the city of Atchison. The record shows that this action was brought in a justice’s court and appealed by defendant to the district court, where the case was tried upon the bill of particulars as filed in the justice’s court. Nowhere does the record disclose any objections to the jurisdiction of the court, either before the justice of the peace or the district court, and the first objection made to the jurisdiction of the court was made in the motion for a new trial. This seems to us to be too late to raise that question. If the defendant desired to challenge the jurisdiction of the court it ought to have done so at an earlier period in the history of this case. (Miller v. Bogart, 19 Kas. 117; N. M. Rld. Co. v. Akers, 4 id. 453; Shuster v. Finan, 19 id. 114.)
The second reason assigned why this judgment should be reversed or modified is, that the ticket issued by the defendant, and under which this baggage was checked, was a contract limiting the liability of the defendant in case of loss of baggage to $100. It is perhaps true that the defendant might by a special contract limit its liability, so as not to be responsible in case of loss of baggage beyond a given sum, provided the contract was a reasonable restriction. In this case there was no contract on the part of the plaintiff, and no knowledge was convejmd to her of any intention on the part of the defendant to limit its liability save and except what the ticket itself contained, and this was not read or its contents made known to the plaintiff. Can this be called an implied contract ? We think that, before the plaintiff can be bound by the declara tions in the ticket for transportation on a passenger train, the restrictions or limitations sought to be made must be known to her, and she must have accepted the ticket with a full knowledge of the restrictions contained therein. This ticket contained a blank for the signature of the purchaser, and that signature was to be witnessed by some one. This was not done in this case. The •object of that blank space being left there was, doubtless, that the attention of a purchaser might be called to the conditions of the ticket, and when called to sign it he would then know its contents. This would constitute a contract between them, but without it there would be no contract and no restriction or limitation of the liability of the company. The ticket is not a contract of itself; it is simply evidence of a contract. (Lawson on Carriers, §§106,107.) Before the giving of this ticket there was nothing said between the parties that one was to limit his liability under certain conditions or circumstances, and consequently the ticket could not be evidence of a contract that did not exist. Again, where a person purchases a ticket, he does not expect that thereby he is making a contract limiting the liability of the railroad company, but simply that he is receiving a check showing that the fare has been paid over the line to the place of destination, wherever that may be. (B. & O. Rld. Co. v. Campbell, 36 Ohio St. 657; Railroad Co. v. Fraloff, 100 U. S. 24; A.T.& S. F. Rld. Co. v. Roach, 35 Kas. 740, and cases there cited.)
But defendant insists that this baggage was not destroyed •or injured while in its possession or under its control, but after it had been transferred to the employés of the union depot at Council Bluffs. True, the baggage was in the union depot when it was destroyed, but it was there in the same condition that it was left or placed in by the agents of the defendant. Its employés had placed it upon the truck, and after it was placed there, with other baggage, nothing was done to it by the employés of the Union Depot Company to cause its destruction, but it was destroyed by reason of improper baggage having been placed on top of the trank, which, when placed in the depot, its contents were spilled over the baggage, thus destroying it. Then it was the act and negligence of the defendant that caused the injury: it had received a box not in condition to be taken as baggage, containing a jug of acid, which was liable to be broken and its contents spilled over the baggage, and had carelessly and negligently placed such box on the trunk of the plaintiff. Without passing upon the question as to the liability of the defendant had the baggage been transferred to a connecting line, and then by the negligence of the ernployés of said connecting line the baggage had been lost, we hold that the defendant, by its negligence and carelessness, caused the destruction of this baggage, and is liable therefor.
It is recommended that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The only question involved in this case is, whether certain real estate, less than one acre, and lying, within the incorporated city of Leavenworth, is the homestead of William Gordon and his family, so as to render it exempt from sale under a certain judgment in favor of H. L>. Rush and against Gordon. At the time when this judgment was rendered, and ever since, the property has been occupied by Gordon and his family. The upper stories of the main building situated on the property have all the time been occupied by Gordon and his wife and children as their residence, and access to and egress from the upper stories are by means of stairwáys through the first or lower story. All the heating apparatus for the entire building is located in the cellar, and the cellar is used in connection with the upper stories as a residence, not only for heating purposes, but also for storage, and the heat must pass from the cellar through the first or the lower story to the upper stories. The first or lower story and the cellar are also used by the wife for the purpose of carrying on a retail grocery and provision business. The entire real estate in controversy is used by the husband and wife in connection with their residence and the grocery and provision business; and there is nothing to prevent it from being a homestead within the meaning of the homestead-exemption laws, except that the wife keeps a grocery and provision store in the first or lower story, and makes use of the cellar and some other parts of the premises in connection therewith. We think the property is a homestead within the meaning of the homestead-exemption laws, and not subject to sale on judicial process. (Hogan v. Manners, 23 Kas. 551.)
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Far Cwriam:
Under the authority of M. & M. Rly. Co. v. Champlin, Treas., 37 Kas. 682, this case will be reversed. We have reexamined the questions involved, but perceive no reason for changing the decision.
The question of the constitutionality of subdivision 8 of § 22, ch. 110, General Statutes of 1868, was not presented, discussed or decided in K. C., Ft. S. & G. Rld. Co. v. Tontz, Treas., 29 Kas. 460, referred to.
The judgment of the district court will be reversed, and the cause remanded for a new trial. | [
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Opinion by
Clogston, C.:
The question presented for our consideration is, are the conclusions of law and judgment sustained by the findings of fact as found by the court? If they are, then the judgment was properly rendered thereon for the defendant. At the time this action was commenced, Cady, the constable, was in possession of the property by virtue of' an execution regularly issued upon a judgment in favor of Mrs. Greer. This execution was properly levied upon the property in controversy, and by such levy all right of Brinzendine, the owner, was transferred to the judgment creditor; but this levy gave the constable no greater right to the possession of the property than Brinzendine had, and when demaud was made upon the constable for the property it was his duty to surrender it to the mortgagee, the plaintiff in this action. This surrender would have passed the property to the plaintiff with this additional burden or lien of the execution creditor, which would have the effect to transfer whatever right Brinzendine had in the proceeds after the sale of the property under the mortgage, and the satisfaction of the debt secured thereby to the execution creditor or to the constable who held the execution. Releasing the property to the plaintiff would not release the lien established by the levy, only so far as the possession of the property was concerned, but the lien would continue and bind the surplus proceeds to the amount of the judgment and costs. By the terms of the mortgage, plaintiff was entitled to the possession of the property upon default in the payment of the debt for which the mortgage was given, and all that it was necessary for the plaintiff to do before bringing the action was to demand the possession of the property under his mortgage. The mortgage having been given to secure a debt, and the debt having become due, no demand was necessary upon JBrinzendine for its payment, and consequently no demand was necessary upon the constable, except for the possession of the property.
Defendant also insists that, as it was shown that Ament had a first mortgage upon the property, which was also due, and gave him a prior right to its possession, for this reason plaintiff was not at the commencement of the action entitled to its possession. It is true that under a general denial in an action of replevin, the defendant may show that the plaintiff is not entitled to the possession of the property, that being the gist of the action; and to defeat plaintiff’s right of possession he may not only show that he is entitled to the possession himself, but may also show that the right of possession belongs to another, even if a stranger to the action; but this right of possession must be an absolute right — one not contingent or depending upon circumstances or conditions — and it would not be sufficient to show that there were other and superior outstanding mortgages against the property, although under some circumstances or conditions the mortgagee might be entitled to the possession of the property, even as against both plaintiff and defendant. This right of possession under a mortgage is a right to be claimed by the mortgagee. He might never claim the property; it might not be necessary for him to do so; the debt might be paid, or he might have other security or other property included in his mortgage sufficient to satisfy his claim, independent of this property. This being-true, we think that the fact that Ament held a mortgage on this same property is not sufficient to defeat the plaintiff’s right to recover its possession as against the defendant’s claim under the levy of the execution. He was entitled to the property as against the defendant and as against all the world until some other claimant asserted a better right.
Again, defendant insists that the plaintiff’s debt had nearly all been paid after the commencement of the action and be fore trial; and the court so found. The evidence upon which this finding was made was improperly received. The issue joined and the facts to be tried were whether or not the plaintiff was entitled to the possession of the property at the commencement of the action; and if after that, payment, or anything else, had occurred that would render plaintiff’s claim inoperative, it must be set up as a defense, and an application to the court showing such facts, leave to file a supplemental defense would have been given, and an issue would then have been presented. This was not done. The evidence was incompetent, and a finding or conclusion upon evidence improperly received on an issue not raised by the pleadings, will be disregarded by this court. We are therefore of the opinion that at the commencement of this action plaintiff was entitled to the immediate possession of this property as against the defendant.
It is recommended that the cause be reversed, and remanded to the court below, with an order that judgment be rendered on the findings of fact as found by the court, in favor of the plaintiff below, for the possession of the property and for costs.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The undertaking upon which a recovery is sought was not given by the defendant debtor, nor in his behalf. He did not own the property attached, had no interest in the attachment proceedings, and permitted judgment to be taken against him by default. Albert Witascheck interpleaded in the action, and claimed to be the owner of the goods which had been seized; and on this issue he obtained judgment in his' favor. This judgment and the one taken by default against Charles Witascheck had both been rendered a considerable time before the undertaking sued on was executed. The agreement of the parties executed at the same time with the undertaking, and appended to it, specifically states thatthe bond was executed under § 52 of the justices code, and shall be so treated and considered. That section provides:
“ If the defendant or other person in his behalf, at any time before judgment, cause an undertaking to be executed to the plaintiff, by one or more sureties resident in the county, to be approved by the justice, in double the amount of the plaintiff’s claim, to be stated in his affidavit, to the effect that the defendant shall perform the judgment of the justice, the attachment in such action shall be discharged, and restitution' made of the property taken under it or the proceeds thereof. Such undertaking shall also discharge the liability of a garnishee in such action, for any property of the defendant in his hands.”
Under this provision, the attached property may be released during the pendency of the action of attachment and before judgment is given. There is no authority, however^ iQ § 52 for the giving or acceptance of a bond after the attachment action has culminated in a judgment. It prescribes a method to be pursued during the pendency of the proceedings and before judgment is rendered. The undertaking provided by that section is a substitute for the property attached; and in the event that the attachment is sustained and judgment given in favor of the plaintiff, he looks to the undertaking instead of to the property which was seized. The giving of the undertaking operates to discharge the attachment and the liability of any garnishee, and to restore the property to the defendant. After the attachment has been upheld and final judgment rendered, no necessity exists for the giving of such bond. It could be of no benefit to the defendant or party contesting for the property, and as we have seen, no authority exists for taking or approving it. The undertaking sued on could not have been taken with reference to the controversy between the plaintiff and Charles Witascheck,- for that judgment was entered seventeen days before the execution of the undertaking. If it was taken by plaintiffs with reference to the final result between themselves and the interpleader, they are in no better condition, for that judgment is against them. It is- true, the justice of the peace suspended, or undertook to suspend, the operation of that judgment for thirty days, in order that the plaintiffs might prepare a bill of exceptions on which to review his rulings in the district court. The undertaking was manifestly given upon the theory that a proceeding in error would be prosecuted, and as a security that the obligor would perform the final judgment in case of a reversal. But no proceeding in error or appeal was ever prosecuted, and there has been no reversal. The order suspending the judgment, whatever may have been its effect, was abrogated by the justice on July 8th,.thirty-two days after he adjudged the attachment to be invalid and that Albert Witascheck was the bona fide purchaser and owner of the property. That judgment stands as a final adjudication that the property belonged to Albert Witascheck at the time it was seized.
Therefore the plaintiffs had no right or interest in the property attached, and parted’ with nothing in exchange for the undertaking. Albert Witascheck received nothing by reason of the undertaking beyond what he was entitled to without it, and therefore there was no consideration tor its execution. If we consider the attachment as continued by the order of suspension, and that the undertaking was given as a substituted security for the property attached to await the final judgment thereon, still no liability could arise, because no judgment adverse to the obligor has been rendered. In no view of the case as it is presented here can the defendants be held liable, and the judgment of the district court must therefore be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The principal question now to be determined is, whether the ordinance under which the justification was made by the marshal is valid. All the other questions raised by plaintiff in error on said ordinance have been passed upon by this court, and adversely to the plaintiff's claim. (See The State, ex rel., v. City of Topeka, 36 Kas. 76.) If this ordinance is valid, then the judgment of the court must be affirmed. Section 9, chapter 19, Comp. Laws of 1885, provides “that no ordinance shall contain more than one subject, which shall be clearly expressed in its title.'' The title of the ordinance in question was, “An ordinance prohibiting animals from running at large in the city.” Section 1 named what animals should be prohibited from running at large. These animals are prohibited from running at large at all seasons and under all conditions. Section 2 provides that no person shall keep a dog, etc., within the limits of the city of Newton, without first complying with certain regulations, among which is the payment of a tax, the registration of the dog, and the procuring of a tag and collar to be worn by the dog; and also providing that in case a dog is found running at large in the city without such collar and tag, it shall be the duty of the marshal to kill him and remove his body from the city. The language of § 9, above quoted, is an exact copy of the constitution of the state in relation to bills, with the exception that the word “ordinance” is used where the constitution uses the word “bill.” This provision of the constitution is universally recognized as being mandatory upon the legislature. (Comm’rs of Sedgwick Co. v. Bailey, 13 Kas. 600; Philpin v. McCarty, 24 id. 402; The State, ex rel., v. Bankers’ Association, 23 id. 501; The State v. Barrett, 27 id. 213; M. K. & T. Rly. Co. v. Long, 27 id. 684.) This provision of the statute is as binding upon cities as that of the constitution is upon the legislature in relation to its acts, and by its terms the statute has said that the title of an ordinance must be an index of what it contains.
The primary and sole object of §1, which is clearly indi cated by its title, is to prohibit certain animals from running at large, and this is all that is included in its title; while § 2 had for its object the collection of a tax on dogs, and their destruction in case the tax was not paid, and a license or permission to run at large when the tax was paid. This section makes the owner criminally liable if this tax is not paid and the dog registered, whether the dog is permitted to run at large or not, and it would have been a violation of the ordinance (if this ordinance is valid) for plaintiff to have kept his dog shut up and never permitted him to go upon the street of at large at all. The owner must pay the tax, or be criminally liable. This clearly shows that the title of this ordinance is not broad enough to include § 2, and therefore must be held void. This court has held, in City of Emporia v. Volmer, 12 Kas. 630, that the words restrain and regulate are not synonymous with prohibit. Applying that rule to this case, which prohibits the running at large, it would not include the less, and restrain and regulate certain animals, and permit them under certain conditions to run at large.
The notice published by the marshal, under the di rection of the mayor, was not such a regulation as could be enforced. A direction of this character and a notice of this kind would not justify the marshal in the killing of plaintiff’s dog. Such a regulation can only be made valid by an ordinance of the city. Power is given the mayor and council to pass reasonable regulations in relation to restraining or prohibiting dogs from running at large, and to tax them. This is held to be a proper and legitimate subject for an ordinance; but before this power can be invoked or enforced, the city council must have passed an ordinance in relation thereto. We are therefore of the opinion that the judgment of the court was wrong, and that there was error in admitting said ordinance and notice in evidence, over the objection of the plaintiff.
It is therefore recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was commenced December 21, 1885, by R. H. Cooper, against M. F. Brinkman and J. E. Clark, partners as Brinkman & Clark, to recover four hundred fifty-seven dollars and thirty-seven cents upon certain promissory notes executed by them to Cooper. The notes were secured by a chattel mortgage. Several other parties were made defendants in the action, because of their interest in the property mortgaged. At the commencement of the action, Jacob De Con was appointed receiver to take possession of the goods and chattels described in the mortgages; and also of all of the book accounts and other property of Brinkman & Clark. He was directed to sell the goods at retail in the usual course of trade and to apply the proceeds thereof, after the payment of all expenses and costs, upon the indebtedness of Brinkman & Clark, in accordance with the priorities of the chattel mortgages, viz.: First, to M. Pettingill & Co. ; second, to Tootle, Hanna & Co.; third, to Tootle, Hosea & Co.; fourth, to Tootle, Sherman & Co.; fifth, to Grabfield, Sickles & Co.; sixth, to Claflin, Allen & Co.; seventh, to J. H. Wear, Boogher & Co.; eighth, to Lieberman & Manheimer; ninth, to R. S. McDonald & Co.; tenth, to R. H. Cooper.
At the time this order was granted A. L. Redden appeared as attorney of R. H. Cooper; E. N. Smith and M. E. Gilgore appeared as attorneys of M. F. Brinkman; and the other creditors appeared by their attorneys, A. L. L. Hamilton, C. A. Lelaud, H. W. Schumacher, and E. E. Carr. No exception seems to have been taken to the appointment of the receiver, nor to the direction to the receiver as to the distribution of the proceeds of the mortgaged property. No answers were filed by any of the defendants.
On May 8, 1886, M. Pettingill & Co., Tootle, Hanna & Co., Tootle, Hosea & Co., Tootle, Sherman & Co., Grabfield, Sickles & Co., Claflin, Allen & Co., and J. H. Wear, Boogher & Co., filed their motion to require the receiver to file his report and pay from the proceeds in his hands according to the alleged priority of the chattel mortgages the following sums: First, nine hundred and twenty-four dollars and thirty-seven cents, with interest, to M. Pettingill & Co.; two thousand two hundred and twenty-seven dollars, with interest, to Tootle, Hanna & Co.; and the balance, if any, to Tootle, Hosea & Co., Tootle, Sherman & Co., Grabfield, Sickles & Co., and Claflin, Allen & Co. On May 13, 1886, R. H. Cooper filed his motion requesting the court to direct the receiver to apply the money in his hands from the proceeds of the mortgaged property as follows: First, to the payment of the costs of this action; second, to the payment of said plaintiff’s claim and the judgment of said plaintiff; third, that the balance, if any, be paid as ordered by the court.
All the matters came up for hearing and decision on May 28, 1886. The court found that after paying the compensation and expenses allowed the receiver, there was in his hands to be applied upon the chattel mortgages, according to their priorities, two thousand and twenty-six dollars and sixty-five cents. It directed that nine hundred and twenty-four dollars and thirty-seven cents be paid to Pettingill & Co.; next, that all the costs of the action be paid, and the balance turned over to Messrs. Tootle, Hanna & Co.; the court finding that there was two thousand two hundred and twenty-seven dollars and nine cents, bearing interest from May 8, 1886, at eight per cent, per annum, due to the latter from Brinkman & Clark.
A verbal motion for a new trial was filed, but upon what grounds is not stated in the record; therefore, as this motion was not filed, or in. writing, and as we cannot know what it contained, it cannot be considered. (Douglass v. Insley, 34 Kas. 604; Clark v. Imbrie, 25 id. 424; Ervin v. Morris, 26 id. 664; Decker v. House, 30 id. 614.) In the condition of the record, all questions arising upon the trial alone must be excluded. The only error appearing was the failure of the trial court upon default of Brinkman & Clark to render judgment in favor of Cooper against them for the amount claimed in the petition. (Civil Code, §§108, 128; Cole v. Hoeburg, 36 Kas. 263.) We perceive no error as to the distribution of the proceeds in the hands of the receiver. The petition alleges that the chattel mortgage to secure the debt of Cooper was executed December 19,1885, and filed the same day at 11:50 o’clock a.m. This mortgage recited that it was given subject to the chattel mortgages of Pettingill & Co., and the omnibus mortgage given to secure Tootle, Hanna & Co. and several other, creditors, executed prior thereto. The petition also expressly states that the chattel mortgage to Pettingill & Co. was for sixteen hundred dollars, less about eight hundred dollars paid thereon; and the omnibus mortgage to Tootle, Hanna & Co. and other creditors was for four thousand seven hundred and seventy-six dollars and eighty-four cents. The petition also admits that these mortgages were prior to the mortgage of Cooper; and that Brinkman & Clark owed six thousand five hundred dollars upon their several mortgages. There was no allegation in the petition that any of the prior mortgages were fraudulent, invalid, or worthless; but on the other hand, the prayer of the petition was that the proceeds of the property of Brink-man & Clark be distributed to their creditors, as their interests and rights might appear. The order of distribution was in accordance with the facts stated and admitted by the petition.
The orders and judgments of the district court will be affirmed as to all of the parties, except M. F. Brinkman aud J. E. Clark; and the cause is remanded with direction to the court below to enter judgment in favor of Cooper against Brinkman & Clark upon the promissory notes set forth in the petition. The costs in this court will be taxed against Brink-man & Clark, but if they are unable to pay the same, the plaintiff in error will be liable therefor. All the other defendants in error will recover their costs from the plaintiff in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for recovery of money from a bank based on its alleged acceptance of an order to pay money to the holder.
After the petition had been filed and the defendant had answered both parties moved for judgment on the pleadings. The trial court expressed its perplexity in deciding the action on such basis, but after consideration, rendered judgment in favor of the plaintiff, and defendant appeals.
The principal difference between the parties is as to whether the order to pay was accepted by the bank or merely left there by the plaintiff. The pleadings disclose the following: The plaintiff Mendell sold goods for $315 to one Grannell, who owned some property mortgaged to one Swenson. It was agreed that the defendant bank, through its cashier, should sell the property to pay the mortgage. Grannell executed and delivered to Mendell a written order on the bank to pay Mendell the excess above the mortgage to the extent of $315, which order Mendell alleges the bank orally accepted. The sale was subsequently held and the bank had a balance of $173.40 applicable to payment to Mendell. The bank neglected and refused to pay Mendell promptly, and thereafter another creditor of Grannell brought suit against him in a justice court and had garnishment process issued against the bank. Mendell was not a party to that suit. Although the bank seems to have informed the justice of the peace of Mendell’s claim, no effort was made to have him made a party. As a result of that suit the bank paid $173.40, less some deductions, into justice court. The bank refusing to pay, Mendell filed his petition setting up the fact of the debt, the giving of the order, the sale of the mortgaged property and the excess in the hands of the bank, and its refusal to pay. The bank answered, admitting the allegations except it denied acceptance of the order and alleged Mendell left the order with its cashier, who took and retained it without making any statement as to whether it would be paid or not. It further alleged that subsequent to the action in the justice court it returned the order to Grannell upon his demand. It may here be remarked that the order was never produced, and just what its terms were is not clear. The bank further answered as to the suit in the justice court, and that it owed Grannell $173.40 and paid into justice court $164.40, the difference of $9 being used as costs and expenses, of which there is no detailed statement. It denied receipt of any consideration and alleged that it was not benefited by the transaction, and it also alleged that the acts of its cashier were ultra vires.
The parties do not agree as to what the issue is before this c'ourt, the bank stating the questions involved as being the power of the cashier to bind the bank by oral acceptance of the written order to pay, and the liability to a third party of a garnishee who pays money into court upon valid order. So far as is necessary Mendell’s contentions will be noticed later. As has been mentioned, the order, or a copy of it, was not before the court. The bank treats it as though it were a bill of exchange and argues that under R. S. 52-1102, before-it could be bound, its acceptance must have been in writing. Assuming it was a bill of exchange, under R. S. 52-1105 the bank had twenty-four hours in which to decide whether or not it would accept the bill, and under R. S. 52-1106 its failure in that period to return the bill, accepted or nonaccepted to the holder, is deemed an acceptance. It is not disputed that the order was received by the bank and was kept by it for a considerable length of time, being ultimately returned to Grannell, who was not entitled to it under any circumstances disclosed by the record. Rambo v. Bank, 88 Kan. 257, 128 Pac. 182, relied on by the bank, does not support its contention that the acceptance must be in writing, for there the bank cashier orally stated a check would be good on presentation, but when the check was later presented refused to pay, as the drawer’s credit with it was fraudulently procured. The question of receipt of the check and its retention in the bank for a period of twenty-four hours was not in that case and was not discussed.
Insofar as the bank contends that its payment into justice court by reason of garnishment proceedings is a defense is concerned, it may be noted that if the above order to pay was binding on the bank, then when it answered in the justice court that it had money belonging to Grannell it simply misconceived the legal situation as. applied to the facts. Mendell was not a party to the suit in justice court, and under familiar principles of law is not bound by the judgment there rendered.
So far as the abstract shows the proceedings in the justice court, the bank’s answer in garnishment did not disclose Mendell’s claim to the money. By a nunc pro tunc order the justice of the peace found that the bank made known to that court that Mendell claimed the fund, and that court found the assignment was not legally accepted by the bank. Just how that finding could affect Mendell is not made to appear. The justice code (R. S. 61-1501) makes provisions of the civil code applicable under certain circumstances, and under the civil code (R. S. .60-953) provision is made that where any person other than the defendant claims the property in the hands of the garnishee, such claimant may be interpleaded. If the bank, as garnishee, wished to protect itself against Mendell’s claims, of which it was obviously aware, there was a way it could have been done. When it did not do so it is not in a position now to assert that Mendell is bound by what happened in the justice court in a suit in which he was not a party.
And finally, the bank argues that it was an ultra vires act for the bank to accept the bill of exchange, citing Ingersoll v. Bank, 110 Kan. 122, 202 Pac. 837, in which it was held:
“A bank organized under the laws of this state has no authority to accept a bill of exchange payable at a future date, and if the cashier of a bank makes such an acceptance the bank cannot be held liable thereon where it does not receive any consideration therefor and does not realize anything out of the transaction.” (Syl. IT 1.)
Assuming again that the order in the case at bar was a bill of exchange, there is no doubt but that it was paid by the drawer by the sale of the mortgaged property, and that the bank received the consideration, a portion of which it retained for “costs and expense.” Having received the consideration and retained a portion of it, the bank cannot now say it had no power to take the order to pay, or that having received the moneys of the drawer with which to pay it, that it was beyond its power so to do. As was said in Hutchinson Wholesale Grocery Co. v. Hudson State Bank, 135 Kan. 374, 11 P. 2d 277:
“It is a well-established doctrine that a principal cannot repudiate the authority of an agent and invoke the rule of ultra vires where the principal has accepted and retains the benefits of the transaction. He cannot repudiate the authority of the agent and at the same time ratify the agent’s authority by receiving and keeping the benefits of the unauthorized act. (Means v. Bank, 97 Kan. 748, 156 Pac. 701, and cases cited. See, also, Nation v. Clay, 125 Kan. 735, 266 Pac. 45; Rife v. Docking, 129 Kan. 812, 284 Pac. 391.)” (p. 377.)
See, also, Saylors v. Bank, 99 Kan. 515, 163 Pac. 454. Mendell urges that the order to pay was not a bill of exchange, and it may be conceded that as pleaded it does not clearly appear that the instrument in question had all of the elements of a bill of exchange as defined in R. S. 52-1001. As the bank has elected to stand on the order as being a bill of exchange and on that basis is not entitled to a reversal, we need not consider the matter further.
It does not appear that the trial court erred in rendering judgment in favor of Mendell and against the bank, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff, a taxpayer of school district N'o- 30, in McPherson county, brought this action under authority of R. S. 60-1121 to enjoin an alleged illegal tax levy which the defendant county clerk was about to spread on the tax rolls of the school district.
The pertinent facts were these: At the annual meeting'held on May 31, 1935, the school-district electors adopted a budget for the ensuing year beginning July 1,1935, and ending June 30, 1936. An itemized budget for teachers’ salaries, fuel, supplies, 'etc., totaling $7,218.50, was prepared, and a statement of cash on hand, $491.21, and a balance of $2,508.41 in hands of county treasurer was appended. This budget was transmitted to the county clerk on a form prescribed by the state tax commission, accompanied by a certificate that a levy to raise $7,000 would be required.
Pursuant to a method prescribed by the state tax commission and on a printed form prepared by it, the county clerk set down some of the budgetary figures of the school district, together with some. figures from his own records and perhaps those of the county treasurer, and made an independent calculation as to the amount of money the school district would require, and concluded that the district’s budgetary needs would be sufficiently met by a levy which would raise $5,757.02 instead of the $7,000 as certified by the school district.
Plaintiff’s cause of action was predicated on the assumption that the county clerk’s calculation was based on an unauthorized and erroneous theory; that according to the budgetary requirements of the district and the amount of cash on hand and in the county treasury to the district’s credit a levy to raise $1,896.61 would be sufficient; and that the proposed levy to raise $5,757.02 was illegal and excessive and should be enjoined.
The school district was not impleaded in the action. The county clerk joined issues on plaintiff’s petition by a general denial.
The cause was tried by the court without a jury. No dispute of fact was developed. Exhibits of the district’s budget and of the county clerk’s method of calculating the required sum to be raised by taxation were in evidence. The latter, somewhat abridged, reads:
“County Clerk's Form
[Prepared by the state tax commission]
“Turkey Creek (common) school district No. 30, McPherson county, Kansas.
“general fund
“Requirements:
“2. Amount of budget adopted for period 7-1-35 to 6-30-36 as certified by district...................................... $7,218.50
“3. Amount needed to maintain school 7-1-36 to 12-31-36 (not to exceed 50% of line 2) ................................ 3,609.25
“6. Total requirements, 5-1-35 to 12-31-36 ................... $10,827.75
“Revenues:
“7. School-district treasurer’s balance, 4-30-35 ................ $491.81
“8. County treasurer’s balance, 4-30-35 ...................... 4,070.37
“9. Total amount of 1934 ad valorem tax levied (including intangible and dog tax) ................................... 7,281.14
“10. Less 5 percent for delinquent taxes ...................... 364.06
“12. Less: Taxes apportioned by county treasurer ............ $6,349.33
“13. Total deductions........................................ 6,713.39
“14. 1934 tax in process of collection, 4-30-35 .................. 567.75 Receipts from other sources, 5-1-35 to 12-31-36.
‘T9. State and county aid (3 apportionments)................. §200.00
“20. Intangible tax (1935) ................................... 35.23
“21. Dog tax (1935) ......■................................... 60.00
“23. Back tax collections (estimated).......................... 120.00
“26. Total revenue available, 5-1-35 to 12-31-36................ §5,545.16
“27. Net 1935 tax requirements (line 6 above minus line 26).... 5,282.59
“28. Add 9 percent of line 27 for delinquent taxes.............. 475.43
“29. Total 1935 ad valorem tax requirements.................. 5,757.02”
Plaintiff’s estimate of the district’s requirements were predicated on the following:
“2. Amount of budget adopted for period 7-1-35 to 6-30-36 as certified by district .................................... $7,218.50
“26. Total revenue available 5-1-35 to 12-31-36 .............. 5,478.49
“27. Net 1935 ad valorem requirements...................... 1,740.01
“28. Add 9 percent of line 27 for delinquent taxes............ 156.60
“29. Total 1935 ad valorem tax requirements ................ 1,896.61”
The trial court adopted plaintiff’s calculations in toto, gave judgment in his favor, enjoined the extension of any levy on the tax rolls intended to raise any greater sum than $1,896.61, and particularly enjoined any levy designed to raise any money to pay the expenses of the school district for the period July 1,1936, to December 31, 1936.
Defendant appeals, suggesting first that no judgment prejudicial to the fiscal affairs of the school district should have been made without the latter being a party to the action. This point might be good if it had been raised below, but the record shows nothing of the sort. The same short answer must be made to the argument that the county clerk was hot authorized to reduce the district’s certified financial requirement of $7,000 to the sum of $5,757.02 as calculated by him.
Coming to the question at issue: Did the county clerk’s method of calculating the district’s levy requirement vitiate his conclusion that a tax levy to raise $5,757.02 should be spread? The method and form used by the county clerk were prescribed by the state tax commission. That tribunal took into account the fact that the school year does not coincide with the fiscal year, and that the expenses of the first few months of each school year are met — and by operative necessity must be met — from the balance of funds carried over from the taxes collected the preceding year.
There is nothing in the budget law which requires that the school-district treasury shall have no cash on hand at the close of the fiscal year. Indeed, the statute contemplates the contrary. R. S. 1933 Supp. 79-2934, in part, directs—
“Any balances remaining in any fund at the end of the current budget year shall be carried forward to the credit of said fund for the ensuing year.”
The balances are to be “carried forward,” not-necessarily to be used to reduce the budgetary estimates for the ensuing year to such a degree that it cannot function normally as the cash-basis law contemplates and- as common sense would suggest. In State, ex rel., v. Peal, 136 Kan. 136, 13 P. 2d 302, it was said:
“A tax levy, within the limits of the statute, is not void because a larger amount is levied than actually required, unless the amount is so grossly excessive as to show a fraudulent purpose in making the levy.” (Syl. If 2.)
In R. S. 1933 Supp. 10-1120 the cash-basis law provides:
“The levying of a tax by any municipality (which includes a school district [R. S. Supp. 10-1101]) which raises more money than is used or needed for the tax year shall not be the basis of a protest by any taxpayer and all such protests shall be of no force or effect.”
See, also, Kaw Valley Drainage Dist. v. Zimmer, 141 Kan. 620, 42 P. 2d 936.
The case comes down to this:
There is no provision of statute directing the method by which the county clerk shall make his calculations, but it is quite proper and desirable that a method which should be both uniform and practical for use by county clerks be prescribed by the state tax commission. Such was the method used by the county clerk. It may be conceded (although it need not be decided) that the specific method prescribed by the state tax commission and used by the county clerk to determine the requisite levy — the year’s estimated expenses plus half the next year’s estimated expenses, less the cash on hand and in sight — is not authorized by the statute. What follows? The school district did not arrive at its budgetary estimate by the method complained of and held illegal by the trial court. Its schedule of anticipated financial requirements, totaling $7,218.50, conformed precisely with every provision of law, and it was acting within its privilege and discretion when it certified that it could get along with a levy to raise $7,000.
Now, if the method 'of the county clerk be ignored entirely, it is quite apparent that he did his duty under the law — so far as this complaining taxpayer is concerned, at least — when he checked the school district’s figures and found that they did not violate the statute, which says:
"The county clerk shall not extend a levy in any common-school district . . . which will raise an amount in excess of that portion of said budget to be derived by said tax levy or which will exceed the maximum levies prescribed by law.” (R. S. 1933 Supp. 79-2931.)
It is not contended, and cannot be, that the sum arrived at by the county clerk, $5,757.02, for which a levy was to be spread on the tax rolls of the district, was not within the limitations of the pertinent statute; and the process by which he arrived at that amount is no concern of the plaintiff taxpayer, seeing that he is only authorized by the statute (R. S. 60-1121) to maintain an action to enjoin an illegal levy. Clearly the proposed levy is not of that character.
Another reason why some of the justices of this court cannot approve the judgment of the trial court may be added here. The constitution contains a mandate to the legislature to establish, encourage and maintain a system of public schools. (Art. 2, § 23; art. 6, § 2.) This mandate has been loyally executed from the foundation of the state. The cash-basis law of 1933 is intended to put the financial affairs of the common schools upon a solid foundation — upon a pay-as-you-go basis. The judgment of the trial court completely defeats that legislative purpose. If the injunction complained of were permitted to stand, school district No. 30 could not possibly maintain a school and pay the expenses thereof in conformity with the cash-basis law during the autumn of 1936.
The judgment of the district court is reversed, and the cause remanded with instructions to dissolve the injunction and to enter judgment for defendant. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to enforce an alleged contract between plaintiff’s mother and her brother and his wife, all three of whom are now dead, under the terms of which plaintiff laid claim to all of the considerable estates of his deceased uncle and aunt.
Plaintiff’s petition alleged that in 1892 he was a minor and school boy in Belgium, that his mother was a resident of Germany, and that she had loaned large sums of money to her brother, Joseph Groll, who had emigrated to America and had become a resident of Topeka and had married there.
Plaintiff alleged that Joseph Groll and his wife, Susan J. Groll, were childless, and in 1892 they wrote and mailed a letter to plaintiff’s mother in Germany, in which they stated that if she would send plaintiff to them in Topeka and he would render them the service and duty of a son until he attained his majority they would leave him all their property at their deaths.
Plaintiff alleged that his mother received that letter and accepted the offer therein contained, and took plaintiff out of school in Belgium and sent him to Groll and wife in Topeka, and that he rendered unto them the dutiful obedience of a son until he became of age; and that he later married and went into business for himself with the approval and good will of his foster parents, who were likewise his uncle by consanguinity and his aunt by affinity.
The petition further alleged that in 1926 Joseph and wife made a joint and mutual will, in which each devised to the survivor of them all of their property with power of disposition, but if the survivor should make no later disposition all their property, of which there was a considerable and varied amount in lands, bonds, cash and miscellaneous assets, located in Kansas, Missouri, Texas, and Illinois, should pass by devises and bequests to certain named beneficiaries. Two executors were nominated in the will, Mrs. Tillie Holtwick Acker and Harry R. Logan, both of Topeka. The original petition, without sufficient definiteness, alleged the death of Joseph Groll and that the joint and mutual will of Joseph and Susan was never probated, but that the will and codicils of Susan were filed for probate on the blank day of blank, 1933; but on motion of de fendants plaintiff was required to amend his petition in certain particulars; and in conformity thereto he alleged that the will and its codicils (the codicils being made by Susan after Joseph’s death) were admitted to probate on April 22, 1933.
On May 11, 1934, this action was begun, and the plaintiff’s claim to the estates of Joseph and Susan were predicated on the facts summarized as above. In the action, the defendants first brought in were all or several of the beneficiaries named in the will. The executors were not named as defendants, nor were they served with process, although the petition alleged—
“That Tillie Holtwick Acker and Harry R. Logan, named as executors of said will, were appointed and qualified as such executors and the said Tillie Holtwick Acker and Harry R. Logan as such executors are now in the course of settlement of such estate under such will, and that the devisees and beneficiaries named in said will and especially in the codicils thereof are asserting to be the owners and claiming said property .according to the terms and conditions of said will and under and by said will, and the said executors are claiming the right to control said property by reason of said will.”
On September 27, 1934, two of the defendant beneficiaries, Anna Johnson and Mrs. Freda Rading, filed a demurrer to the amended petition. This was sustained on October 6, 1934, and the cause dismissed as to them.
On behalf of certain other defendant beneficiaries and of the two executors also, a demurrer was likewise filed, in which the statute of limitations was specifically pleaded, and on October 6, 1934, was sustained.
On October 20, 1934, a demurrer filed on behalf of another defendant was similarly sustained.
On the same day, October 20, 1934, plaintiff, by his attorneys of record, stated 'that he desired to and did confess certain of the foregoing demurrers, but the record does not discriminate between them.
Thereafter certain of the individual defendants and the executors filed a motion for judgment; and on November 14, 1934, attorneys for plaintiff confessed this motion, and judgment was accordingly entered in favor of defendants or of the moving parties at least. This ‘concluded the litigation in the trial court, and the costs were taxed to plaintiff.
Plaintiff appeals, assigning error on the trial court’s ruling on the several demurrers. Since his counsel confessed some of these demurrers under circumstances which might justify an inference that he was acquiescing in all of the rulings pertaining thereto, the question whether he has anything on which an appeal can be predicated logically intrudes. But since the trial court’s rulings were obviously based upon the provisions of R. S. 1933 Supp. 22-222, 22-223, and can be as shortly and effectively disposed of on the merits as on the procedural question, we need only direct attention to the statute, the parts of which material here provide:
“If no person interested or claiming to be interested shall appear within one year from the time of the making of any order by a probate court, probating or refusing to probate the will and contest the same, such order shall be forever binding, . . .” (R. S. 1933 Supp. 22-222.)
“The mode of contesting a will after probate, or an order of the court refusing to probate the will, shall be by civil action in the district court of the county in which the will was admitted to probate or the order of the court refusing to probate was made, which action may be brought at any time within one year after the probate or the order of the court refusing to probate the will, and not afterwards: . . .” (R. S. 1933 Supp. 22-223.)
The will, with its codicils, in this case was admitted to probate on April 22, 1933, and as it was neither assailed directly nor indirectly in the probate court or the district court until this action was begun on May 14, 1934, it would seem that the statute just quoted would bar the action.
Counsel for plaintiff, however, make the contention that this action is not one to contest the will — that such a contest would only be concerned with its formalities, the capacity of the testators, and possible questions of undue influence, with none of which matters plaintiff is concerned. However, the statute which authorizes the contest of a will does not confine the grounds of such contest within such narrow limits. Any cause of action which a pleader can set down on paper which, if established, would necessarily render a will nugatory, is a contest of the will and must be brought within the time allowed by the statute above quoted. All this is stare deaisis in this jurisdiction, since it was authoritatively and deliberately so declared in the thoroughly contested case of Rishel v. McPherson County, 122 Kan. 741, 253 Pac. 586; id. 123 Kan. 414, 255 Pac. 979; id. 124 Kan. 31, 257 Pac. 939. Pertinent excerpts from the main opinion in that case read:
“There was no pretense that the will might stand as a valid instrument, and that plaintiff might nevertheless recover. She was obliged to get rid of the will, . . . Therefore, it is a mere play on words for plaintiff to say she is not contesting the will.” (p. 751.)
“To state the contention is to state a ground for contest of the will. Probate establishes prima facie not merely due execution and attestation, but validity of a will. (R. S. 22-224.) The purpose of contest is to establish invalidity. The statute does not specify or limit grounds of contest. The cause of action may be anything which may be urged as destroying validity. Anyone having an interest may, within the statute period, propose grounds of contest. After that period has elapsed, he has no more privilege to contest a will than he would have if he were originally a stranger having no interest.” (p. 753.)
“The statute of' wills was designed to prevent barratry and to give security to title derived by will. The statute provides for establishing a will by a proceeding in rem (Pee v. Carlyle, 120 Kan. 200, 202, 243 Pac. 296), which concludes the world with respect to validity of the will, unless some person claiming an interest appears within two years and contests it by civil action in the district court. The time limitation is now one year. (Laws 1925, eh. 160; citations.)” (p. 751.)
“The result is, whoever seeks to impair the effect of a will to vest title to the testator’s property in his legatees or devisees, by denying its validé, finds both his right and his remedy in the statute, or not at all.” (p. 752.)
While some courts hold that statutes which grant the right to contest a will and prescribe the time in which such right may be invoked are not statutes of limitation, the supreme court of Montana and some others say they have the same effect. (In re Estate of Murphy, 57 Mont. 273; 68 C. J. 950.) Without such a statute, no such action could be maintained, and of course it must be brought within the time allowed. In the Case of Broderick’s Will, 88 U. S. 503, 22 L. Ed. 599, the often quoted observations of Mr. Justice Bradley in respect to the desirability that the devolution of property of deceased persons shall be promptly settled are quite pertinent in the case at bar:
“The constitution of a succession to a deceased person’s estate partakes, in some degree, of tlie nature of a proceeding in rem, in which all persons in the world who have any interest are deemed parties, and are concluded as upon res judicata by the decision of the court having jurisdiction. The public interest requires that the estates of deceased persons, being deprived of a master, and subject to all manner of claims, should at once devolve to a new and competent ownership; and, consequently, that there should be some convenient jurisdiction and mode of proceeding by which this devolution may be effected with least chance of injustice and fraud; and that the result attained should be firm and perpetual. The courts invested with this jurisdiction should have ample powers both of process and investigation, and sufficient opportunity should be given to check and revise proceedings tainted with mistake, fraud, or illegality. These objects are generally accomplished by the constitution and powers which are given to the probate courts, and the modes provided for reviewing their proceedings.” (p. 509.)
Counsel for appellant apparently draw the erroneous inference that the case of Burger v. Pasley, 133 Kan. 208, 299 Pac. 608, has minimized the potency of Rishel v. McPherson County. By no means. In the Burger case the question of the timeliness of the action was not involved or was not raised. The plaintiff’s claim, although established, did not completely overthrow the will of Lydia Knowles. So, too, in Ross v. Ross, 139 Kan. 316, 31 P. 2d 718, plaintiff’s claim was only for a specific part of the estate devised by the will, and if the claim had been sustained the will would not thereby have been completely nullified. Moreover, in neither of these later cases was the statute, R. S. 1933 Supp. 22-223, invoked or discussed. In the specially concurring opinion in Ross v. Ross, Mr. Justice Smith, without citing Rishel v. McPherson County, cited the same statute which controlled that case, and he would have held that it similarly should control Ross v. Ross. The majority of the court did not disagree with that view, but preferred to leave that point open, since the appeal could as effectively be disposed of without considering the applicability of the statute to a case where only part of the estate was claimed adversely to the disposition of it under the will.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, C. J.:
The action was one for damages for injury to real estate, resulting from erection and operation of a station for storage, in bulk, of gasoline, oil and other petroleum products. The verdict and judgment were for plaintiff in the sum of $400. Defendant appeals.
In the city of Pittsburg is a block numbered 25 on the original plat. It is bounded on the east by Joplin avenue, on the north by Fourth street, on the west by Elm street, and on the south by Third street. The north portion of the block is occupied by two principal switch tracks of the St. Louis and San Francisco Railway Company, extending east and west. In the northwest portion of the block are switch connections between the two principal tracks, and a switch track branches to the south from the south principal track.
The Marathon Oil Company leased from the railroad company a part of lot 23, and lots 24 and 25 in block 25, and in July, 1931, erected on the leased lots the bulk-storage station which has been referred to, consisting of a warehouse, a pump house, and three large storage tanks, all inclosed in a high wire fence. The storage station abuts on the east on Joplin avenue, and on the north on the south switch track.
F. H. Hughes owns lot 26 of block 25, which adjoins the Marathon leasehold and fronts on Joplin avenue. Many years ago he built a one-story, three-room, frame house on the lot, which he subsequently enlarged until it contains six rooms and a pantry. It is called a seven-room house, and has a porch. North of the seven-room house, and fronting on Joplin avenue, is a two-room house. West of this is another two-room house. These houses were built long before the storage station was erected. The two-room house on the front of the lot is thirty-five feet from the storage station warehouse.
Plaintiff’s houses were designed for dwellings, but all of them, as well as the storage station, are in an industrial district created by a zoning ordinance of the city in 1926. There are numerous industrial buildings and structures in the neighborhood, including an electric company’s transformer station, the bulk-storage station of the Standard Oil Company, an automobile wrecking station and junk yard, the structures of an elevator company, of a milling company, •of a wholesale poultry company, and of other industries. A witness for plaintiff testified the district is not a residence district and is a bad district. Joplin avenue in front of plaintiff’s houses is not paved. There is no sidewalk in front of plaintiff’s houses. No one of them is modern.
■The petition alleged that gasoline fumes escaped from defendant’s station and tainted and corrupted the atmosphere with noxious and offensive smells until his dwelling houses were unhealthy and unfit for occupation, and it was impossible for plaintiff to secure desirable tenants.
Plaintiff testified he visited his houses frequently. He'said:
“You can smell them [fumes] very plainly at times.
“If I paid any attention to it, you could smell the odor of gasoline.
“Every time I was over there, I thought I smelled gasoline.”
He said he did not know whether he could smell gasoline when the wind was in the south.
Plaintiff did not call any present or former tenant as a witness to show how he suffered from gasoline fumes. Defendant produced two. One, together with his wife, had lived in the two-room house nearest to defendant’s storage station for about two years and had never noticed any fumes. They had not kept him awake, nor made him sick, and he had never noticed any fumes at all. The other tenant occupied the seven-room house with her son, who was fourteen years old. She had never been bothered with noxious or disagreeable fumes from defendant’s storage station. She could smell fumes when they were filling trucks, but she could not tell whether they came from the Marathon plant or the Standard Oil plant. She had lived in the house ever since the bulk station was built', except for one month. After being away for one month, she returned voluntarily.
The petition alleged that because of proximity to defendant’s storage station, plaintiff could not keep his houses insured against fire. The proof was that the rate on the little house next to defendant’s plant had been raised twenty-four cents per $100.
Plaintiff testified to reductions in rent which he said he had been ' obliged to make after the storage station was built. Except by utterly unparticularized and indefinite statements, he did not connect reduction of rent with presence and operation of defendant’s plant.
The jury returned answers to special questions. The second, third and fourth findings read:
“2. What rental did the plaintiff receive from the two-room house on the front of .plaintiff’s lot immediately before the erection of the bulk plant? A. $6.
“3. What rental did the plaintiff receive from the two-room house on the front of his lot immediately after the erection of the bulk plant? A. $3.50.
“4. What rental does the plaintiff now receive from the two-room house on the front of his lot? A. $2.50.”
There was no testimony that immediately before the storage station was erected, plaintiff rented this house for $6 per month. Plaintiff testified that a man lived in the house for several years who paid $8 per month. The man died before the storage station was built. At the time the storage station was built the house was empty quite a bit. He thought that at the time the storage station was built a woman with two children was living there — he could not remember — and she did not stay long. He made no statement with respect to what rent she paid, or who succeeded her, or what rent her successor paid.
The jury returned the following special findings:
“5. What rental did the plaintiff receive from the seven-room house on the front of his lot immediately before the erection of the bulk-storage plant? A. $12.
“6. What rental did the plaintiff receive from the seven-room house on the front of his lot immediately after the erection of the bulk-storage plant? A. $8.
“7. What rental does the plaintiff now receive from the seven-room house on the front of his lot? A. $8.”
Plaintiff testified that in normal times he used to get $12 or $15 per month for this house and was getting $12 “just prior to the time the station was built.” Josephine Mack was occupying this house at the time of the trial. Plaintiff testified she paid $8 per month when she moved into the house. She testified she moved into the house before the storage station was built, and paid $8 per month when she moved in. She had occupied the house continuously from the time she first moved in,' except for one month. Plaintiff did not, on rebuttal, dispute this testimony.
Special findings 8, 9 and 10 read as follows :
“8. What rental did the plaintiff receive from the house on the back of his lot immediately before the erection of the bulk-storage plant? A. $5.
“9. What rental did the plaintiff receive from the house on the back of his lot immediately after the erection of the bulk-storage plant? A. $2.50.
“10. What rental does the plaintiff now receive from the house on the back of his lot? A. $2.50.”
There was no testimony plaintiff received $5 per month for this house immediately before the storage station was built. Plaintiff testified he used to get $5 or $6, would take $5 if he could not get $6, and he did not remember whether anyone was living in the house when the storage station was built. Before the station' was built, a man lived in the house for about two years, but paid no rent. He was supposed to pay $5 per month. He did not pay, and he was allowed to live there because the other houses were vacant.
Plaintiff qualified as an expert witness respecting value of real estate in Pittsburg. He said that just before the storage station was built his lot was worth $2,500, and after the station was built the value was $1,000. An expert witness for plaintiff testified that in the latter part of 1930 or early part of 1931 the lot was worth $1,500. Construction of the Marathon Oil Company plant decreased the value as residence property twenty-five percent or fifty percent, or from $1,500 to $750, perhaps $1,000.
The foregoing is presented as a background for the single question of law which the court proposes to notice. It shows the verdict and judgment rest on a cause of action sought to be established which accrued immediately following erection of the storage station.
The station was completed in July, 1931, and anybody could see. it was a permanent structure. It was lawfully located in the appropriate zone, pursuant to certificate of the city clerk duly issued. Plaintiff produced no evidence that the station was defectively constructed, and the only evidence on the subject was that it was constructed according to the latest and most advanced methods.
The petition was filed March 21, 1934. The nature of the action was not clear from the allegations of the petition. Defendant filed a general denial, and pleaded certain facts, including proper location and great care in operation of the station. At the trial the attorney for plaintiff disclaimed there was any negligence or want of care in operation of the station. This was the first certain indication of the precise theory of the action, and at the close of plaintiff’s evidence defendant interposed a general demurrer.
Application of the two-year statute of limitations is obvious. The latest expression of the court on the subject is the opinion in the case of McMullen v. Jennings, 141 Kan. 420 (March 9, 1935), 41 P. 2d 753, in which authorities are reviewed. The demurrer should have been sustained.
The judgment of the district court is reversed, and the cause is remanded with direction to set aside its judgment, and to sustain defendant’s demurrer to plaintiff’s' evidence. | [
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The opinion of the court was delivered by
Holmes, C.J.:
This is an action for personal injuries sustained when Darrell W. Boulanger (plaintiff/appellant) was shot by Ron Hill 10 days after Ron was discharged from an intermédiate health care facility. Plaintiff appeals from the decision of the trial court granting summary judgment to Dr. P. Albert Pol and Applewood Care Center, Inc. (defendants/appellees). Plaintiff argues the defendants were negligent in releasing Ron. Additionally, plaintiff argues the defendants assumed care of a dangerous person and had a duty to warn him of Ron’s discharge or to detain and commit Ron. The case was transferred from the Court of Appeals pursuant to K.S.A. 20-3017 and Kansas Supreme Court Rule 8.02 (1994 Kan. Ct. R. Annot. 46). We affirm.
The facts will be set forth in some detail. Darrell Boulanger is the uncle of Ron Hill. As a result of a brain injury sustained while a teenager, Ron has suffered from physical and mental disabilities. In the late 1980’s, Ron became preoccupied with religion and believed plaintiff was the devil incarnate.
In November 1989, Ron drove to plaintiff’s home and physically assaulted him. Following the incident, Ron voluntarily admitted himself to Coffeyville Regional Medical Center (CRMC) under the treatment of Dr. Cantwell. Almost two weeks later, he was discharged to his parents’ care.
In February 1990, Ron was again voluntarily hospitalized at CRMC due to suicide threats. While at CRMC, Ron made no statements or threats toward plaintiff. Despite Dr. Cantwell’s recommendation that Ron be placed in a structured environment, Ron was discharged and returned to his parents’ home. Several weeks later, Ron’s father asked Ron to help move furniture to plaintiff’s home. After assaulting his father, Ron attempted to stab himself. Following the incident, Ron was voluntarily admitted to CRMC for the third time. While at CRMC, Ron made no statements or threats toward plaintiff. On April 5, 1990, at Dr. Cantwell’s suggestion, Ron was transferred to Applewood Care Center, Inc. (Applewood). Ron’s admission to Applewood was voluntary.
At the time of his discharge from CRMC, Dr. Cantwell did not believe Ron was dangerous to himself or others if he took his medication and was in a structured setting. The purpose in transferring Ron to Applewood was to provide a structured environment away from home, daily medication monitored by a psychiatrist, and training in independent living skills. The eventual plan was for Ron to go to a special facility for victims of head injuries when space became available.
Applewood is an intermediate care facility for the mentally ill, but is not a mental health treatment center. Applewood provides residents a place to live, monitored medication, training in independent living skills, and a stable and structured environment. Applewood is not equipped to deliver intensive psychotherapy and does not accept dangerous residents.
Dr. P. Albert Pol, a psychiatrist, was Applewood’s medical director and Ron’s primary care physician during his stay at Apple-wood. Dr. Pol was an independent contractor of Applewood. Dr. Pol met with Ron once per month while he was at Applewood.
While at Applewood, Ron was monitored for evidence of continuing homicidal and suicidal ideation, but did not exhibit any such behavior. Ron never indicated an intention to harm plaintiff, his father, or himself, nor did he refer to his uncle as Satan. Further, Ron’s parents did not report any threats of violence to plaintiff or Ron’s father when he was home for visits. Ron told his mother during one visit that he loved plaintiff and would hug and kiss him if he could come home.
On August 10,1990, either at the request of Ron and his parents, or upon Dr. Pol’s own volition, Ron was discharged to the care of his parents. Dr. Pol was solely responsible for the discharge; Ap plewood was not involved in the discharge decision. Plaintiff’s expert agreed that the nursing and paraprofessional staff of Apple-wood was not at any time in a position to decide that Ron needed to be committed.
Plaintiff became aware of Ron’s violent tendencies after Ron attacked him in November 1989. On August 20,1990,10 days after Ron’s discharge, plaintiff went out of town with Ron’s father on business. Upon their return to the Hills’ home, Ron’s father invited plaintiff inside. Plaintiff was reluctant to enter because he knew Ron was back home and he wanted to avoid him. Despite his extreme reluctance, Ron’s father persuaded him to enter. Ron visited with plaintiff awhile and left the room. Plaintiff became apprehensive and attempted to leave, but Ron’s father insisted he stay, and a few minutes later, Ron returned with a shotgun and shot plaintiff.
Based on this incident, the State brought criminal charges against Ron for aggravated batteiy, and at trial a jury found him not guilty by reason of insanity. Plaintiff then brought a civil suit against numerous defendants, including CRMC and Dr. Cantwell. Plaintiff has settled with all defendants except Dr. Pol and Apple-wood.
Plaintiff asserted Dr. Pol and Applewood were negligent in releasing Ron. Additionally, plaintiff claimed the defendants had assumed care of a dangerous person and owed plaintiff a duty to warn of Ron’s discharge and the dangers that created or, alternatively, to detain and commit Ron.
Following voluminous discovery, including at least a dozen depositions Dr. Pol and Applewood filed motions for summary judgment. The trial court granted the motions, and plaintiff has appealed. In ruling on the summary judgment motions, the trial court found the following facts and conclusions of law:
“1. This is a medical malpractice claim brought by plaintiff Darrell W. Boulanger, against Dr. Albert P. Pol [sic] and Applewood Care Center, Inc.
“2. Plaintiff Boulanger is the uncle of Ron Hill. Wilbur and Christine Hill are Ron’s parents. The plaintiff was quite close to the Hills.
“3. Ron Hill, while a teenager, suffered a brain injury resulting from two separate motorcycle accidents and has had resulting physical and mental disabilities.
“4. In the middle-1980’s, Ron Hill developed a delusion with respect to his uncle, plaintiff Darrell Boulanger, believing that he was Satan.
“5. Throughout the 1980’s, plaintiff Boulanger and Ron Hill had occasional contact with no apparent difficulties in terms of physical acts, until November, 1989, when Ron Hill drove to his uncle’s house and assaulted him.
“6. As a result of this altercation, Ron Hill was voluntarily hospitalized at Coffeyville Regional Medical Center under the care of Dr. Cantwell, formerly a defendant in this case.
“7. Ron Hill was subsequently dismissed to his home and was re-admitted in early 1990 after making threats concerning his sister.
“8. Ron Hill was treated again at Coffeyville Regional Medical Center by Dr. Cantwell and again dismissed to his home. No statements or threats were made during this stay by Ron Hill against plaintiff.
“9. Subsequently, on March 31, 1990, Ron Hill had an altercation with his father, in which he physically assaulted the father and superficially cut his own chest with a knife.
‘TO. As a result of this, Ron Hill was hospitalized again at Coffeyville Regional Medical Center again under the care of Dr. Cantwell. Again, no threats were made by Ron against plaintiff.
“11. At the suggestion of Dr. Cantwell, Ron Hill was transferred to Applewood in April, 1990.
“12. Ron Hill was transferred to Applewood to allow him to be in a structured environment and to assist him with his activities of daily living so as to allow him to five independently.
“13. It was not intended that Ron Hill would receive psychotherapy or mental health counseling at Applewood, as it was not designed to provide that type of care. Plaintiff’s expert acknowledged these facts.
“14. Applewood is not a mental health treatment center. It is a nursing home in the category of an Intermediate Care Facility — Mental Health. Applewood has patients which suffer from some mental impairment, but Applewood is not equipped to engage in mental health treatment.
“15. Throughout his stay at Applewood, Ron Hill was monitored for evidence of continuing homicidal or suicidal ideation and the consistent observation was that he did not exhibit any such behavior.
“16. During his stay at Applewood, Ron Hill went home on several visits, and there was no indication given by the parents that Ron Hill’s behavior while there showed any continuing homicidal or suicidal thoughts.
“17. Ron Hill’s mother has testified in this case that when Ron was at home, he at various times expressed that he no longer felt ill will toward Darrell and that he would ‘kiss’ Darrell if his parents would agree to allow him to come home.
“18. Throughout his stay at Applewood Care Center, Inc., Ron Hill was a voluntary patient and was not in custody. Applewood did not accept dangerous patients.
“19. Ron Hill was discharged from Applewood on August 10, 1990, with prescriptions for medication, to the home of Wilbur and Christine Hill.
“20. Dr. Pol, either at the request of Ron Hill’s parents and Ron himself, or on his own volition, determined that Ron Hill should be discharged. Applewood itself was not involved in the decision-making process about the discharge.
“21. Between April 5, 1990, and August 10, 1990, Ron Hill made no threats relative to Darrell Boulanger.
“22. Ron Hill had never been declared incompetent legally.
“23. From the information available to plaintiff’s expert, Dr. Lacoursiere, he would not say that at any time the nursing or paraprofessional staff of Applewood were in a position to make a decision that Ron Hill needed to be committed.
“24. On August 20,1990, Ron Hill shot his uncle, the plaintiff, Boulanger, with a shotgun.
“CONCLUSIONS OF LAW
“1. Summary judgment is proper where there are no material questions of fact.
“2. Here there are no material questions of fact.
“3.1 am persuaded that the view of each of the remaining defendants is correct:
A. Plaintiff has no standing to file this action.
B. The defendants had no duty to warn third parties of Hill’s dangerous propensities.
C. The release by Dr. Pol and by Applewood of Hill was not negligent, as a matter of law.
D. Under the facts, neither Dr. Pol or Applewood had a duty to commit Mr. Hill.
E. Applewood was not a facility designed to protect anyone from patients.
“4. Durflinger and McGee both preclude the plaintiffs from recovery.”
On appeal the plaintiff asserts three issues:
1. Does the cause of action for negligent release recognized in Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983), apply to voluntary patients?
2. Do defendants have a duty to plaintiff under Restatement (Second) of Torts § 315 (1965)?
3. Do material issues of fact preclude summary judgment?
The basic theory of the plaintiff on appeal is that Dr. Pol and Applewood were negligent in releasing Ron Hill to the care and custody of his parents. The principal arguments in support of plaintiff’s negligent release theory are that the defendants had a duty to legally commit Ron to involuntary treatment and care or to warn plaintiff of his release and that he was a danger to plaintiff.
Our standard of review and the general rules pertaining to summary judgment have been stated repeatedly. In Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994), we summarized them as follows:
“The burden on a party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply the same rale, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.”
In addition to alleging material issues of fact exist, plaintiff presents two legal theories in support of his claim that the trial court erred in granting summary judgment against him. First, plaintiff argues the cause of action for negligent release recognized in Durflinger v. Artiles, 234 Kan. 484, applies to voluntary patients as well as involuntary patients. Plaintiff asserts the duty in Durflinger was based on the physician-patient relationship; thus, a cause of action for negligent release applies to both voluntary and involuntary patients. Alternatively, plaintiff urges this court to impose a duty on defendants based on the special relationship analysis in Restatement (Second) of Torts § 315.
Dr. Pol, Applewood, and amicus curiae Kansas Medical Society argue that the duty imposed in Durflinger is properly limited to those patients who have been determined to be a danger to themselves or others in an involuntary commitment proceeding and should not be extended to patients seeking voluntary treatment.
The record before us is voluminous, consisting of approximately 850 pages plus two exhibits. Unfortunately, of the dozen or more depositions taken during discovery, the parties have selectively culled individual pages for inclusion in the record. While various statements in these selected pages are relied upon to support the arguments and allegations of the parties, in most instances the context and overall impact of the statements is difficult, if not impos sible, to ascertain. As a result, the meager deposition testimony which has been included in the record is of questionable assistance at best.
A cause of action for negligent release was first recognized by the Kansas Supreme Court in Durflinger. Under the facts of that case, Bradley Durflinger was involuntarily committed to the state hospital after a court determined he was mentally ill. Bradley was later discharged from the hospital as being no longer in need of care or treatment. A week after his discharge, Bradley killed his mother and brother. Surviving family members brought a wrongful death action in federal court, alleging the hospital doctors negligently released Bradley. Following a jury verdict in favor of plaintiffs, defendants appealed to the United States Court of Appeals for the Tenth Circuit. This court accepted two certified questions, the following being relevant to this case:
“Would the Kansas Supreme Corut recognize as a valid cause of action a claim which grew out of a negligent release of a patient who had violent propensities, from a state institution, as distinguished from negligent failure to warn persons who might be injured by the patient as the result of the release?” 234 Kan. at 485.
The defendants argued they should not be liable for their acts, even if negligent, because predicting the dangerousness of a mental patient is too difficult. If the court held otherwise, defendants asserted, their ability to function professionally would be crippled, and the civil rights of mentally ill persons would be jeopardized.
First, the Durflinger court reviewed fundamental negligence principles:
“Negligence exists where there is a duty owed by one person to another and a breach of that duty occurs. Further, if recovery is to be had for such negligence, the injured party must show: (1) a causal connection between the duty breached and the injury received; and (2) he or she was damaged by the negligence. [Citation omitted.] An accident which is not reasonable to be foreseen by the exercise of reasonable care and prudence is not sufficient grounds for a negligence action. [Citations omitted.] In Kansas it is a fundamental rule actionable negligence must be based on a breach of duty. [Citations omitted.] Robertson v. City of Topeka [, 231 Kan. 358, 644 P.2d 458 (1982)], recognized a special relationship between certain persons could give rise to a duty. Whether a duty exists is a question of law. [Citations omitted.] Whether the duty has been breached is a question of fact. [Citation omitted.] Further, whether there is a causal connection between the breached duty and the injuries sustained is also a question of fact. [Citation omitted.]
“In Kansas negligence is never presumed. Blackmore v. Auer, 187 Kan. 434, 440, 357 P.2d 765 (1960). This court in Blackmore commented it may be said negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, as a result of which such other person suffers injury. 187 Kan. at 440. Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right. In every instance, before an act is said to be negligent, there must exist a duty to the individual complaining, the observance of which would have averted or avoided the injury. The plaintiff who sues his fellow man sues for a breach of duty owing to himself. 187 Kan. at 440. An act is wrongful, or negligent, only if the eye of vigilance, sometimes referred to as the prudent person, perceives the risk of damage. The risk to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension. Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 162 N.E. 99 (1928), 59 A.L.R. 1253. The existence of negligence in each case must depend upon the particular circumstances which surrounded the parties at the time and place of the occurrence on which the controversy is based. 187 Kan. at 441.” 234 Kan. at 488-89.
The court then stated: “The particular area of the law of negligence with which we are concerned herein is that of medical malpractice.” 234 Kan. at 489. And later in the opinion it stated: “Liability predicated upon negligent release of a patient committed to a mental hospital is a medical malpractice action.” 234 Kan. at 491. The language categorizing the cause of action as one of “medical malpractice” was overly broad and has created some confusion. As noted by one writer:
“The court’s characterization of Durflinger as a medical malpractice action is puzzling. One wonders if the court intended to limit Durflinger to its facts. As the court itself noted: ‘[A] physician is obligated to his patient under the law to use reasonable and ordinary care....’ The typical plaintiff in a medical malpractice action is the patient or someone acting in the patient’s behalf. In Durflinger, the plaintiffs were family members of the patient, but that fact seemed irrelevant to the court’s analysis. The court did not indicate whether a medical malpractice characterization would be equally applicable had the victims been total strangers rather than family members of the patient. A negligent release suit by a total stranger could hardly be considered a ‘medical malpractice’ action.” Note, Torts— Liability of Psychiatrists for Violent Acts Committed By Dangerous Patients-Durflinger v. Artiles, 33 Kan. L. Rev. 403, 414 (1985).
Careful consideration of our language in Durflinger indicates that the court’s references to medical malpractice were directed to the proof necessary to establish liability based upon ordinary negligence principles once a duty was shown to exist. This is borne out by the court’s statement following a discussion of the duty of the physician in treating his or her patient: “The aforementioned standards for medical malpractice actions are applicable to an action for negligent release of a patient from a mental hospital.” 234 Kan. at 492. Once a duty supporting a cause of action for negligent release is established, then the burden of proof to show a breach of that duty is based upon the standards applicable in a malpractice action. Our language in Durflinger to the effect that the cause of action was one of medical malpractice is disapproved.
In Durflinger, in determining whether a duty existed, the court recognized a cause of action, based upon the Kansas Treatment Act for Mentally Ill Persons, K.S.A. 59-2901 et seq. (Act), for the negligent release of an involuntaiy patient who had been committed under the Act. It is the plaintiff’s position that the duty found in Durflinger was not based upon the Act but on the physician-patient relationship and therefore also applies to voluntary patients.
Resolution of this issue requires a review of the statutoiy scheme for the care and treatment of mentally ill persons existing at the time of the events in question. Although there have been some amendments, the applicable statutes are not materially different from those reviewed in Durflinger and in Hokansen v. United States, 868 F.2d 372 (10th Cir. 1989). A mentally ill person is one who “(1) [i]s suffering from a severe mental disorder to the extent that such person is in need of treatment; (2) lacks capacity to make an informed decision concerning treatment; and (3) is likely to cause harm to self or others.” K.S.A. 59-2902(h). An involuntary patient is “a mentally ill person who is receiving treatment under order of a court of competent jurisdiction.” K.S.A. 59-2902(d). A voluntary patient is “a person who is receiving treatment at a treatment facility other than by order of any court.” K.S.A. 59-2902(r). Treatment is defined as “any service intended to promote the mental health of the patient and rendered by a qualified professional.” K.S.A. 59-2902(p).
The admission and discharge requirements for voluntary and involuntary patients are different. “Any person may be admitted to a treatment facility as a voluntary patient when there are available accommodations and the head of the treatment facility determines such person is in need of treatment therein.” K.S.A. 59-2905(a). A voluntary patient shall be discharged when the head of the treatment facility determines treatment is “no longer advisable,” K.S.A. 59-2906, or within three week days of a patient’s request for discharge, K.S.A. 59-2907(a). The Act does not prevent the filing of an application for determination of mental illness if a voluntary patient is refusing reasonable treatment efforts and is likely to cause harm to himself or herself or others if discharged. K.S.A. 59-2907(b). The statute, however, does not impose a duty to apply for involuntary commitment. On the other hand, when a person has been determined to be mentally ill, “the court shall order treatment for such person at a treatment facility.” K.S.A. 59-2917(f). An involuntary patient shall be discharged when “no longer in need of treatment in the facility.” K.S.A. 59-2924(c).
In finding that a cause of action for negligent release of an involuntary patient would be recognized, the court in Durflinger relied primarily on K.S.A. 1973 Supp. 59-2902, which provided:
“(1) The term ‘mentally ill person’ shall mean any person who is mentally impaired, except by reason of mental deficiency only, to the extent that he is in need of ‘care or treatment’ and who is or probably will become dangerous to himself or the person or property of others if not given ‘care and treatment’ and
(A) who lacks sufficient understanding or capacity to make responsible decisions with respect to his need for ‘care or treatment,’ or
(B) who refuses to seek ‘care or treatment.’ ” See 234 Kan. at 491-92.
The court stated:
“The petition for commitment alleged Bradley was dangerous to himself or others. The petition was filed by his grandfather the day after Bradley had attempted to kill his grandparents. Clearly he was committed to the hospital because he was dangerous to other persons. The hospital was required to provide care or treatment for Bradley. The ‘head of the hospital’ was required to discharge Bradley when he was ‘no longer in need of “care and treatment” ’ (K.S.A. 1973 Supp. 59-2924), i.e., no longer dangerous to himself or others. The three defendant-physicians were involved in the hospital team recommendation to the head of the hospital (hospital superintendent) that Bradley was no longer in need of care or treatment, i.e. no longer dangerous to himself or others. The making of the recommendation by the physicians to discharge or retain Bradley as a patient was a basic part of their professional employment. This professional duty obviously was for the benefit of Bradley and the public. We find no rational basis for insulating this one aspect of professional service' from liability for negligence occurring in the performance thereof.” 234 Kan. at 492.
In Durflinger, Bradley was involuntarily committed after the court determined he was dangerous to himself or others. Under the statute, the head of the hospital was required to release Bradley when he was “no longer in need of care and treatment,” which the court concluded occurred when Bradley was no longer dangerous to himself or others. While the court discussed the duly a physician owes to a patient under general negligence principles, the source of the duty owed to the public.for. negligently releasing a patient was the involuntary commitment statutes. No determination of whether a patient is dangerous to himself or herself or others is required to be made upon either admission or discharge of a voluntary patient. Nor is a physician statutorily required to seek commitment of a voluntary patient who requests discharge. A physician does not have a duty to a third party for the negligent release of a voluntary patient under the rule announced in Durflinger.
Although we have not had occasion to review Durflinger since its inception, the issue has been considered by the federal courts.
In Hokansen v. United States, 868 F.2d 372, the Tenth Circuit was asked to decide if the duty announced in Durflinger applied to voluntary patients. In Hokansen, Robert Garcia was voluntarily admitted to a veterans hospital. He was later released and placed on an outpatient treatment plan. After his release, Garcia shot several people. The surviving victim and representatives of the deceased victims brought suit against the United States, alleging the treating physicians negligently released Garcia from inpatient care. The federal district court held that Durflinger applied only to involuntarily committed patients, and plaintiffs appealed. Like the plaintiff in this case, the plaintiffs in Hokansen argued Durflinger should apply to voluntary as well as involuntary patients.
The court concluded that Durflinger applied only in cases of involuntary commitment under-the statutes and was not applicable to release of voluntary patients. The court stated:
“The Kansas statutes provide for three classes of psychiatric patients. An ‘involuntary’ patient is defined as ‘a mentally ill person who is receiving treatment under an order of a court of competent jurisdiction.’ [K.S.A. 59-902(d).] ... [A] ‘voluntary’ patient is ‘a person . . . who is receiving treatment at a treatment facility other than by order of any court.’ [K.S.A. 59-2902(r).]
“. . . A voluntary patient may be admitted when the hospital supervisor determines ‘such person is in need of treatment.’ [K.S.A. 59-2905.] A voluntary patient maybe released when the supervisor finds ‘treatment . . . to be no longer advisable.’ [K.S.A. 59-2906.] (emphasis added). Significantly, and in contrast to the case of involuntary patients, . . . the provisions for . . . voluntary admission, [and] discharge therefrom, [do not] require any finding that the patient is a ‘mentally ill person,’ i.e., ‘dangerous to self or others.’ . . . That is the critical distinction. To support the existence of a duty in Durflinger the court specifically quoted [sic] upon the ‘no longer dangerous to himself or others’ determination that the hospital professionals are required to make under the involuntary, commitment statutes, and it relied upon this determination to find a duty of .care owing to ‘the public.’ [234 Kan. at 492.] No such determination was required under the Kansas statutes when the hospital released Garcia from treatment as a voluntary inpatient.” 868 F.2d at 376-77.
The court also noted:
“A voluntary patient may request discharge, and a hospital is then required to release the patient within the next three days. [K.S.A. 59-2907.] .... Section 59-2907, however, does not impose any duty upon the hospital to seek commitment. It does not even suggest any criteria by which a hospital should decide whether or not to seek commitment. In any event, the statutory language at no point suggests any obligation by the hospital to third parties to exercise the power to seek commitment.” 868 F.2d at 376-77 n.7.
The court then concluded: “We hold that Durflinger does not govern this case. No duty recognized by the Kansas Supreme Court in Durflinger supports a cause of action by the plaintiffs against the defendants.” 868 F.2d at 377.
In 1990, the federal District Court of Kansas was faced with a reconsideration of whether, under Kansas statutes, there was a duty to detain a voluntary patient. In Mahomes-Vinson v. United States, 751 F. Supp. 913 (D. Kan. 1990), Nolan Prewett was a voluntary patient at the veterans hospital in Topeka. Prewett had a long history of sexual and physical violence and had received treatment at various hospitals for years. On July 19, 1986, eight days after he was discharged, Prewett raped, sodomized, and killed two little girls. The children’s mother filed an action against the United States. One of her claims brought under the Federal Tort Claims' Act was based on the negligent release of Prewett. In granting summary judgment to the defendant on that claim, the court stated:
“The FTCA directs that the law of the state in which the act or omission resulting in injury occurred be used to determine whether there is liability on the facts of the particular case. [Citation omitted.] We will therefore apply the law of Kansas in ascertaining whether the defendants owed plaintiff a duty.
“Plaintiff alleges in the alternative that the United States, acting through the Department of Veterans Affairs, is hable under the statutory and common law of Kansas for the negligent release of Prewett as a voluntary patient at the VA hospital in Topeka. The precise issue of whether a VA hospital has a duty under Kansas law to prevent the release of a voluntary patient was the subject of a recent Tenth Circuit opinion—Hokansen v. United States, 868 F.2d 372 (10th Cir. 1989). The Hokansen plaintiffs relied upon the Kansas Supreme Court’s decision in Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983) in arguing that treating physicians at the VA hospital in Wichita, Kansas, negligently released a voluntary patient, Robert Garcia. The Tenth Circuit noted that the duty found to exist in Durflinger derived from Kansas’ involuntary commitment statute. Since Garcia was a voluntary patient, the Tenth Circuit concluded in Hokansen that no duty was recognized in Durflinger to support plaintiff’s cause of action.
“Plaintiff contends nonetheless that she has a viable cause of action because the court in Hokansen was confronted with a different version of K.S.A. 59-2907 than was in effect at the time of Prewett’s release. K.S.A. 1989 Supp. 59-2907 provides voluntary patients with the right to be discharged from a treatment facility within three days of their written request. An amendment in 1986 added the following language to the statute:
‘Nothing in this act shall prevent the head of a treatment facility or other person from filing an application for determination of mental illness with respect to a voluntary patient who is refusing reasonable treatment efforts and is likely to cause harm to self or others if discharged.’
K.S.A. 1989 Supp. 59-2907. Plaintiff suggests that the legislature intended to encourage the involuntary commitment of voluntary patients by heads of treatment facilities who believed that the patients would cause harm to themselves or others.” 751 F. Supp. at 917-18.
The amendment relied upon is the current version of the statutes and is applicable to the case now before us. After carefully reviewing the Kansas statutes and the history of recent amendments to them, the court stated:
“We hold that the amendment of K.S.A. 59-2907 by the Kansas legislature in 1986 did not impose a duty on the defendant to apply for a determination of mental illness with regard to Nolan Prewett. The court will therefore grant defendants’ summary judgment motion with regard to plaintiff’s claim of negligent release.” 751 F. Supp. at 919.
It is apparent that the court relied upon the holding and analysis of Hokansen.
We conclude that the duty recognized in Durflinger was based upon the statutory provisions applicable to the commitment and release of involuntary patients and is not applicable to voluntary patients. The cause of action for negligent release of an involuntary patient recognized in Durflinger does not apply to voluntary patients.
Next, plaintiff argues that if Durflinger did not recognize a cause of action for negligent release applicable to voluntary patients, then defendants owed him a duty under the special relationship doctrine set forth in Restatement (Second) of Torts § 315. Plaintiff asserts the defendants had a duty to warn him of Ron’s discharge or seek Ron’s commitment. On the other hand, Dr. Pol and Applewood argue no special relationship existed to justify imposition of a duty. Dr. Pol and amicus curiae argue a therapist does not have the requisite ability to control the conduct of a voluntary patient so as to justify imposition of a duty to control.
Sections 315-320 of the Restatement (Second) of Torts set forth die duty on a person to control the conduct of third persons.
“As a general rule, in tile absence of a ‘special relationship’ there is no duty on a person to control the conduct of a third person to prevent harm to others. A special relationship may exist between parent and child, master and servant, the possessor of land and licensees, persons in charge of one with dangerous propensities, and persons with custody of another.” C.J.W. v. State, 253 Kan. 1, 7-8, 853 P.2d 4 (1993).
The relevant portion of the Restatement provides:
Ҥ 315. General Principle
“There is no duly so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor [psychiatrist] and the third person [patient] which imposes a duty upon the actor [psychiatrist] to control the third person’s [patient’s] conduct, or
(b) a special relation exists between the actor [psychiatrist] and the other [victim] which gives to the other [victim] a right to protection.”
Because plaintiff alleges no relationship between plaintiff and defendants, § 315(b) is inapplicable. According to the comments to § 315, subsection (a) is. also governed by § 319, which provides:
“Duty of Those in Charge of Person Having Dangerous Propensities
“One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to. exercise reasonable care to control the third person to prevent him from doing such harm.”
Kansas courts have recognized an affirmative duty to protect third persons from harm based on the special relationship analysis set forth in § 315. See C.J.W. v. State, 253 Kan. 1, 11-12. (State has duty to warn juvenile officials of child’s known violent propensities and protect other children in custody from violent child); Washington v. State, 17 Kan. App. 2d 518, Syl. ¶ 2, 839 P.2d 555, rev. denied 252 Kan. 1095 (1992) (prison officials owe duty of reasonable care to' safeguard prisoners from attack by other prisoners; duty not violated unless danger was known or should have been known); Cansler v. State, 234 Kan. 554, 564, 675 P.2d 57 (1984) (State has duty to confine inmates securely and to notify area residents and law enforcement when inmates escape). In Robertson v. City of Topeka, 231 Kan. 358, 364, 644 P.2d 458 (1982), the court recognized a special relationship also exists when one who creates a foreseeable peril, not readily discoverable, fails to warn. Most recently, the court found a special relationship did not exist in Nero v. Kansas State University, 253 Kan. 567, 861 P.2d 768 (1993) (the University did not have type of custody or control over students contemplated by § 315 to establish a special relationship), and P.W. v. Kansas Dept. of SRS, 255 Kan. 827, 833, 877 P.2d 430 (1994) (no duty of State to prevent child abuse in private, licensed child care center because State had not created the peril and special relationship did not exist). It must be conceded that all of the foregoing cases are fact specific, and the results reached were dictated by the facts in each case.
Assuming, without deciding, that § 315 might be applicable under certain circumstances to the relationship between a psychiatrist and/or a mental health care facility and a voluntary patient, the facts in this case do not support the existence of the duty alleged by plaintiff. Ron Hill was a voluntary patient of Dr. Pol and Applewood and was free to terminate his relationship with Dr. Pol and to leave Applewood at any time unless detained pursuant to K.S.A. 59-2903. Ron was referred to Dr. Pol and Applewood by the CRMC and Dr. Cantwell to provide Ron with a structured environment away from home, daily medication monitored by a psychiatrist, and training in independent living skills. He was not referred for intensive psychotherapy or psychiatric treatment, and Applewood and Dr. Pol were not expected to provide such care and treatment. At the time of Ron’s discharge from Applewood on August 10, 1990, plaintiff was well aware that Ron had been a threat to him in the past and was capable of violence. On the day of the attack, August 20, 1990, plaintiff voiced his concern about Ron and was reluctant to enter the Hills’ home. However, his brother-in-law, Ron’s father, insisted, and plaintiff, against his better judgment, entered the house knowing Ron was there and that a potential for violence existed. After conversing briefly with Ron and his father, plaintiff observed Ron leave the room, and at that time plaintiff became even more apprehensive. Again, plaintiff tried to leave the Hill house but was convinced not to do so by Ron’s father. Plaintiff was well aware at all times of the potential for danger but failed to take any action to avoid the ultimate attack by Ron.
Plaintiff contends the defendants had a duty under § 315 to involuntarily commit Ron or, in the alternative, warn him of Ron’s release and potential for violence. We have already determined that defendants had no statutory duty and no duty under Durflinger which would establish liability for the alleged negligent release of Ron.
Kansas courts have not addressed whether the relationship between a psychiatrist and a voluntary patient creates an affirmative duty for the benefit of third persons. In Durflinger, the court specifically distinguished negligent release from other types of third-party actions based on § 315 and requiring the physician to take some affirmative action to protect third persons, such as notifying a potential victim, calling the police, or instituting commitment proceedings. 234 Kan. at 492-93. In making the distinction and in further addressing defendants’ policy concerns, the court quoted extensively from Lipari v. Sears, Roebuck & Co., 497 F. Supp. 185 (D. Neb. 1980), which discusses Tarasoff v. Regents of University of California, 17 Cal. 3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976), and McIntosh v. Milano, 168 N.J. Super. 466, 403 A.2d 500 (1979).
Tarasoff is the landmark case addressing the duty of a psychiatrist to protect others from the conduct of a patient. In Tarasoff, Prosenjit Poddar killed Tatiana Tarasoff. Two months earlier, Poddar had informed his therapist while in voluntary outpatient treatment that he intended to kill Tatiana. Although Poddar did not specifically state Tatiana’s name, she was readily identifiable by the therapist. Tatiana’s parents brought suit against the therapists and hospital, alleging they had a duty to warn their daughter of the impending danger. The court found that even though Poddar was a voluntaiy patient, a duty existed under § 315. Tarasoff and Lipari are quoted and discussed at length in Durflinger and, although interesting, we see no reason to repeat that discussion here as there was no attempt in Durflinger to rely upon § 315 or to consider its application to either an involuntary or voluntary patient. To the contrary, the court stated:
“[T]here is no reason to apply the concept of special relationship and the resulting affirmative duty to take some special step to protect a third party or the public. We are not called upon in this case to decide whether, in Kansas, liability may be predicated upon a therapist’s failure to warn a victim or failure to detain based upon a special relationship and, accordingly, decline to decide such issues in this opinion.” 234 Kan. at 499.
Plaintiff, relying on a special relationship under § 315, argues defendants had a duty to detain Ron and seek his involuntary commitment or warn plaintiff of the danger. Plaintiff’s expert believed Ron was dangerous to himself or others at the time of his discharge. In his report, he opined Dr. Pol’s negligent treatment of Ron included the “failure to adequately prepare the patient and family for discharge and evaluate the patient at discharge if such discharge was appropriate, or notify or warn plaintiff had the patient been evaluated and found still dangerous to him.”
Plaintiff argues Dr. Pol had a duty to warn him of Ron’s discharge. However, the uncontroverted facts establish plaintiff was fully apprised of the danger posed by Ron. The duty to warn does not arise when the victim already knows of the danger. Matter of Estate of Votteler, 327 N.W.2d 759, 762 (Iowa 1982); Hinkelman v. Borgess Med. Cen., 157 Mich. App. 314, 323-24, 403 N.W.2d 547 (1987); Wagshall v. Wagshall, 148 App. Div. 2d 445, 447, 538 N.Y.S.2d 597 (1989). This conclusion is ¿so supported by Robertson, 231 Kan. at 364, where the court recognized a special relationship exists when one creates a foreseeable peril, not readily discoverable, and fails to warn of the danger. In Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, clarified and reh. den. 187 Kan. 186, 354 P.2d 670 (1960), a patient brought a malpractice action against his physician, and one of the allegations was that the doctor failed to fully advise plaintiff of the possible results of radiation therapy. The court discussed at some length the duty to warn or advise a patient. In doing so, the court recognized that “where the patient fully appreciates the danger involved, the failure of a physician in his duty to make a reasonable disclosure to the patient would have no causal relation to the injury.” 187 Kan. at 410. The same reasoning applies in the present case. Plaintiff was fully cognizant of Ron’s feelings toward him and Ron’s propensity for violence. Under the circumstances, defendants had no duty to warn plaintiff of what he already knew.
Because Dr. Pol had no duty to warn plaintiff, the next question is whether there is evidence to support plaintiff’s contention that Dr. Pol alternatively had a duty to seek Ron’s involuntary commitment. Plaintiff’s expert believed plaintiff should have been warned if Dr. Pol determined Ron was dangerous to plaintiff. Other than the general statement by plaintiff’s expert that Ron was dangerous to himself or others upon discharge, there is nothing in the record that indicates the circumstances required Dr. Pol to seek Ron’s commitment instead of simply warning plaintiff. Plaintiff provides no evidence that Ron’s involuntary commitment was necessary if plaintiff was already apprised of the danger.
Under the facts of this case, because plaintiff was aware of the danger, Dr. Pol had no duty to take any affirmative action to control Ron even if a special relationship under § 315 had been established. Furthermore, defendants did not have the requisite control of Ron which might conceivably create a duty under § 319.
Finally, plaintiff asserts the trial court committed error in granting summary judgment because there were disputed material facts which precluded summary judgment. We have carefully reviewed each of plaintiff’s disputed facts and,.in view of our holding on the first two issues, none of them are material to our decision. “In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case.” Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994).
In conclusion, we hold: (1) The cause of action for negligent release of an involuntary mental patient recognized in Durflinger v. Artiles, 234 Kan. 484, 673 P.2d 86 (1983), is inapplicable to, and does not create a cause of action for, the alleged negligent release of a voluntary patient; (2) the duty to warn does not arise when the victim already knows the danger; (3) under the facts of this case, no special relationship exists which would warrant a duty being imposed under Restatement (Second) of Torts § 315; and (4) there are no material disputed facts which precluded summary judgment in this case.
Affirmed. | [
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In a letter dated June 14, 1995, to the Clerk of the Appellate Courts, respondent Daniel G. Clothier, of Wichita, Kansas, an attorney admitted to practice law'in the State of Kansas, voluntarily surrendered his license to practice law in the State of Kansas, pursuant to Supreme Court Rule 217 (1994 Kan. Ct. R. Annot. 215).
On May 26,1995, respondent entered a plea of nolo contendere to the charge of unlawful acts in connection with the offer, sale, or purchase of securities, as defined in K.S.A. 17-1253, a class D felony.
This court, having examined the files of the office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Daniel G. Clothier be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Daniel G. Clothier from the roll of attorneys licensed to practice law in the State of Kansas.
It is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1994 Kan. Ct. R. Annot. 217). | [
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The opinion of the court was delivered by
Holmes, C.J.:
Defendant Terrell F. Myers, also known as Terrell F. Meyers, appeals his jury conviction of one count of possession of cocaine, K.S.A. 65-4127a. The Court of Appeals in an un published 2 to 1 decision filed January 20, 1995, reversed his conviction and remanded the case for a new trial because the trial court committed reversible error in responding to a jury inquiry. The Court of Appeals found that issue dispositive of the case and did not address several other alleged trial errors asserted by the defendant. This court granted the State’s petition for review. We reverse the Court of Appeals and affirm the district court.
On Januaiy 7, 1993, Wichita police officers executed a search warrant at the home of defendant Terrell Myers. Officers discovered the defendant and two or three others, including Belinda Hutton, in a bedroom. The defendant was seated in a chair, and the others were sitting on a couch facing him. A small pile of crack cocaine was in plain sight on top of a television set located behind and to the right of the defendant. The cocaine was readily available to everyone in the room. Officers also recovered a crack pipe which they saw Hutton throw or place under the couch, two crack pipes in a cigarette purse underneath the couch and two pipes in a jacket in a closet behind the couch. Cocaine residue was found in the crack pipe Hutton put under the couch.
In another bedroom, officers recovered a container that tested positive for cocaine residue. A test tube which officers believed had been used to make crack cocaine was found in the kitchen.
During questioning following his arrest, the defendant claimed he did not know the cocaine was in his house that evening and if he had known it was there, he would have smoked it. He smoked crack cocaine eveiy day and admitted he had smoked cocaine in a pipe in his home within the previous 24 hours. He also acknowledged it was his practice to allow others to smoke cocaine in his house as long as they shared with him.
The defendant was charged with one count of possession of cocaine. At trial, Hutton testified that she and her friend, Sylvia, brought cocaine to Myers’ house and Sylvia put it on the television. Although the defendant was sitting in a chair when Sylvia put the cocaine on the television and broke it up, Hutton did not think the defendant was aware of what Sylvia was doing. After breaking up the cocaine, Sylvia placed some of it in a pipe, and everyone in the room, including the defendant, took turns smoking the pipe. When officers arrived, Hutton threw or placed the pipe under the couch. She estimated the defendant had last smoked cocaine 20 to 30 minutes before the police arrived.
An officer testified the defendant’s residence was commonly referred to as a “smoke house,” which is “a place where, not necessarily cocaine is purchased but people go there to smoke crack cocaine, almost like a safe house.”
At the instructions conference, defense counsel requested an instruction, based on State v. Flinchpaugh, 232 Kan. 831, 659 P.2d 208 (1983), that the defendant could not be guilty of possessing cocaine merely because the drug was present in his bloodstream. The court declined to give the instruction, finding that there was no evidence the defendant had cocaine in his system and that if the jury believed Hutton, they would find him guilty of possession by having possessed the pipe.
During deliberations, the juiy asked the trial court the following questions:
“Is it possible to possess a drug that has already been smoked[?] For instance, can we count that Terrell used it earlier as possession or since it was all smoked is it no longer possession!?] Are we trying to determine whether he possessed the little amount left or can we also assume he possessed the drugs he admitted to smoking!?]”
Defense counsel renewed her request for the proposed instruction that evidence of narcotics within one’s body is not sufficient evidence to establish guilt beyond a reasonable doubt. The trial court declined to give the proposed instruction and instructed the jury as follows:
“[I]t is possible to have possessed cocaine which has been smoked. It is also possible to possess the cocaine left in the pipe — left in a pipe after smoking cocaine. Under either theory, the State must prove the claims set out in Instruction Number 3.”
Instruction No. 3 stated:
“The Defendant, Terrell F. Meyers, is charged with the crime of violation of the Uniform Controlled Substances Act of the State of Kansas as it pertains to a narcotic drug known as cocaine. Mr. Meyers pleads not guilty.
“To establish this charge each of the following claims must be proved:
1. That Mr. Meyers possessed a narcotic drug known as cocaine;
2. That he did so intentionally; and
3. That he did so on or about tire 7th day of January, 1993, in Sedgwick County, Kansas.
“ ‘Possession’ is having control over a place or thing with knowledge of and the intent to have such control. Such possession and intent may be proved by circumstantial evidence.
“Possession may be immediate and exclusive, jointly held with another, or constructive.
“Constructive possession is knowingly having both the power and the intention at a given time to exercise dominion or control over the property in questions [sic],
“Joint possession occurs when two or more persons who have the power or control and the intent to manage exercise the same jointly.”
Instruction No. 3A provided:
“It is a defense in this case if by reason of ignorance Mr. Meyers did not have at that time the mental state required as an element of the crime.
“Mr. Meyers claims lack of knowledge of the presence of cocaine under his control and lack of intent to possess those substances as a defense. Evidence in support of this claim should be considered by you in determining whether the State has met its burden of proving that Mr. Meyers is guilty. The State’s burden of proof does not shift to Mr. Meyers. If the defense asserted causes you to have a reasonable doubt as to Mr. Meyers’ guilt, you should find him not guilty.”
The jury found the defendant guilty of one count of possession of cocaine. He was sentenced to 4 to 10 years’ imprisonment and later placed on probation. He appealed his conviction to the Court of Appeals.
The Court of Appeals found the trial court abused its discretion in responding to the jury’s questions and remanded the case for a new trial. In doing so, the Court of Appeals recognized that the trial court’s response to the jury’s inquiry that “it is possible to have possessed cocaine that has been smoked” was legally correct. However, a majority of the Court of Appeals panel was of the opinion the answer was misleading in that the jury might have convicted the defendant based upon his statement that he used drugs and not on the basis of the drugs recovered in the search. In doing so, the court concluded:
“Instruction No. 3 failed to correct that portion of the trial court’s answer that the jury could convict defendant for the cocaine that he had smoked previously. And the trial court’s answer failed to explain to the jury that defendant’s admitted consumption of cocaine by itself would not support a criminal conviction for possession of cocaine. See Hill, 16 Kan. App. 2d at 285.”
The sole issue raised by the State’s petition for review is whether the trial court committed reversible error in its response to the jury’s inquiry.
K.S.A. 22-3420(3), which addresses the trial court’s duty in responding to an inquiry from the jury, provides:
“After the jury has retired for deliberation, if they desire to be informed as to any part of the law or evidence arising in the case, they may request the officer to conduct them to the court, where the information on the point of the law shall be given ... in the presence of the defendant, unless he voluntarily absents himself, and his counsel and after notice to the prosecuting attorney.”
While the trial court has a mandatory duty to respond to a jury’s request for further information as to the law of the case, the manner and extent of the trial court’s response rest in the sound discretion of the trial court. State v. Boyd, 257 Kan. 82, 87, 891 P.2d 358 (1995). “The test of the trial court’s abuse of discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision.” Taylor v. State, 251 Kan. 272, Syl. ¶ 3, 834 P.2d 1325 (1992). Obviously, a court does not have discretion to erroneously answer a jury’s inquiry. The defendant does not contend that the trial court’s response was an incorrect statement of the law but asserts that based upon the facts in this case it was misleading and allowed the jury to reach an erroneous conclusion.
The defendant’s contention that the trial court committed reversible error in its response to the jury is based primarily on State v. Flinchpaugh, 232 Kan. 831, and the trial court’s refusal to instruct the jury based upon the decision in that case. In Flinchpaugh, the defendant was involved in an automobile collision and charged with possession of cocaine based solely on the results of blood tests taken following the collision. The State presented no evidence of how or when the chemicals were introduced into the defendant’s system, and the trial court dismissed the charges. This court affirmed, finding that because a person no longer has the requisite power to control a drug once it is within his or her system, evidence of a controlled substance after it is assimilated in a person’s blood does not establish possession or control of that substance. 232 Kan. at 834. At the same time, the court recognized:
“Discovery of a drug in a person’s blood is circumstantial evidence tending to prove prior possession of the drug, but it is not sufficient evidence to establish guilt beyond a reasonable doubt. The absence of proof to evince knowledgeable possession is the key. The drug might have been injected involuntarily, or introduced by artifice, into the defendant’s system. The prosecution did not establish that defendant ever knowingly had control of the cocaine. ... In the narrow holding of this case, we find that evidence of a controlled substance assimilated in one’s blood does not establish possession of that substance as defined by K.S.A. 65-4127a, nor is it adequate circumstantial evidence to show prior possession by that person. Other corroborating evidence combined with positive results of a blood test could be sufficient evidence to prove guilt beyond a reasonable doubt depending on the probative value of the corroborating evidence.” 232 Kan. at 835-36.
The narrow holding of Flinchpaugh applies to cases in which the only evidence is evidence of a controlled substance after it is assimilated in the blood. In such cases, the necessary elements of knowing and intentional control over the substance are lacking.
The defendant’s reliance on Flinchpaugh is misplaced. Here, Hutton testified the defendant had smoked cocaine in a community pipe 20 to 30 minutes prior to arrival of the police. That pipe was recovered in the search and contained cocaine residue. In addition, the defendant admitted smoking cocaine in a pipe in his home within the previous 24 hours. There was no evidence of any controlled substance assimilated in his blood. Unlike in Flinchpaugh, the evidence in this case dealt specifically with the manner and circumstances in which the defendant consumed cocaine immediately prior to the arrival of the police. Because the evidence in this case deals with cocaine before it was assimilated in the defendant’s system and the manner in which it was consumed, the holding in Flinchpaugh is not applicable to this case.
To convict a person of possession of an illegal substance based upon physical evidence recovered during the execution of a search warrant requires that the substance be recovered in the search or that it was in the defendant’s possession immediately prior to the search. Here, when executing the search warrant, the officers recovered a crack pipe with cocaine residue in it. There was testimony that within 30 minutes prior to the search the defendant had smoked cocaine using that pipe. He had the possession, knowledge, and intent necessary to support his conviction of possession of cocaine in the pipe and the residue remaining therein. In addition, a small pile of cocaine was readily visible on the television set within reach of the defendant.
The Hon. James J. Smith, district judge, sitting with the Court of Appeals panel, dissented from the majority holding in this case. In doing so, Judge Smith stated:
“I dissent from the result reached herein. I find State v. Flinchpaugh, 232 Kan. 831, 659 P.2d 208 (1983), does not apply to the instant case because cocaine was not found in the blood of defendant and no evidence of such was presented to the jury. . . .
“Flinchpaugh is only applicable to cases in which the blood of the defendant has been tested and the presence of a controlled substance has been found therein. In such cases, Flinchpaugh is limited to those situations in which the only evidence of possession is the presence in the blood of the controlled substance. No such evidence of blood testing existed in this case, but other evidence of possession did exist. The holding in the Flinchpaugh case does not apply and does not create any requirement for an instruction on the presence of cocaine in the blood.
“Flinchpaugh does hold circumstantial evidence can be used to show prior possession by a person.
“Here, evidence was presented by the testimony of defendant and by defendant’s niece, Belinda Hutton, of possession by defendant prior to the time the Wichita Police Department arrived at the residence. Certain pipes that could be used in the smoking of cocaine were found at the residence. This is all evidence of prior possession of the cocaine by defendant. The presence of cocaine in the blood would have been additional evidence but is not necessary to prove possession.
“The jury, as the finder of fact, found possession from the evidence. The evidence is sufficient for a jury to have found, beyond a reasonable doubt and in accordance with instruction No. 3 as quoted by the majority, possession of cocaine that had been smoked prior to the arrival of the officers. The use by Myers earlier did ‘count as possession’ as the jury asked, and the trial court correctly answered the question by stating that ‘it is possible to have possessed cocaine that has been smoked.’ I would affirm.”
The defendant also relies on State v. Thronsen, 809 P.2d 941 (Alaska App. 1991), where the defendant was charged with possession of cocaine “in his body.” The court concluded that a defendant could not be convicted of possession of cocaine in his or her body because the person has no control over the cocaine at that point and therefore does not have possession. Here, the defendant was not charged with possession of cocaine based upon cocaine within his body. Thronsen is not applicable here.
While we recognize that the trial court’s response to the jury could have been clearer and more precise, we agree with Judge Smith and conclude that the court did not commit reversible error in its response and that the Court of Appeals erred in so holding.
The defendant in his original appeal raised several other issues not considered by the Court of Appeals. None of the additional issues has merit, and we will consider them only briefly.
The defendant argues the trial court erred in refusing to give his requested instruction, based on Flinchpaugh, that evidence of illegal substances in one’s bloodstream does not constitute possession. As a result of the trial court’s failure to give his requested instruction, he asserts he was denied his Fourteenth Amendment right to present his theory of defense. The defendant believes he was entitled to the instruction because the evidence indicated he was unaware of the presence of cocaine and did not exercise control of it on the night of his arrest. He argues Hutton’s testimony that he had smoked cocaine 30 minutes prior to the arrival of the officers could prejudice the jury into thinking the mere presence of cocaine in his system constituted possession. He believes the jury could have concluded the cocaine found its way into his system by means other than the pipe allegedly possessed by Hutton. As stated earlier, the defendant’s reliance on Flinchpaugh is misplaced. Flinchpaugh is not applicable to the facts of this case.
Next, the defendant argues the evidence is insufficient to support his conviction for possession of cocaine. He asserts there is no substantial evidence that he had knowledge or control over the cocaine and the jury based its verdict on the erroneous response given by the trial court.
“In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether ah of the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if tire essential elements of a charge are sustained. [Citation omitted.]” State v. Brown, 245 Kan. 604, 614, 783 P.2d 1278 (1989).
The evidence in the record supports the finding that the defendant knowingly and intentionally possessed the cocaine and pipe all parties were using shortly before the police arrived, the pile of cocaine on the television, or the residue in the crack pipe. When police arrived, the defendant was sitting in a chair within reach of a pile of crack cocaine which was in plain view on the television in a bedroom of his residence. While the defendant was sitting in the chair, a woman had broken the cocaine into rocks and used a portion of it to fill a crack pipe. Everyone in the room, including the defendant, took turns smoking the pipe. The defendant last smoked this pipe 20 to 30 minutes before the police arrived. The defendant acknowledged he smoked cocaine every day and that it was his practice to allow others to smoke cocaine in his house as long as they shared with him. The jury could conclude beyond a reasonable doubt that the defendant knowingly and intentionally possessed cocaine at the time and place alleged in the complaint.
Finally, the defendant contends the trial court abused its discretion by allowing testimony about a test tube, recovered during the search, without establishing a proper chain of custody. The test tube was found in the kitchen of defendant’s home and was never offered in evidence during the trial. The only two references we find to the test tube in the entire transcript were made by Officer Agnew of the Wichita Police Department, one of the officers involved in executing the search warrant. After testifying about items recovered during the search, the following occurred:
“Q. [By the State] What other items did you find?
“A. There’s a test tube that was found in the kitchen.”
Following several pages of testimony about the use of various items recovered during the search and specific exhibits that were being offered in evidence, the following occurred:
“Q. Are you familiar with any of the utensils used to make crack?
“A. Yes.
“Q. Did you take into evidence anything that could have been used to make crack?
“Ms. Ward [Defense attorney]: Objection. Lack of foundation and again relevance.
“The Court: Overruled.
“Q. Go ahead.
“A. Yes, I did. The test tube here is used for cooking up crack.”
While there may very well have been a lack of evidence to establish a clear chain of custody to the test tube, it was never offered into evidence, and the two rather innocuous answers referring to the test tube certainly do not constitute reversible error.
We have considered all the issues and arguments raised by the defendant and find no reversible error. The decision of the Court of Appeals is reversed, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Six, J.:
This case focuses on defendant’s claim that his counsel was improperly restricted by the trial court in the voir dire examination of potential jurors.
Michael S. Hayes was convicted of first-degree murder, K.S.A. 1993 Supp. 21-3401; aggravated robbery, K.S.A. 1993 Supp. 21-3427; and conspiracy to. commit robbeiy, K.S.A. 1993 Supp. 21-3302 and K.S.A. 1993 Supp. 21-3426. Hayes’ counsel waived oral argument and submitted the case on the brief. Our jurisdiction is under K.S.A. 1993 Supp. 22-3601(b)(1) (an appeal from conviction of an off-grid crime). Hayes’ appeal, along with State v. Cox, 258 Kan. 557, 908 P.2d 603 (1995), and State v. Vincent, 258 Kan. 694, 908 P.2d 619 (1995), arises from the July 30, 1993, carjacking and murder of Marcus Smith. Hayes was tried separately. Damon Cox, Carrie Vincent, Stefan Wheeler, and Jared Owens were tried together. The five defendants are referred to as the group.
We find no error and affirm.
FACTS
The events surrounding Hayes’ convictions are set out in Cox. Additional facts relating to the voir dire issues are referenced herein.
Neither Hayes nor Cox testified. Vincent, Wheeler, and Owens testified for the State; however, none said they witnessed the shooting.
The group sped away from the scene together in four cars (their three and the victim’s). Hayes, then 17, was stopped by a police roadblock and taken into custody. He was certified to be tried as an adult. His counsel filed a pretrial motion to change venue due to extensive publicity. The trial court denied the motion three weeks before the case went to trial.
After the jury returned guilty verdicts, Hayes moved for a new trial, alleging that his motion to change venue should have been granted and that the trial court unduly restricted his voir dire of prospective jurors. The trial court denied the new trial motion.
DISCUSSION
Restrictions on Voir Dire
Hayes contends that the trial court unduly restricted voir dire, thus preventing his counsel from inquiring into the specific opinions of prospective jurors as to Hayes’ guilt or innocence. Hayes also asserts that in imposing the voir dire restrictions, the trial judge made disparaging comments about his counsel. Hayes claims the restrictions on questioning violated his right to an impartial jury and prevented him from supporting a motion to change venue. The disparaging comments about his counsel, he contends, deprived him of a fair trial.
The purpose of the voir dire examination of prospective jurors is to enable the parties to select competent jurors who are without bias, prejudice, or partiality. See State v. Lumbrera, 252 Kan. 54, 59, 845 P.2d 609 (1992).
A trial court should not be satisfied -in all cases with a one-size-fits-all approach to voir dire. Answers should not necessarily be limited to “stock questions” such as “Have you formed an opinion as to the accused’s innocence or guilt?” or “Will you be able to determine guilt based only on the evidence presented?” United States v. Affleck, 776 F.2d 1451, 1455 (10th Cir. 1985). Answers to such questions do, of course, go to the heart of the inquiry and are given under oath and therefore deserve a heavy presumption of correctness. Nevertheless, it is conceivable that prospective jurors with the purest of intentions may, in the heat of the moment in front of their peers, underestimate their own bias. Consequently, “ ‘ [considerable latitude should be allowed counsel in the examination of jurors, so that all who have bias or prejudice, or are otherwise disqualified, may be eliminated.’ ” State v. Lockett, 232 Kan. 317, 321, 654 P.2d 433 (1982) (quoting Swift v. Platte, 68 Kan. 1, 6, 72 Pac. 271, rev’d on rehearing 68 Kan. 10, 74 Pac. 635 [1903]). Ultimately, whether ruling on challenges for cause or the scope or extent of questioning, trial courts should consider special circumstances that may be present.
Our standard of review is abuse of discretion. We have repeatedly recognized that the trial court has broad discretion in controlling voir dire in criminal cases. See, e.g., Lumbrera, 252 Kan. 54, Syl. ¶ 4. K.S.A. 22-3408(3) describes the procedure for examining prospective jurors in a criminal trial. The appropriate scope and extent of voir dire may vary greatly from case to case and therefore is not governed by any fixed rules. Lockett, 232 Kan. at 322. Deference to trial court discretion has been called the hallmark of this court’s resolution of voir dire issues in criminal cases. 232 Kan. at 323.
Under our general definition, judicial discretion is abused when the action taken is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. Lumbrera, 252 Kan. 54, Syl. ¶ 5.
Jury selection in this case began with a large group of prospective jurors. There was no exact count of the full assembly. However, their numbers were large enough to create a problem of insufficient seating in the courtroom at the start of the proceedings.
The clerk called 39 names, and those people, whom we refer to as panelists, were directed to sit in the jury box. One of the first 39 panelists was immediately excused for cause based on comments he had made in a written questionnaire. The clerk called a new person to replace the one excused. The remaining prospective jurors (not on the panel of 39) sat in the courtroom and observed the proceedings.
The closeness of the community was apparent from the record. Of the 39 panelists, 11 said that they knew die county attorney who was prosecuting the case, and 12 said that they knew the defense attorney. None of those people were dismissed for cause for that reason, as they all said that their relationships would not cause them to be biased in favor of or against either party. Three persons were excused for cause because they were friends of the victim’s family; one was excused because his brother-in-law witnessed the crime; and another was excused who said her brother was the ambulance driver who responded to the scene.
The panelists were sworn for voir dire examination, and the trial judge made opening comments.
The State commenced its voir dire. By the end of the State’s voir dire, the trial judge had excused 10 panelists for cause. Three of the excused panelists were close friends of the victim’s family; four said that they had a predisposition about the case and did not believe they could put it aside; and the three others had personal reasons that would have prevented them from being attentive or impartial. Each time a panelist was excused for cause, a new panelist was selected from the supply of prospective jurors in the courtroom. The prosecutor would then bring the new panelist “up to speed” by asking all of the questions that had already been put to the panel. The State eventually passed the panel for cause.
We turn now to the specific contentions advanced by Hayes. At issue on appeal are statements and rulings of the trial court during the voir dire. Although Hayes complains of “repeated interruptions and comments,” the record shows that Charles M. Tuley, Hayes’ counsel, conducted voir dire on many subjects without interruption, including: (1) the presumption of innocence; (2) the fact that police can make mistakes; and (3) whether (a) race would be a factor in a juror’s mind, (b) anyone had been a victim of crime, (c) anyone had served on a jury before, and (d) anyone had relatives in law enforcement.
The first interruption from the judge came when Tuley asked a panelist whether it would make a difference if Hayes did not testify. The trial judge stated, “Well, I hate to stop you there . . . , jurors don’t know all the law respecting that,” and went on to instruct the panelists that a defendant has a right not to take the stand. The judge also informed the jurors that they would be instructed not to take such an event into consideration in determining guilt or innocence.
Tuley then asked the panelists a series of leading questions, such as “[Yjou’re expecting me, on behalf of Michael, to do something, right?” and “You expect me to call some witnesses or to put on some evidence?” At that point, the trial judge again intervened and instructed the jury that the defendant has a presumption of innocence and that the State has the burden of proving the defendant guilty beyond a reasonable doubt. The trial court gave a mild reprimand to Tuley, suggesting that Tuley tried to “lead the prospective juror” to a conclusion contrary to law by “saying what [the juror] felt.” The trial judge concluded the interruption by stating, “I don’t mean to interfere with your examination in anyway. Please continue. You’re doing a fine job.”
We find no abuse of discretion in the trial court’s comments.
Later, when Tuley asked the panel whether any of them had “formed any opinion about anything in this case,” the trial court again interjected comments about how it is natural to form opinions whenever one has read anything or has seen something on television. These comments were unnecessary. Tuley’s question was not objectionable or unclear, but it is an overstatement to say that the judge’s comments were prejudicial or disparaging.
Tuley then asked the jury, “Without telling me what your opinion is — because I really don’t care — has anyone formed an opinion, whatever it may be, about this?” Tuley noted at least 10 affirmative responses among the panel of 39. Of those recognized as responding, only four ended up as actual jurors.
The trial judge responded at this point, clarifying his position by saying, “I’m not saying that you can’t get involved in opinions.” The judge explained that the firmness or intensity of prospective jurors’ opinions — whether they have a “definite opinion that it’s going to take some evidence to do away with” — is a proper subject of inquiry. The trial court expressly ruled, however, that it would not allow Tuley to ask the prospective jurors what their specific opinions were.
Hayes contends that the trial court erred in restricting questioning about the substance of prospective jurors’ opinions. He asserts that such questioning should be allowed “to determine if there is sufficient prejudice to dismiss a panel member or even change venue.” Hayes claims that preventing Tuley from inquiring into specific opinions eliminates “the entire basis for voir dire.”
The State argues that the trial court correctly restricted inquiry into the specifics of predispositions because such questioning serves no “useful purpose.” See K.S.A. 22-3408(3). “The pertinent inquiry,” the State reasons, “is whether the juror can put aside his preconceived notions and decide the case on the evidence and instructions given.”
The trial court explained its restriction by suggesting that it was concerned Tuley might use such information to later argue that the trial was not fair.
There are several reasons not mentioned by the trial court that support a decision to restrict inquiry into the specific opinions of prospective jurors as to guilt or innocence. First, as the State contends, the answers are not really pertinent to the ultimate question of impartiality — whether prospective jurors can put aside any predispositions and judge the case fairly, based on the evidence. Second, the answers by those who have formed opinions may influence other prospective jurors who may not have formed opinions about the case. Third, asking a prospective juror specifically whether he or she believes the defendant to be guilty or innocent may be perceived by the juror as “tending to exact a pledge” from the juror. See State v. King, 718 S.W.2d 241, 246 (Tenn. 1986).
Also, it should be noted that the limitation imposed on Tuley by the trial court did not prevent counsel from exploring the sources of information that prospective jurors had read, seen, or heard, which may have provided insight as to the direction of jurors’ leanings, if any.
The Eleventh Circuit has held that a trial court did not err in refusing to allow defense counsel to ask two prospective jurors “which way they were leaning” after they said that they “had a leaning in one direction or another.” Wilcox v. Ford, 813 F.2d 1140, 1150 (11th Cir.), cert. denied 484 U.S. 925 (1987). In King, the Tennessee Supreme Court held that a trial court properly restricted counsel from asking a prospective juror, “[I]f you had a vote right now, how would you vote?” 718 S.W.2d at 246. We agree with the holdings in Wilcox and King.
We conclude that the trial court did not act arbitrarily, fancifully, or unreasonably in restricting Tuley’s inquiry into the specific opinions of prospective jurors as to Hayes’ guilt or innocence.
Voir dire continued after the trial court explicitly ruled that Tuley could not ask about specific opinions. Tuley cites two more examples of what he considers error or misconduct by the trial court.
First, Tuley continued to press the trial court on its ruling about specific opinions, arguing, “I think I have a right to ask them their opinion right now whether they believe my client is guilty or innocent or anything else about this case.” The trial court granted Tuley some leeway and said he could ask the panelists “[i]f they have a definite opinion as to the fact that they think your client is guilty at this particular time.” It is difficult to tell what the trial court meant by “definite” opinions.
The questioning continued:
“[MR. TULEY:] You guys all remember who raised your hand awhile ago when I asked if you had an opinion about the ease? Ms. McKenzie, you had an opinion? You didn’t have. Ms. Seever had an opinion?
“VENIREMAN PATRICIA A. SEEVER: Right.
“MR. TULEY: What’s your opinion about this case, Ms. Seever?
“THE COURT: Well,—
“VENIREMAN PATRICIA A. SEEVER: My thought? There was stolen cars. There was a dead person in the middle of daylight. Somebody did it. And it needs to be proven that it wasn’t him.
“MR. TULEY: If I can prove that it wasn’t him?
“VENIREMAN PATRICIA A. SEEVER: They arrested him. That’s who was. They got him in the car. You have to prove that he was.
“MR. TULEY: Sure. That’s your opinion?
‘VENIREMAN PATRICIA A. SEEVER: I don’t think that he’s guilty. I don’t know that.
“MR. TULEY: I appreciate your honesty. I do.
“THE COURT: Well, ma’am, here again, I think with the adroit questioning by Mr. Tuley, partly, but the way you put your answer there, you said that he’d have to prove that he didn’t do it. Actually, the State has to prove that he did do it. He doesn’t have to prove that he didn’t do it. And I think that’s probably what you meant. But you put it in a little different way, that he would have to prove his innocence, or words to that effect. He doesn’t have to prove his innocence. The State has to prove him guilty beyond a reasonable doubt. Please proceed, Mr. Tuley.”
Ms. Seever did not serve on the jury. She was struck by one of Hayes’ 13 peremptory challenges.
Tuley contends that the trial court’s comments about the “adroit questioning of Mr. Tuley” were prejudicial and improper because they suggested to prospective jurors that Tuley was using “chicanery.” Hayes’ assertion is not persuasive. While we are unable to massage a written record to produce a trial judge’s vocal intonation for our review, we can observe the distance in meaning between “chicanery” and “adroit.”
Next, Hayes challenges the trial court’s interruption in the voir dire of prospective juror Nottingham, who said that he had “formed an opinion.” The trial court responded that it was natural to have an opinion based on what one has read or seen, but that the key is to “try to be as fair as possible.” The trial court did not remove Nottingham for cause because Nottingham said he would “try to do my best” to be impartial. Nottingham did not serve on the jury.
Hayes does not assert error in refusing to remove Nottingham for cause. Such a contention would be futile because Nottingham did not serve on the jury. See State v. Rainey, 233 Kan. 13, 15, 660 P.2d 544 (1983). Instead, he contends he was prejudiced because the trial court’s inteijections could have convinced other prospective jurors that “any bias they had at that time was not worth mentioning.”
When considered in context of the entire voir dire, we do not think the trial court’s comment was prejudicial. Prospective jurors were informed initially that if any juror had a “definite opinion as to the outcome of the case . . . we want your honesty in that respect.” The trial court removed four jurors for cause in whole or in part because they stated they had a firm predisposition about the case. The only line of questioning that the trial court limited concerned the specific content of the prospective jurors’ opinions. Tuley was not restricted from inquiring into the sources of possible bias or into the firmness or extent of the panelists’ predispositions.
Hayes’ claim that he was prevented from supporting a motion to change venue is not confirmed in the record. Hayes’ venue motion was denied 3 weeks before trial. Hayes did not renew his venue motion, file a new motion, or move the trial court to reconsider. If Hayes had no venue motion pending at the time, of voir dire, it is hard to understand how the trial court prejudiced any such motion. Hayes asserts the claim for the first time on appeal, which precludes its consideration. See State v. Johnson, 253 Kan. 75, 91, 853 P.2d 34 (1993).
Special Appellate Review
Finally, we note Hayes’ contention that he is entitled .to special appellate review privileges under K.S.A. 1993 Supp. 21-4627. The State does not respond. Hayes first makes a general request “that the judgment of conviction be reviewed for errors asserted and errors unassigned as provided in K.S.A. [1993 Supp.] 21-4627.” Hayes is asking us to conduct a blanket search of the record for any “unassigned” reversible errors which may have occurred. The request is not well taken. K.S.A. 1993 Supp. 21-4627 does not apply to Hayes’ appeal. The special review provisions of 21-4627 were enacted when the legislature created the hard 40 sentence. See L. 1990, ch. 99, § 7. Although the legislature did not define the phrase “mandatory term of imprisonment,” the phrase appears in the Kansas statutes only in connection with the hard 40. See K.S.A. 1993 Supp. 21-4622 through 21-4630. The legislature intended K.S.A. 1993 Supp. 21-4627 to apply only when the hard 40 has been imposed. The 1994 amendment to 21-4627 limits the application of the special review provisions to death penalty cases. See L. 1994, ch. 252, § 5.
Hayes was convicted under K.S.A. 1993 Supp. 21-3401 and given a life sentence. Because he was 17 when the offense was committed, Hayes could not and did not receive a 40-year mandatory term of imprisonment. K.S.A. 1993 Supp. 21-4622.
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|
The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by David C. Brown from his convictions for first-degree murder and attempted aggravated robbery. He was sentenced to life on the first-degree murder charge and 3 to 10 years on the attempted aggravated robbery charge, with the sentences to run consecutively.
The defendant raises five issues. He claims error in his certification to be tried as an adult, in the admission of evidence, in not giving an instruction on voluntary intoxication, in denying a change of venue, and in the admission of his confession into evidence.
This case arises from the shooting death of Richard Johnston, a clerk at the Kwik Shop in Augusta, Kansas. As a result of cancer surgery to his throat, Richard Johnston had limited ability to verbally communicate. At 2:38 a.m., a 911 call was made by an unidentified person. The dispatcher was unable to discern what the person was saying, but later review of the taped call revealed that the person said, “Eve been shot, been shot.” Augusta does not have an enhanced 911 system, so the dispatcher was unable to trace the location from which the call was made. Around 3:15 a.m., a customer discovered the clerk at the store and reported his death. The Kwik Shop telephone was off the hook. The cause of Johnston’s death was two bullet wounds, one above the right breast and one below the middle chest area. Two additional bullets were recovered from the scene.
Around noon the same day, the defendant was taken into custody by El Dorado law enforcement officers who were investigating the shoplifting of an air pistol from the El Dorado Wal-Mart. Realizing the defendant was from Augusta, the officers Mirandized the defendant and questioned him about his activities the night before and about Johnston’s homicide. The defendant denied any knowledge about the murder but admitted he was at the Kwik Shop the previous night. Augusta authorities were notified, and they came to El Dorado.
At approximately 4:30 p.m., Augusta Officer McNown and KBI Agent Green began interviewing the defendant. The defendant was again Mirandized and the questioning continued for several hours. At that time, the defendant was living in Augusta with Frankie Grissom; Frankie’s husband; and Frankie’s son, Gary Hastings. The Grissom home was in close proximity to the Kwik Shop, and the defendant often frequented the Kwik Shop. The defendant felt that he was in danger of being asked to leave the Grissom home. Frankie had given away the defendant’s dog, and the defendant felt he was not getting along with Frankie. Initially, the defendant stated that friends had come over to the Grissom house on the evening in question. Later, the defendant admitted that he had gone to the Kwik Shop on the night in question to buy cigarettes.
Upon further questioning, the KBI agent accused the defendant of committing the murder. At this time, the defendant stated, “I did it,” and he hit the wall with his fist. The defendant related the following information about the crime. He went to the Kwik Shop and told the clerk, “Give me all your money.” The clerk made a motion, and the defendant shot the clerk three or four times. The defendant said he used a gun that he had had for awhile, which Gary Hastings did not know about. When the officer asked the defendant if he shot three or four times, he said four. At that time, the questioning officers did not know how many shots had been fired, nor had this information been released to the press. The defendant said he grabbed a handful of cigarettes and ran home and that he threw the gun into an alley. The defendant indicated that he robbed the store to get money to buy a car stereo for Frankie Grissom’s birthday. The defendant wrote a letter of apology to the Johnston family, saying he felt bad about what he had done. The defendant also drew a picture of the alley where he claimed to have thrown the gun. However, the defendant later told the officers that he put the gun on the headboard of his bed at the Grissom home.
The defendant was taken to the hospital to check his hand, and upon return to the jail the officers asked if they could tape record an interview with the defendant. The defendant agreed. The defendant then stated that he had lied about shooting the clerk. He said that he had only confessed so he could have a cigarette. At the trial, the defendant testified that he made up the confession based on news reports he had heard about the murder and based on information the officers had related during the questioning.
The officers obtained a search warrant for the Grissom house. They did not find the gun. Frankie Grissom later turned in two guns which she found in the trunk of her car. One of the guns, which belonged to Gary Hastings, may have been the murder weapon, but a positive identification was impossible because the gun was of a quality that left different characteristics on each bullet fired. The parties seem to agree that Gary’s gun was the murder weapon.
In addition to his confession, the defendant discussed the incident with other people. Shawn Smith, who was in a jail cell next to the defendant, testified that the defendant told him about the night in question. The defendant told Smith he had been using alcohol and marijuana that night. The defendant was with his “brother” (Gary Hastings) and another friend. They decided to rob a store, and Gaiy and the defendant fought over the gun. The gun went off and shot Johnston. The defendant then took the gun and shot Johnston three times so no one would know who shot the gun. Ralph Ballinger, who was also in a jail cell near the defendant, testified that the defendant told him he went to the Kwik Shop to rob it. He thought the clerk was reaching for a gun, so he fired one shot into the counter, two shots into the back wall, and one shot at the clerk. The defendant told Ballinger that he then left the store and later returned with two other people. In addition to this story, the defendant also told Ballinger, at a different time, that his “brother” (Gary Hastings) had shot the clerk, not the defendant. Mike Nagy testified that he was in a jail cell with the defendant and that the defendant told him varying stories. The defendant told Nagy that his “brother” Gary Hastings, not the defendant, had shot Johnston. The defendant told Nagy that he (the defendant) had confessed so Gary would not go to prison.
Gary Hastings was issued a subpoena to testify at trial, but authorities were unable to locate him or his mother. Gary did testify at a preliminary hearing, and this testimony was admitted into evidence at trial. Gary stated that he, the defendant, and Travis Church went to the Kwik Shop around 9:00 p.m. to play video games. The boys returned to the Grissom home without incident. Later, the defendant left the Grissom house with Gary’s gun, saying he was going to rob the store. The defendant returned 25 minutes later and said, “I did it, I did it.” The defendant began lifting weights and then said, “I shot him.” He put the gun on the bed. When Gary did not believe the defendant, Gary, Travis, and the defendant returned to the store. Gary stayed near the door and did not see the clerk. The defendant took some cigarettes and a hat, and Gary took some cigarettes. All three returned to Gary’s house.
Travis Church was present at the defendant’s trial and testified as to his version of the evening. Travis stated that the defendant or Gary mentioned something about a robbery. Gary shaved some bullets with a knife and put green paint all over the defendant’s face and his arms and hands. The defendant was also wearing surgical gloves and a face mask. The defendant said he was going to rob the Kwik Shop and left the house. The defendant was going to use his own gun, but Gary told him to take his (Gary’s) gun because it held more bullets. The defendant returned 7 or 8 minutes later and began doing pushups. The defendant then cleaned his face and resumed doing pushups. The defendant told Travis and Gary that the clerk had reached for the phone or something and the defendant shot him. All three then returned to the store. Travis saw some blood on the counter and saw the clerk lying on the floor. The defendant grabbed a hat and some cigarettes, and Gary grabbed some cigarettes. The three then ran back to Gary’s house. Contrary to Travis’ testimony at trial, two people testified that Travis told them Gary Hastings shot Johnston, not the defendant.
At trial, the defendant testified that he did not shoot Johnston but that Gary Hastings did. He testified that he went to the Kwik Shop around 9:00 p.m., alone, to play video games and buy ciga- ' rettes. He then went back home and had a fight with Frankie Grissom. The defendant and Gary went to pick up Travis, and the defendant smoked some marijuana with Travis’ mother. After returning to Gary’s house, the defendant, Gary, and Travis smoked some marijuana and drank some beer. Gary put some green paint on his (Gary’s) face. Travis cut some holes in a stocking mask, which Gary put on. Gary cut the tip off of some bullets. Gary then left for 8 to 10 minutes while the defendant stayed at the house. When Gary returned, he was breathing hard and crying. Gary put the gun on the headboard of his bed, and they smoked another joint. Travis then suggested they go back and rob the store. Travis took a Miami Dolphins hat and either Travis or Gary took some cigarettes. The defendant saw Johnston lying on the floor bleeding. The three returned to Gary’s house. The defendant agreed to take the rap for Gary if the police ever found out because he did not think the police would connect Gary to the crime and whenever the defendant had been in trouble in the past he had gotten out of jail in a few days.
The defendant admitted that he told the police he did it, but he testified that he only confessed because he was told he could talk to Frankie Grissom and Gary if he did so. The defendant considered them family, calling Frankie Grissom “Mom” and Gary “brother.” However, the defendant testified that after talking with his grandmother, Mike Nagy, and others, he decided that it was not worth it to lie. The defendant denied that he killed Johnston.
The jury convicted the defendant of premeditated first-degree murder and attempted aggravated robbery. The defendant received consecutive sentences of life and 3 to 10 years. He appeals his convictions.
I. ADMISSIONS BY GARY HASTINGS
The defendant first claims that the trial court erred in refusing to admit evidence of statements which Gary Hastings made to three witnesses admitting that he (Gary) shot Johnston. The factual background relating to this claim follows.
The defendant proffered, outside the presence of the jury, the testimony of three witnesses concerning statements made to them by Gary Hastings. Laura Haase testified that a couple of weeks after Johnston’s murder, she asked Gary how the defendant was doing. Gary was drunk at the time. Gary told Laura that he, not the defendant, had killed Johnston. Teri Frye testified, that she heard Gary tell people at a party that he had killed Johnston. Gary went into a lot of detail about the crime, with Gary and Travis both stating that Travis had bet Gary $5 that he would not do it. Gary was drinking beer and using cocaine at the party. Frye admitted that she was drinking at that party. T.J. Weston testified that on October 20 or 21, he heard Gary tell other people at a party that he had pulled the trigger. Weston inferred that Gary was talking about Johnston’s murder, although Gary never specified that. Weston was drinking at the party. Weston also testified that the defendant had told him Gary and Travis were with the defendant in the store and had grabbed things after the shots were fired. Each of these witnesses had committed prior criminal offenses.
The trial court heard extensive arguments concerning the admissibility of this testimony. The trial court addressed the admissibility of the statements as declarations against penal interest under Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), and K.S.A. 60-460(j). The court ruled that the statements did not rise to the level of trustworthiness necessary to permit the testimony.
The out-of-court statements which Gary made to Laura Haase, Teri Frye, and T.J. Weston were hearsay statements offered to prove the truth of the matter asserted. Hearsay statements are inadmissible unless one of various hearsay exceptions is satisfied. K.S.A. 60-460(j) provides an exception for declarations against interest:
“Subject to the limitations of exception (f) [concerning confessions], a statement which the judge finds was at the time of the assertion so far contrary to the declarant’s pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability or so far rendered invalid a claim by the declarant against another or created such risk of making the declarant an object of hatred, ridicule or social disapproval in the community that a reasonable person in the declarant’s position would not have made tire statement unless the person believed it to be true.”
K.S.A. 60-460(j) includes a requirement that the defendant make a showing of trustworthiness by the out-of-court declarant.
“ ‘The statute does, however, require, as a preliminary measure of trustworthiness, that the trial judge, prior to admission of such a declaration, make a finding that tire character of tire declaration was of such nature a reasonable man would not make it unless he believed it to be true. Probability of veracity is the safeguard sought; the reasonable man test is the criterion to be used. The judge may in a particular case be faced with a difficult decision where caution should be exercised; in making it he necessarily must be vested with a wide discretion. And it should be kept in mind he is concerned with admissibility, not weight, of evidence.’ [Thompson v. Norman, 198 Kan. 436, 442-43, 424 P.2d 593 (1967).]” State v. Jackson, 244 Kan. 621, 624, 772 P.2d 747 (1989).
In State v. Jones, 246 Kan. 214, 219, 787 P.2d 726 (1990), this court specified factors which a judge may consider in exercising discretion as to the admissibility of a declaration against interest:
“A trial judge has wide discretion in determining the admissibility of a declaration against interest and may consider such factors as the nature and character of the statement, the person to whom the statement was made, the relationship between the parties, and the probable motivation of the declarant in making the statement.”
In Chambers v. Mississippi, 410 U.S. 284, the United States Supreme Court discussed the admissibility of statements against penal interest. Chambers sought, unsuccessfully, to admit trial testimony by several witnesses that a third party had confessed to the murder with which Chambers was charged. The Supreme Court reversed the trial court and held that such admissions were admissible. The court discussed four factors in holding that the admissions were admissible: First, the admissions were made spontaneously to a close acquaintance shortly after the murder. Second, each confession was corroborated by some other evidence in the case. Third, each confession was unquestionably self-incriminatory and against interest. Finally, the third party who was said to have admitted committing the crime was present in the courtroom, had been under oath, and was available for cross-examination. 410 U.S. at 300-01.
Here, Gary was unavailable at trial. Gary’s testimony from the preliminary hearing was admitted under hearsay exception K.S.A. 60-460(c) (prior testimony where the defendant had the opportunity for cross-examination). The defendant reasons that because the State was permitted to present Gary’s previous testimony, the State opened the door for Gary’s other out-of-court statements. The defendant cites no authority for this argument. Each hearsay statement admitted at trial must satisfy a hearsay exception. Prior testimony of an unavailable witness may be admitted under a hearsay exception, but other out-of-court statements made by the same witness are not admissible when a specific hearsay exception does not apply to the other statements. The fact that Gary’s prior testimony was admitted does not make his other out-of-court hearsay statements admissible unless the statements satisfy some other hearsay exception.
However, some of the requirements of K.S.A. 60-460(j) and the factors mentioned in Chambers appear to be satisfied for at least two of the admissions. The statements Gary made to Laura Haase and Teri Frye were unquestionably against Gary’s interest and subjected him to potential criminal liability. The statements were admissions that he killed Johnston. They were corroborated by other evidence, including the defendant’s own testimony. The statements were also corroborated by the testimony of witnesses who stated Travis Church told them Gary had committed the murder and the testimony that Gary’s gun was the murder weapon. The statements appear to have been made spontaneously and without motivation. The only factor of Chambers which does not appear to be satisfied is that the declarant be available for cross-examination. This is not a requirement under K.S.A. 60-460(j). See Jackson, 244 Kan. at 624.
However, K.S.A. 60-460(j) does require a showing of trustworthiness. The trial court found that this trustworthiness was not shown.
The statement which T.J. Weston heard, although it was against Gary’s interest, does not have the requisite trustworthiness. The statement admitted that Gary “pulled the trigger” but gave no other details of the shooting. A similar situation was discussed in Jackson, 244 Kan. 621. There, the defendant was charged with stabbing the victim at a club. This court discussed the admissibility of a hearsay statement in which the declarant, Tommie Mays, told the witness, Hankins,' about a stabbing and said that it was better the other guy than him. Mays indicated that the stabbing was at the club but did not indicate the date of the stabbing or the other victim’s name. This court stated:
“Such vague and indefinite admissions fall short of the necessary showing of credibility and trustworthiness required to establish a proper foundation for admissibility of Hanldns’ testimony. We find no error in the trial court’s determination that the Hankins testimony was not only irrelevant but also lacked reliability.” Jackson, 244 Kan. at 626.
Likewise, T.J.’s proffered testimony about Gary’s admission lacked reliability and trustworthiness. The admission mentioned pulling the trigger but did not indicate who the victim was, where the shooting occurred, or the date of the shooting. The fact that T.J. inferred Gary was referring to Johnston’s murder at the Kwik Shop cannot be imputed to Gary. The trial court did not err in excluding T.J.’s testimony.
Gary’s admissions to Laura Haase and Teri Frye show more indicia of trustworthiness and reliability. The statements were corroborated by other evidence. The statements appear to reference more details connecting Gary to Johnston’s murder at the Kwik Shop. They were made within several weeks of the crime. Although the statements were not made to close acquaintances (cf. Chambers, 410 U.S. at 300), the statements were made to persons to whom Gary would presumably have no interest in lying. See Jones, 246 Kan. at 219 (admission made to person who met the declarant that same day was admissible). Gary’s admission to Laura Haase indicated not only that he shot Johnston, but also that the defendant had confessed and had not really done it. The admission to Teri Frye included additional information, such as a $5 bet be tween Gary and Travis. Teri Frye was 15 years of age and had expressed orally and in writing that she was in love with Gary.
The trial court may have abused its. discretion in excluding Gary’s admissions made to Laura Haase and Teri Frye. That, however, does not end the inquiry. In Jones, 246 Kan. at 219, this court indicated that a harmless error analysis applies where admissible hearsay is wrongfully excluded. To declare an error harmless, this court must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. White, 246 Kan. 28, 37, 785 P.2d 950, aff’d as modified 246 Kan. 393, 789 P.2d 1175 (1990).
Here, the evidence of the defendant’s guilt was overwhelming. The defendant had confessed to the police and made admissions to other witnesses. The jury had before it evidence that Gary, not the defendant, committed the crime. There was the defendant’s own testimony that Gary did it as well as statements by Travis Church that Gary committed the crime. There was also evidence that Gary’s gun was the murder weapon. The jury chose to disregard this evidence and convicted the defendant either as a principal or as an aider and abettor. Moreover, the trial court’s exclusion of the evidence was harmless error because the testimony of Laura Haase and Teri Frye did not clearly exculpate the defendant in that their motives may have been tainted. The defendant wrote letters from jail, which were intercepted, giving every indication he encouraged witnesses to give false testimony and to conceal and destroy evidence. We conclude any error in excluding this testimony was harmless because it had little, if any, likelihood of having changed the result of the trial.
II. VOLUNTARY INTOXICATION
The defendant’s next argument is that the trial court erred in rejecting his request that the jury be instructed on the defense of voluntary intoxication. K.S.A. 21-3208(2) provides:
“An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”
“A defendant may rely on the defense of voluntary intoxication where the crime charged requires specific intent, and an instruction thereon is required if there is evidence to support the defense.” State v. Gadelkarim, 247 Kan. 505, Syl. ¶ 1, 802 P.2d 507 (1990).
The defendant reasons that voluntary intoxication was a viable defense because the jury was given an instruction on aiding and abetting. Aiding and abetting is a specific intent crime. See State v. Warren, 252 Kan. 169, Syl. ¶ 6, 843 P.2d 224 (1992); State v. McDaniel & Owens, 228 Kan. 172, 178-79, 612 P.2d 1231 (1980). Additionally, the court is aware that premeditated first-degree murder, the crime with which the defendant was charged (and convicted), is itself a specific intent crime, making the defense of voluntary intoxication available regardless of the instruction on aiding and abetting.
The trial court rejected the defendant’s proposed instruction on voluntary intoxication, reasoning that although there was evidence to indicate the defendant had been drinking or smoking marijuana, there was no evidence he was intoxicated.
A defendant is entitled to have the jury instructed on his or her theory of defense even if the evidence is slight. State v. Hunter, 241 Kan. 629, 646, 740 P.2d 559 (1987). However, unless evidence is presented that shows the defendant was intoxicated to the extent that his or her ability to form the requisite intent was impaired, an instruction on the defense of voluntary intoxication is not required. Gadelkarim, 247 Kan. at 508; see State v. Smith, 254 Kan. 144, Syl. ¶ 2, 864 P.2d 709 (1993); State v. Shehan, 242 Kan. 127, Syl. ¶ 5, 744 P.2d 824 (1987). Without evidence of impairment, the mere consumption of alcohol and drugs is insufficient to require a voluntary intoxication instruction. See Shehan, 242 Kan. at 132. The defendant has the burden of showing that he or she was so intoxicated that his or her mental faculties were impaired by the consumption of alcohol or drugs. See State v. Keeler, 238 Kan. 356, 360, 710 P.2d 1279 (1985).
The defendant has not met his burden here. Although there was evidence, presented by both the State and the defense, that the defendant had consumed alcohol and drugs on the night of the offense, the record is devoid of evidence that the defendant’s consumption of those substances impaired his mental faculties so as to render him unable to form the requisite intent. There was no evidence that the defendant’s physical or mental abilities were impaired. In fact, the evidence demonstrates the defendant’s mental abilities were clearly intact in that he was able to recall in detail the events which occurred the night of the offense. See State v. Ludlow, 256 Kan. 139, 147-48, 883 P.2d 1144 (1994); Smith, 254 Kan. at 152; State v. Gonzales, 253 Kan. 22, 26, 853 P.2d 644 (1993); Shehan, 242 Kan. at 131-32; Keeler, 238 Kan. 356; cf. Gadelkarim, 247 Kan. at 509. The trial court did not err in rejecting the defendant’s proffered instruction on voluntary intoxication.
III. PROSECUTION AS AN ADULT
The defendant next contends that the trial court erred in certifying him for prosecution as an adult.
The court may authorize a juvenile to be prosecuted as an adult if the juvenile was 16 years old at the time of the offense and there is substantial evidence that the juvenile should be prosecuted as an adult. K.S.A. 38-1636(f)(3). K.S.A. 38-1636(e) sets forth eight factors which shall be considered in determining whether the juvenile should be prosecuted as an adult:
“(1) The seriousness of the alleged offense and whether the protection of tire community requires prosecution as an adult; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant under the Kansas juvenile code or a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under this code; and (8) whether the interests of the respondent or of the community would be better served by criminal prosecution.”
K.S.A. 38-1636(e) further states that “[t]he insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue.” Our standard of review is whether there is substantial evidence supporting die trial court’s decision. See K.S.A. 38-1636(f)(3); State v. Tran, 252 Kan. 494, 508, 847 P.2d 680 (1993).
The defendant was 17 years old at the time of this offense, 3 weeks from his 18th birthday. The trial court noted the defendant’s age and stated that it had considered all eight factors mandated by K.S.A. 38-1636(e). The court specifically noted the nature and seriousness of the crime (factor 1); the fact that the crime was committed in an aggressive, violent, and premeditated manner against a person (factors 2 and 3); the defendant’s previous contact with the criminal justice system (he had several contacts with the juvenile authorities in Florida for stealing a hood ornament, shoplifting, and a series of residential burglaries) (factor 5); the defendant’s home environment and emotional attitude (factor 6); the ability and resources which Kansas has available to rehabilitate the defendant (factor 7); and the needs of the community (factors 1 and 8). The only factor the trial court did not specifically mention was factor 4, evaluating the number of alleged offenses unadjudicated and pending. There was testimony that the defendant had been arrested for shoplifting at a Wal-Mart store in El Dorado the day after this offense, but there was no testimony as to whether that offense was adjudicated or pending at the time of the certification hearing.
The defendant argues that although he was 17 years old at the time of the offense, he was emotionally and intellectually much younger. He points out his family background. The defendant’s mother was a teenager when he was bom, and he never knew his father. He was eventually adopted by a man his mother married. This man physically and sexually abused the defendant. The abuser received only 5 years’ probation. When the defendant’s mother could no longer handle him, she sent him from Florida to Kansas to live with a cousin. The defendant’s mother eventually moved to Kansas. The defendant lived with her briefly, but their relationship was difficult. Thus, the defendant continued to live with his cousin or in foster care. The defendant was eventually placed in SRS custody, but he continued to run away from his placements. The defendant’s mother, who had returned to Florida, and his former principal in Florida testified that the defendant was in need of a highly structured system. However, such treatment had never been provided to defendant. The defendant stresses that not only did his family fail him, but the government failed him as well. Finally, he reasons that the juvenile justice system has adequate resources to rehabilitate him.
There was no error in certifying the defendant for prosecution as an adult. The trial court adequately considered each of the factors mandated by K.S.A. 38-1636(e). Indeed, the defendant’s argument seems to be not that the trial court failed to consider the factors, but that the trial court erred in its analysis in weighing the factors. The defendant’s previous history includes prior contact with authorities. He was charged with first-degree murder, an aggressive and premeditated crime against a person. Moreover, the defendant was only 3 weeks shy of his 18th birthday at the time of the offense. Even if there was inadequate evidence on any one factor, such as the availability of juvenile resources or his emotional immaturity, that fact alone does not preclude prosecution as an adult. See K.S.A. 38-1636(e). Our review of the record reveals substantial evidence supporting the trial court’s decision to certify the defendant for prosecution as an adult.
IV. CHANGE OF VENUE
For his next claim of error, the defendant asserts that the district court abused its discretion by denying his motion for change of venue. K.S.A. 22-2616(1) states that the trial court, upon motion of the defendant, shall transfer the case to another county or district “if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.”
This court recently stated the standard of review concerning the denial of a change of venue:
“The determination of whether to change venue is entrusted to the sound discretion of the trial court; its decision wiE not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant. The burden is on the defendant to show prejudice exists in the community, not as a matter of speculation, but as a demonstrable reality. The defendant must show that such prejudice exists in the community that it was reasonably certain he or she could not have obtained a fair trial.” State v. Butler, 257 Kan. 1043, Syl. ¶ 2, 897 P.2d 1007 (1995).
See State v. Lumbrera, 252 Kan. 54, Syl. ¶¶ 2, 3, 845 P.2d 609 (1992); State v. Grissom, 251 Kan. 851, 927-29, 840 P.2d 1142 (1992).
The defendant argues that pretrial publicity surrounding the case created circumstances warranting a change of venue. He points out that one juror opined that all of the prospective jurors had heard about the case. After “numerous” jurors were excused for cause when questioned about pretrial publicity, the remaining venirepersons “were getting a clear message. If they talked too much about the pretrial publicity or acknowledged that they had an opinion about the case, they would not have a chance to get on the jury.” Even a cold reading of the transcript of voir dire, the defendant reasons, demonstrates that it was impossible to impanel a fair and impartial jury in Butler County.
The jury selection process occurred as follows. Forty venirepersons were called initially. The court extensively questioned the venire about pretrial publicity. Only eight venirepersons were excused for cause (three of whom knew the victim) based on prior knowledge of the case due to media publicity or other sources.
The defendant’s counsel questioned each venireperson individually about his or her knowledge of the case. Of the 40 venirepersons, approximately 28 indicated drat they had either seen something about the case in the newspaper or on television, or they had heard about it from a friend or relative. Of those, 13 specified that they had heard about the case only immediately after it happened, and another 6 indicated that they had heard about the case only in passing and did not follow it. Each venireperson indicating that he or she had heard or read about the case stated that he or she had not formed an opinion, could be fair and impartial, and could decide the case based on the evidence.
Following this questioning, the defendant renewed his motion for a change of venue. The defendant’s counsel suggested that the venirepersons were, as a group, somewhat reluctant to respond to questions, particularly those concerning whether the venirepersons had heard about the case. He posited that more extensive questioning would reveal even more knowledge about the case. Counsel mentioned 14 newspaper articles of which he had copies. He specifically noted an article which apparently ties the defendant to another murder. The defendant’s counsel pointed out that the pretrial publicity was an ongoing occurrence, with an article as recent as a few days before trial. Counsel concluded that the defendant’s opportunity for a fair trial had been compromised, arguing that the dismissal of several jurors for cause because they had already formed opinions about the case poisoned the entire jury pool.
The defendant’s argument that the venirepersons were not entirely forthcoming in admitting their knowledge of this case based on pretrial publicity is entirely speculative. The extent of pretrial publicity is not clear from the record on appeal. However, during voir dire various persons mentioned television reports and newspaper articles in the Augusta, El Dorado, and Wichita newspapers. Each venireperson was directly questioned about how extensively he or she had read or heard about the case. All venirepersons indicating some knowledge about the case, except those excused for cause, unequivocally stated that they had not formed an opinion about the case. The venirepersons stated that they could be fair and impartial and would decide the case based on the evidence. These responses do not suggest such prejudice against the defendant due to pretrial publicity that the defendant was unable to receive a fair trial in Butler County.
In State v. Ruebke, 240 Kan. 493, 500-01, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987), this court stated:
“Media publicity alone has never established prejudice per se. The trial court had no difficulty in finding from the jury panel jurors who stated that they could render a fair and impartial verdict. The small number of jurors dismissed by the court for cause and the effort of the judge to press no one into jury service who showed the slightest hint of prejudice established that there was no abuse of discretion in denying a change of venue. Unless we are to assume that (1) the jurors selected to try the defendant violated their oath when they swore that they could give the defendant a fair trial or (2) an individual can commit a crime so heinous that news coverage generated by that act will not allow the perpetrator to be brought to trial, the defendant has not established substantial prejudice. There was no abuse of discretion on the part of the court in denying the defendant’s motion for change of venue.”
See Butler, 257 Kan. at 1057.
As in Ruebke, the trial court here had no difficulty in finding jurors who could render a fair and impartial verdict. Of 48 venirepersons examined, 40 had either not heard any pretrial publicity or had unequivocally stated that they were not influenced by the pretrial publicity. There is no evidence here that the jurors did not decide the case based solely on the evidence presented at trial. The trial court did not abuse its discretion in denying the defendant’s motion for a change of venue.
V. DEFENDANT’S CONFESSION
Finally, the defendant argues that the trial court erred in admitting into evidence his confession. On April 13,1993, the defendant filed a motion to suppress his confession. Reasons given were that the confession was not freely, voluntarily, and intelligently made and that the defendant was under severe duress when he signed the Miranda waiver.
The trial court conducted a full pretrial hearing on the admissibility of the defendant’s confession. David McNown testified that he and KBI Agent Green began interviewing the defendant around 4:30 p.m. The defendant had been in custody since noon that day, and had been previously interviewed by other officers while in custody. The interview with Green and McNown took place in a 12 by 20 foot library room. The defendant had no leg or other restraints on, and the room temperature was comfortable. Green explained the Miranda rights to the defendant. The defendant did not state that he did not understand his rights. The defendant indicated that he had not previously asked for an attorney. After being advised of his Miranda rights, the defendant initialed a statement indicating he understood each right and signed a waiver. To indicate his understanding of his rights, the defendant stated, “If I don’t want to talk I don’t have to. I can have a lawyer if I want. What I say can be used in court.” At that time, he did not appear to be, nor did he state that he was, under the influence of alcohol or drugs.
Green began questioning the defendant about his activities on October 19 and 20, 1992. Around 5:30 p.m., McNown obtained a hamburger and a coke for the defendant. Then, Green confronted the defendant and laid out various scenarios of what might have happened. Around 7:00 p.m., the defendant confessed, stating, “I did it,” and hitting the wall with his fist. During the questioning, the defendant appeared at various times bored, quiet, and on the verge of crying. After saying, “I did it,” the defendant began crying uncontrollably. Green placed his hand on the defendant to comfort him. Green asked if the defendant might want to express his apologies to the Johnston family in writing. The defendant did so. He explained to the officers in some detail what occurred and why. After making his confession, the defendant indicated that he would like to speak with his “mother” and “brother,” Frankie Grissom and her son, Gary Hastings. McNown testified that the defendant never asked for an attorney.
The interview with Green and McNown was not recorded. McNown and Green indicated that they did not routinely record interviews. However, McNown and Green did take detailed notes of the interview.
The defendant was taken to the hospital to have his hand examined. Upon returning, the prosecutor asked the defendant, with Green and McNown present, if he could tape-record an interview. The defendant then recanted his confession, saying that he had lied and that he had no knowledge about the homicide.
The trial court found that the confession was freely and voluntarily made, following a knowing and intelligent Miranda waiver. Thus, the trial court denied the defendant’s motion to suppress his confession.
In State v. Morris, 255 Kan. 964, 971, 880 P.2d 1244 (1994), this court reiterated our standard of review concerning admission of custodial statements:
“The first question for this court to determine is whether there is substantial competent evidence to support the district judge’s finding that the confession was voluntary. In determining whether a confession is voluntary, a court is to look at the totality of the circumstances. The burden of proving that a confession or admission is admissible is on the prosecution, and tire required proof is by a preponderance of the evidence. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. State v. Price, 247 Kan. 100, Syl. ¶ 1, 795 P.2d 57 (1990). When a trial court conducts a full hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely and voluntarily given, and admits the statement into evidence at trial, an appellate court accepts that determination if it is supported by substantial competent evidence. See State v. Johnson, 253 Kan. 75, 83-84, 853 P.2d 34 (1993).”
See also State v. Garcia, 250 Kan. 310, Syl. ¶ 2, 827 P.2d 727 (1992) (“If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court.”).
The defendant argues that his statement, “I did it,” is not reliable. He points out that he was in custody for over 4 hours before Green and McNown began questioning him. The defendant suggests that he merely told the officers what they wanted to hear. The defendant stresses that he was only 17 and had only a tenth grade education, most of which was in special education classes. The defendant had a history of childhood abuse and psychological problems. He had an addictive personality and was not permitted to smoke cigarettes during the questioning. The defendant was using drugs the night before the confession. Finally, the defendant suggests that because the interview was not tape-recorded, it is unknown what manner of “persuasion” was used to elicit the defendant’s confession.
The defendant’s argument that the confession was somehow coerced is speculative. The defendant was 3 weeks away from his 18th birthday. He had had contact with the police before. Although he had been in custody for 7 hours before his confession, he was not in any restraints. Contrary to the defendant’s assertion that his confession was not reliable, the evidence at trial revealed that not only did the defendant state, “I did it,” he also gave a description of how he committed the crime. The totality of the circumstances shows that the defendant knowingly and intelligently waived his Miranda rights and made a voluntary confession. There was substantial competent evidence to support the trial court’s finding that the confession was voluntary and admissible.
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Per Curiam,-.
This is an original proceeding in discipline filed by the Disciplinary Administrator’s office against Robert L. Morse, an attorney admitted to the practice of law in Kansas.
The complaint filed against respondent alleged violations of MRPC 1.1 (1994 Kan. Ct. R. Annot. 292) (competence), MRPC 1.3 (1994 Kan. Ct. R. Annot. 297) (diligence), and MRPC 1.4 (1994 Kan. Ct. R. Annot. 302) (communication).
At the hearing before the panel of the Kansas Board for Discipline of Attorneys, respondent and the Disciplinary Administrator stipulated to the facts and that respondent’s conduct in handling the subrogation claims for American Family Mutual Insurance Company (American Family) constituted a violation of the Model Rules of Professional Conduct as set forth in the formal complaint. Respondent presented evidence in mitigation.
The hearing panel then considered the following mitigating factors: (a) Respondent is a sole practitioner and has practiced in Johnson County since 1976; (b) his law practice is presently exclusively criminal and traffic law; (c) upon its request, respondent returned all the files to American Family in August 1992; (d) respondent fully cooperated with the Disciplinary Administrator’s office; (e) there was no evidence of continued misconduct by respondent; (f) respondent recognized that he was not able to handle the subrogation claims; and (g) respondent has had three previous disciplinary complaints filed against him, each resulting in the imposition of informal admonitions.
After reviewing the facts and considering mitigating factors, the panel recommended censure published in the Kansas Reports, pursuant to Supreme Court Rule 203(a)(3) (1994 Kan. Ct. R. Annot. 189), stating:
“In reaching its recommendation, the panel has taken into consideration the Respondent’s candid admissions of his wrongdoing in this case, as well as all suggestions of the parties with respect to the discipline to be imposed. The panel cannot overlook the seriousness of the violations in this case by an experienced attorney, together with the pattern of past disciplinary matters where discipline has been imposed. The fact that the client in this case is a corporation rather than an individual makes no difference in vulnerability. Respondent’s pattern of multiple misconduct on the files during the time frame in question cannot be condoned. Accordingly, it is the unanimous recommendation of the panel that Respondent be disciplined by public censure pursuant to Rule 203(a)(3) and costs be assessed to Respondent.”
The panel further recommended that costs be assessed against respondent. Respondent did not file exceptions to the findings or conclusions set forth in the report of the hearing panel of the Kansas Board for Discipline of Attorneys.
The office of the Disciplinary Administrator recommends published censure as an appropriate sanction. Respondent agreed with and stipulated to the recommendation of published censure.
Having considered the record herein and the report of the panel, a majority of this court accepts and concurs in the findings, conclusions, and recommendations of the hearing panel.
It Is Therefore Ordered that Robert L. Morse be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) for his violations of the Model Rules of Professional Misconduct.
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
Six, J.:
In 1980, P.S. (natural mother) and M.S. were married. While they were living together as husband and wife, D.B.S. was conceived and bom. Four years later, M.S. and P.S. were involved in a hotly contested divorce. P.S. initially alleged that G.F. rather than M.S. was the biological father of D.B.S.; she later withdrew her motion for determination of D.B.S/s parentage upon the advice of her counsel. Eventually, P.S. and M.S. were granted joint custody of D.B.S., with M.S. given residential custody and P.S. given visitation rights. Since the divorce, the parties have continued to be litigious concerning child custody issues.
A year or two after the divorce, G.F. and P.S. began living together; subsequently, G.F. filed a motion for a judicial determination of the paternity of D.B.S., pursuant to the Kansas Parentage Act, K.S.A. 38-1110 et seq. He claimed he had a constitutionally protected interest sufficient to compel the paternity determination. A guardian ad litem was appointed for D.B.S., and the parties stipulated that Dr. Thomas Coleman should perform a psychological evaluation on all of the parties as a basis to evaluate D.B.S/s best interests. Following the evaluations, Dr. Coleman advised the court that blood tests to determine paternity would not be in D.B.S/s best interests. The trial court so held. The Court of Appeals affirmed tihe trial court and further held that, under the circumstances of the case, G.F. had no constitutionally protected interest requiring the determination of the paternity of D.B.S.
We have reviewed and considered the briefs, the arguments, and the record in this case. We conclude the unanimous panel of the Court of Appeals was correct. We therefore adopt the published opinion of the Court of Appeals, opinion by Larson, J., In re D.B.S., 20 Kan. App. 2d 438, 888 P.2d 875 (1995), affirming the trial court.
Larson, J., not participating.
Robert H. Miller, C.J. Retired, assigned. | [
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|
The opinion of the court was delivered by
Lockett, J.:
Eddie McClain, Jr., appeals his conviction of aggravated robbery. This court has jurisdiction pursuant to K.S.A. 1994 Supp. 22-3601(b)(1).
McClain’s pro se brief and that of his appellate counsel raise four issues for our consideration: (1) whether the evidence at trial was sufficient to show guilt beyond a reasonable doubt; (2) whether the search of the vehicle in which McClain was riding was permissible; (3) whether McClain was denied a timely preliminary examination; and (4) whether McClain was denied the effective assistance of counsel.
On February 21, 1993, the employees of a Wendy’s restaurant in north Topeka, were robbed by two black males masked with nylon stockings and armed with semi-automatic handguns. The robbers forced an employee to place the cash from the register into a Wendy’s bag. Altogether, the robbers took over $2,000.
Shortly after the robbery, Trooper Dan Smith of the Kansas Highway Patrol heard a dispatch broadcast by the Topeka Police Department indicating that an armed robbery had just taken place. The broadcast described the individuals involved in the armed robbery as “two to three black males, one armed with a handgun and possibly wearing a dark stocking hat . . . and the vehicle involved was a small black pickup truck.” In response to this broadcast, Trooper Smith positioned his patrol car near the intersection of Highway 75 and Interstate 70 in Topeka.
Within a few minutes, Trooper Smith observed a small, black pickup truck occupied by two black males traveling on Highway 75 away from the location of the north Topeka Wendy’s. Smith pulled behind the vehicle and began following it as it exited eastbound onto 1-70. After the vehicle exited 1-70 onto a west Topeka street, Trooper Smith observed that it had a broken brake light. Trooper Smith activated his emergency equipment to stop the vehicle. During the time he was following the vehicle with his emergency lights on, Trooper Smith observed the driver and passenger acting suspiciously. The vehicle stopped in a parking lot.
The trooper informed the driver that he had stopped the truck because of a broken brake light and because he suspected the occupants were involved in an armed robbery. While Trooper Smith was speaking to the driver, he noticed that the passenger, later identified as McClain, attempted to reach inside his coat. Trooper Smith ordered both occupants of the truck to keep their hands on the dash. Other officers arrived on the scene. When the driver was not able to produce a driver’s license, Trooper Smith removed the driver from the vehicle and placed him under arrest. Other officers removed McClain from the vehicle and arrested him for the robbery.
A nylon stocking, consistent with the type used in the robbery, was observed in McClain’s waistband as he was removed from the vehicle. Officers searched the truck and recovered a 9 mm. semiautomatic handgun under the passenger seat, a Wendy’s bag containing $2,169.86 in cash, and several Wendy’s deposit slips in the glove box.
McClain was charged and convicted of one count of aggravated robbery. A second count of aggravated robbery involving a separate incident had been charged but was later dismissed. McClain was subsequently sentenced to a term of 15 years to life.
Sufficiency of Evidence
The standard of review when the sufficiency of the evidence is questioned on appeal 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. Bowen, 254 Kan. 618, 631, 867 P.2d 1024 (1994); State v. Graham, 247 Kan. 388, Syl. ¶ 5, 799 P.2d 1003 (1990). The State, to obtain an aggravated robbery conviction under K.S.A. 21-3427, was required to prove that McClain (1) committed a robbery and (2) was armed with a dangerous weapon or inflicted bodily harm upon any person in the course of such robbery.
A review of the record reveals that two Wendy’s employees testified that they were robbed by two black men brandishing guns. The employees gave the police a description of the men, their clothing, and the robbers’ vehicle. McClain fit the general description given by the employees. McClain and another black male were apprehended within minutes of the robbery in a vehicle which fit the description of the one spotted leaving the scene of the robbery. McClain’s clothing fit the general description given by the Wendy’s employees. A handgun and a Wendy’s sack containing money and Wendy’s deposit slips were found inside the truck in which McClain was a passenger. A nylon mask was found partially concealed in the waistband of McClain’s pants. Despite the absence of an eyewitness identification, this court can easily conclude that, after a review of all of the evidence, when viewed in the light most favorable to the prosecution, there is sufficient evidence for a rational factfinder to find McClain guilty beyond a reasonable doubt.
Search of the Vehicle
McClain filed a motion to suppress the evidence seized during the search of the vehicle prior to trial. The trial judge denied McClain’s motion, stating:
“I’m going to deny the motion and find that it was a lawful stop based upon probable cause on the police dispatch on the robbery and also the broken taillight, and that incidental to that stop and arrest of the driver, that the search is a valid search.’’
McClain contended that his rights under the Fourth Amendment were violated and that the police exceeded their authority under K.S.A. 1992 Supp. 22-2402(1)’s power to stop a suspect when the vehicle in which he was a passenger was stopped and subsequently searched. McClain argued that although the stop for a broken brake light, a traffic infraction, was valid, the officer improperly exceeded the scope of the traffic infraction by searching the pickup. The State responded that 22-2402(1) was not the authority used to stop and question McClain because the search was incident to an arrest.
K.S.A. 1992 Supp. 22-2402(1) provides:
“Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand . . . the name, address of such suspect and an explanation of such suspect’s actions.”
As noted in State v. Johnson, 253 Kan. 75, 80, 853 P.2d 34 (1993), K.S.A. 1992 Supp. 22-2402 is a codification of the United States Supreme Court decision in Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968). In Terry, 392 U.S. at 21, the Court held that an officer may stop and frisk an individual even though the officer does not have probable cause to believe a crime has been or is being committed if the officer is able to point to “specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” See State v. McKeown, 249 Kan. 506, 508-09, 819 P.2d 644 (1991).
This court’s standard of review is well settled:
“If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence this court on review will not substitute its view of the evidence for that of the trial court.”
“Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” State v. Garcia, 250 Kan. 310, Syl. ¶¶ 2, 3, 827 P.2d 727 (1992).
The stop of a vehicle, under the circumstances set forth in K.S.A. 1992 Supp. 22-2402(1) and Terry, is different than merely approaching an individual in a public place. The stopping of a vehicle by a law enforcement officer always constitutes a seizure. Therefore, to stop a moving vehicle an officer must have articulable facts sufficient to constitute reasonable suspicion of a violation. See Delaware v. Prouse, 440 U.S. 648, 661-63, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). To stop a vehicle to investigate circumstances which provoke suspicion, an officer must be aware of “specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion" that the vehicle contains individuals involved in criminal activity. United States v. Brignoni-Ponce, 422 U.S. 873, 884, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975); State v. McKeown, 249 Kan. at 510.
To illustrate that the seizure of evidence from a vehicle stopped for a traffic offense was an improper exercise of power, McClain relies upon State v. Damm, 246 Kan. 220, 787 P.2d 1185 (1990), and State v. Garcia, 250 Kan. 310. Damm involved a stop of a vehicle after an officer observed its taillights were defective. After stopping the car, the officer demanded identification from the driver and his two passengers. All three complied and were left sitting in the vehicle while the officer returned to the police car to do a “routine records check” on each of the three occupants. The check on one of the passengers revealed an outstanding warrant for his arrest. The officer returned to the car and arrested the passenger pursuant to the warrant. The officer then proceeded to search the car. The search turned up drug paraphernalia and a small supply of cocaine, after which the officer arrested all three occupants for possession of cocaine. The State conceded there was no probable cause, no consent, and no plain view justification for the search. The major reason advanced by the officer for the search was that it was “department policy.” Damm, 246 Kan. at 220-21.
In Damm, the defendant driver of the vehicle filed a motion to suppress the evidence obtained as a result of the search of the car. The trial court granted the motion to suppress and discharged the defendant. The State appealed. This court affirmed the trial court’s suppression of the evidence, stating:
“The officer in this case had no reasonable suspicion that there were outstanding warrants for the passengers. He had no report of the commission of a crime, saw nothing within the car which would indicate to him that the occupants had committed any offense, and had no reasonable justification for requiring identification of the passengers and running record checks on them. The seizure of the three occupants of the vehicle while “routine record checks” were made of all occupants was unreasonable. [Citation omitted.].
“Without the unreasonable detention, the officer had no reason to arrest [the passengers or the driver]. Without the arrest, there could be no search. Without the search, there was no evidence against [the defendant driver]. The detention and search being unlawful, the evidence is inadmissible as fruit of the poisonous tree. [Citations omitted.]” 246 Kan. at 224-25.
In State v. Garcia, this court.upheld the district court’s suppression of evidence obtained from a search of the defendant’s vehicle and statements the defendant made after he was issued a warning ticket and released from custody. The defendant was stopped after an officer observed him make an unsignaled lane change. During the stop, the officer ordered the defendant to gather the vehicle’s registration and proof of insurance and accompany him back to the patrol car. After questioning the defendant, the officer issued him a warning ticket for failure to signal a lane change. The officer handed the defendant the ticket and told him he was free to go. As the defendant reached to open the door and exit the patrol car, the officer asked the defendant if he would consent to a search of the automobile. After several attempts, the officer obtained the defendant’s verbal and written consent to search the vehicle. In searching the vehicle, the officer discovered marijuana concealed in the trunk. The defendant was arrested, handcuffed, and taken to a highway patrol office for interrogation, where he eventually signed a written statement. 250 Kan. at 311-313.
The defendant filed a motion to suppress the evidence prior to trial. In a memorandum decision, the district judge ordered the evidence obtained as a result of the search and all statements made subsequent to the delivery of the warning ticket suppressed. Although the judge doubted the stated reason for the stop, the judge determined the State had sustained its burden of proof by a preponderance of the evidence that the initial stop of Garcia’s vehicle was valid. The judge further noted, however, that there was a second or continued seizure of the defendant which did not pass constitutional scrutiny because (1) the trooper did not have a reason able and articulable suspicion of a crime being or having been committed and (2) the scope and duration of tire seizure of the defendant exceeded that of the original valid stop. The judge found that the trooper s testimony as to why he questioned the defendant after issuing the ticket was not credible. The judge held that the second detention was unlawful; that the defendant’s subsequent consent to search was not voluntary; and that the defendant’s oral statements, during the car stop and in subsequent interviews, were inadmissible because the evidence was tainted by the unlawful detention and illegal search of the vehicle. 250 Kan. at 315-317.
On appeal, the Court of Appeals reversed the district court, holding there was insufficient evidence to support the district judge’s finding that the defendant’s consent to the search of the vehicle was not voluntary. This court accepted the defendant’s petition for review and reversed the Court of Appeals. In finding that the evidence should be suppressed, this court noted that there was substantial evidence supporting the trial court’s conclusion that there was an illegal seizure of the defendant, that the defendant’s oral and written consents to a search of the vehicle were not voluntary, and that the statements the defendant made were inadmissible. 250 Kan. at 318-19.
Damm and Garcia are readily distinguishable from the case at hand. Trooper Smith did not arrest McClain because of the traffic offense or stop the vehicle under K.S.A. 1992 Supp. 22-2402(1). The officer stopped the vehicle and arrested the occupants because they matched the general description of two armed robbers in a black pickup who had just robbed a Wendy’s restaurant approximately 10 minutes earlier. The pickup was observed traveling in a direction away from Wendy’s. The occupants of the pickup were behaving suspiciously; the passenger intermittently disappeared from the trooper’s view, and the driver continually checked the side-view mirrors.
A law enforcement officer may arrest a person if the officer has probable cause to believe that the person is committing or has committed a felony. K.S.A. 22-2401(c)(1). An arrest is the taking of a person into custody in order that the person may be forthcoming to answer for the commission of a crime. K.S.A. 22-2202(4). An arrest is made by an actual restraint of the person arrested or by his or her submission to custody. K.S.A. 22-2405(1). Trooper Smith had probable cause to stop the vehicle and arrest the occupants because he had probable cause to believe that the occupants had committed a robbery.
After arresting the occupants of the vehicle, did the officer have authority to search the vehicle for fruits of the crime of aggravated robbery? In New York v. Belton, 453 U.S. 454, 460, 69 L. Ed. 2d 768, 101 S. Ct. 2860, reh. denied 453 U.S. 950 (1981), the United States Supreme Court laid down the following “bright-line” rule: “[W]hen a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.”
Belton involved the stop of a speeding car. The officer asked the driver for his license and the automobile registration. He discovered that none of the occupants owned the vehicle or were related to the owner. Meanwhile, he smelled the odor of burnt marijuana and saw an envelope marked “Supergold” on the floor of the car; he associated the envelope with marijuana. He directed the four occupants to get out of the car and arrested them for possession of marijuana. He then patted them down, picked up the envelope and found marijuana inside, and proceeded to search the passenger compartment of the vehicle. He found cocaine in the pocket of a jacket which was lying on the back seat. The United States Supreme Court found the search constitutionally valid, laid down the aforementioned bright-line rule, and went on to say that “the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.” 453 U.S. at 460.
Prior to the United States Supreme Court decision in Belton, this court established the following six criteria for determining if a search of a vehicle is incident to a valid arrest: “(1) Proximity of the vehicle to the place of arrest; (2) the probability that the vehicle contains seizable items related to the crime; (3) the amount of time which has elapsed between the arrest and the search; (4) the recent departure of the arrestee from the vehicle; (5) the fact that the vehicle had been employed in some way in connection with the crime; and (6) the character of the place of arrest, i.e., public street, business premises or private home. Other factors may bear upon the question and no single factor, standing alone, is decisive in a given case for each may have a significant effect on the court’s determination of whether the search was a reasonable one.” State v. Tygart, 215 Kan. 409, 412, 524 P.2d 753 (1974); see State v. Van Wey, 18 Kan. App. 2d 260, 850 P.2d 283 (1993). Since its filing in 1981, Kansas courts have consistently applied Belton to allow an officer to search the passenger compartment of an automobile when its occupant is arrested. See State v. White, 230 Kan. 679, 680, 640 P.2d 1231 (1982); State v. Press, 9 Kan. App. 2d 589, 593-95, 685 P.2d 887, rev. denied 236 Kan. 877 (1984).
Based upon the factors set out in Tygart, the trial court properly concluded that the search here was incident to a valid arrest and properly admitted the evidence.
Preliminary Examination after Arrest
McClain asserts that the State violated K.S.A. 22-2902(2) by failing to hold a preliminary examination within 10 days after his arrest. The complaint was filed April 16,1993. On April 19, McClain was present for a first appearance, bond was set, and counsel appointed. On April 22, the preliminary examination was set for June 10. Prior to the hearing, the State requested and was granted a continuance by the court. On June 11, the preliminary examination was set for July 23. On July 22, defense counsel filed a motion to withdraw. At a hearing on July 23, the court granted defense counsel’s motion to withdraw, appointed the public defender to represent McClain, and continued the case at McClain’s request. The preliminary examination was held and McClain waived formal arraignment on August 23. McClain filed a motion challenging the timeliness of his preliminary examination on October 13.
The trial court, in addressing this issue as part of McClain’s pretrial motion to dismiss, stated:
“Regarding the timeliness of the preliminary hearing, this ease was dismissed once by the State and neither the Court nor defense counsel didn’t do anything about that. It was refiled. The matter apparently was originally set for the 11th of June and moved to the 23rd of July. And apparently that was on request of the State. Again, the docket sheet does not help me very much in that Judge Conklin made a note on the 11th of June to obtain testimony of material witness, request of the State. It doesn’t necessarily say by agreement or not by agreement. I don’t know. The fact is, then, that there was a month delay, approximately, between the setting in July until it was able to be reset in August due to Mr. McClain’s request that counsel be changed, which the court obliged him.
“So, the 10 days is directoiy. Certainly the press of business in this district, it seems to me that the case is — preliminary hearing was set in due course after the refiling of this case, it was set within 60 days of the first appearance in this case, and then reset it within 30 days, which is about as good as we can do. So, I’m going to deny it also for the delay.”
K.S.A. 22-2902(2) requires that a preliminary hearing be held within 10 days of arrest unless a continuance is granted for good cause. Unlike K.S.A. 22-3402, which requires the discharge of a person not promptly brought to trial, K.S.A. 22-2902(2) does not require the dismissal of the charge and the discharge of the defendant if a preliminary hearing is not provided within 10 days. State v. Fink, 217 Kan. 671, Syl. ¶ 3, 538 P.2d 1390 (1975). This time limitation is directory. Inconsequential delay beyond the 10 days will not require dismissal of the charges. In addition, the sufficiency of the preliminary hearing includes its timeliness and this may only be challenged by a motion to dismiss under K.S.A. 1992 Supp. 22-3208. State v. Smith, 215 Kan. 34, 37, 38, 523 P.2d 691 (1974). A motion under K.S.A. 1992 Supp. 22-3208 to dismiss or to grant appropriate relief must be filed no later than 20 days after arraignment. Failure to raise a question as to the sufficiency or timeliness of the prehminary hearing by such a motion constitutes a waiver and precludes review on appeal. K.S.A. 1992 Supp. 22-3208(3), (4); State v. Weigel, 228 Kan. 194, 201, 612 P.2d 636 (1980); State v. Smith, 215 Kan. at 37. McClain waived this issue by failing to file a motion to dismiss as required by 22-3208.
Effective Assistance of Counsel
McClain asserts he was deprived of the effective assistance of counsel because his first attorney failed to (1) protect McClain’s rights to a speedy trial; (2) protect valuable defense evidence, i.e., a 911 dispatch tape recording; (3) obtain a more complete descrip tion of the robbers, either by statement or testimony of witnesses; and (4) object to the extended period of time elapsed prior to the preliminary examination.
McClain has the burden to satisfy the requirements of the ineffective assistance of counsel test. See Chamberlain v. State, 236 Kan. 650, 655, 694 P.2d 468 (1985). To prevail on a claim of ineffective assistance of counsel, McClain must show that his counsel’s performance fell below an objective standard of reasonableness and that there is a reasonable probability the result would have been different had McClain received effective assistance. See Chamberlain v. State, 236 Kan. at 656-57. McClain must “overcome a presumption counsel’s assistance was reasonable.” 236 Kan. at 654. Additionally, in evaluating an ineffective assistance of counsel claim, “[t]he appellate court places much deference upon the findings of the trial judge who saw all the proceedings first-hand as they happened. [Citation omitted.]” State v. Humphrey, 252 Kan. 6, 25, 845 P.2d 592 (1992). The trial court examined the facts and found McClain was not denied the effective assistance of counsel.
McClain fails to show a factual basis for finding that his counsel’s performance either fell below.an objective standard of reasonableness or that there is a reasonable probability the result would have been different had McClain received more effective assistance. McClain was not denied the effective assistance of counsel.
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The opinion of the court was delivered by
Abbott, J.:
The issue before us is whether court-ordered spousal maintenance automatically ceases upon the recipient spouse’s remarriage.
The Quints were divorced in June 1991. Mr. Quint was ordered to pay spousal maintenance in the amount of $125 per month for a period of 30 months, “so long as the petitioner [did] not remarry or cohabitate with a member of the opposite sex.” On December 31, 1991, the petitioner remarried and became Mrs. Pfeifer.
Quint filed a completed, but uncertified, copy of Pfeifer’s marriage license with the trial court that granted the divorce. No court action was requested or taken as a result of the remarriage or the filing of the executed marriage license. Quint did not file a motion to modify or terminate spousal maintenance. Quint did not pay any maintenance to Pfeifer after her remarriage, contending her remarriage had automatically terminated his maintenance obligation. At this time, Pfeifer did not file a motion to compel Quint to pay spousal maintenance.
On June 21, 1994, some 2% years after her remarriage, Pfeifer obtained a garnishment to recover unpaid spousal maintenance. Quint filed a motion to set aside the garnishment, contending that his spousal maintenance obligation had automatically terminated upon his ex-wife’s remarriage. Pfeifer asserted that the maintenance obligation had not terminated because Quint did not file a motion to modify or terminate spousal maintenance upon her remarriage.
The district court found Quint’s spousal maintenance obligation automatically terminated upon Pfeifer’s remarriage on December 31,1991. Thus, the district court held that all spousal maintenance payments due after Pfeifer’s December 1991 remarriage were void.
Pfeifer appealed and, relying on Herzmark v. Herzmark, 199 Kan. 48, 427 P.2d 465 (1967), (a 4 to 3 decision) the Court of Appeals reversed in an unpublished opinion filed April 21, 1995, and remanded the case to the district court. In Herzmark, the divorce decree stated the maintenance would continue “until the further order of the court.” 199 Kan. at 49. Upon the payee’s remarriage, Herzmark stated that this occurrence established aprima facie case for termination of maintenance. However, under Herzmark, the maintenance obligation did not terminate automatically upon the payee’s remarriage. If it had, the court reasoned, then the court would not have an opportunity to inquire into the validity of the remarriage. The Court of Appeals asserted that neither the district court nor the payor could escape the Herzmark rule simply by including a statement in the journal entry which states that maintenance terminates upon the payee’s remarriage. According to the Court of Appeals, Quint should have filed a motion to terminate or modify maintenance upon Pfeifer’s remarriage. Since he did not, the Court of Appeals found that all of Quint’s maintenance payments were due and owing.
K.S.A. 60-1610(b)(2) allows a district court to include conditions for the termination of maintenance in a divorce decree. The decree at issue specifically states that Pfeifer’s remarriage is a condition for termination of maintenance. The question we must answer is whether maintenance automatically terminates upon the occurrence of this condition. To answer this question, we must interpret K.S.A. 60-1610(b)(2) and the divorce decree. Statutory interpretation is a question of law. As such, this court exercises an unlimited, de novo standard of review. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994).
Pfeifer contends that the automatic termination of a payor’s maintenance obligation upon the payee’s remarriage is improper for two reasons. First, she contends that the remarriage may be invalid. Relying on Johnston v. Johnston, 3 Kan. App. 2d 208, 592 P.2d 132 (1979), Pfeifer points out that a marriage license alone is not enough to prove that a payee is validly remarried. The payor’s maintenance obligation is not necessarily terminated upon the payee’s apparent remarriage. Thus, the payor should be required to bring a motion and prove the payee is validly remarried. In response to this motion, the payee should have an opportunity to offer a defense, such as the invalidity of the marriage or the existence of special circumstances, before the maintenance is terminated. Pfeifer contends this opportunity for a defense would not exist if the payor’s maintenance obligation automatically terminated upon the payee’s remarriage.
In Johnston v. Johnston, 3 Kan. App. 2d at 209, the divorce decree ordered the payor to pay maintenance to the payee “continuing until such time as [the payee] remarries. In case [the payee] remarries prior to the time these alimony payments commence, she will not be entitled to receive any of the alimony award.” Subsequently, the payee remarried in Colorado. The payor did not make any maintenance payments because the payee had remarried before the first maintenance payment became due. 3 Kan. App. 2d at 210. Later, the Colorado court declared the payee’s remarriage invalid due to the payee’s mental incapacity to enter into a marriage. 3 Kan. App. 2d at 209. Consequently, the payee commenced a contempt proceeding against the payor to enforce payment of the maintenance obligation. The payee contended that her remarriage did not terminate the payor’s maintenance obligation under the divorce decree because in Kansas a marriage by a mentally incompetent person is void. As a void marriage, it never existed arid therefore never terminated the payor’s maintenance obligation. On the other hand, the payor contended that Colorado, die state which found the payee’s remarriage to be invalid due to her mental incompetence, considered a marriage by a mentally incompetent person only to be voidable, not void. 3 Kan. App. 2d at 210. The Court of Appeals held that the Colorado marriage was void and therefore never existed. Thus, the payee’s remarriage never occurred, and the payor’s maintenance obligation was never terminated. 3 Kan. App. 2d at 211. Pfeifer points to Johnston in order to demonstrate the importance of allowing a payee the opportunity to present a defense before the maintenance is automatically terminated upon the payee’s remarriage.
Quint does not attempt to distinguish Johnston. Rather, he relies on Johnston for two of his own arguments. First, Quint points to Johnstons distinction between void and voidable remarriages. The Court of Appeals held that a void marriage did not terminate the payor’s maintenance obligation, yet if “the marriage was merely voidable, . . . the [maintenance] payments could be terminated.” 3 Kan. App. 2d at 211. Relying on this language, Quint contends that the payee’s remarriage, even if voidable, automatically terminates the payor’s maintenance obligation, unless the payee can prove her remarriage is void.
Next, Quint asserts the payee’s use of contempt proceedings in Johnston illustrates that a payee will still have an opportunity to present a defense if maintenance is automatically terminated upon the payee’s remarriage. Once the payee remarries and the maintenance automatically terminates, the payee can bring a motion to reinstate maintenance and present his or her defense in this manner. Thus, according to Quint, the automatic termination of maintenance upon the payee’s remarriage does not deprive the payee of the opportunity to present a defense. It simply forces the payee to initiate the court action should there be a legitimate question as to the validity of the payee’s remarriage.
Furthermore, Quint points to K.S.A. 60-1610(b)(2), which states:
“The decree may award to either party an allowance for future support denominated as maintenance, in an amount the court finds to be fair, just and equitable under all of the circumstances. The decree may make the future payments modifiable or terminable under circumstances prescribed in the decree. The court may make a modification of maintenance retroactive to a date at least one month after the date that the motion to modify was filed with the court. In any event, the court may not award maintenance for a period of time in excess of 121 months. If the original court decree reserves the power of the court to hear subsequent motions for reinstatement of maintenance and such a motion is filed prior to the expiration of the stated period of time for maintenance payments, the court shall have jurisdiction to hear a motion by the recipient of the maintenance to reinstate the maintenance payments. Upon motion and hearing, the court may reinstate the payments in whole or in part for a period of time, conditioned upon any modifying or terminating circumstances prescribed by the court, but the reinstatement shall be limited to a period of time not exceeding 121 months. The recipient may file subsequent motions for reinstatement of maintenance prior to the expiration of subsequent periods of time for maintenance payments to be made, but no single period of reinstatement ordered by the court may exceed 121 months. Maintenance may be in a lump sum, in periodic payments, on a percentage of earnings or on any other basis. At any time, on a hearing with reasonable notice to the party affected, the court may modify the amounts or other conditions for the payment of any portion of the maintenance originally awarded that has not already become due, but no modification shall be made without the consent of the party liable for the maintenance, if it has the effect of increasing or accelerating the liability for the unpaid maintenance beyond what was prescribed in the original decree. Every order requiring payment of maintenance under this section shall require that the maintenance be paid through the clerk of the district court or the court trustee except for good cause shown.”
Relying on this statute, Quint contends that the automatic termination of maintenance upon the payee’s remarriage does not deprive the payee of an opportunity to present a defense. After all, if a payee desires to reinstate maintenance after his or her remarriage due to special circumstances or the invalidity of the remarriage, the payee has the opportunity to file with the court a motion to reinstate maintenance. K.S.A. 60-1610(b)(2). Quint points out that in this case there is no contention that the remarriage is invalid. He also points out that he never gave consent to increase his maintenance obligation or continue its payment beyond the occurrence of the payee’s remarriage. Thus, under K.S.A. 60-1610(b)(2), the maintenance could not have continued beyond the payee’s remarriage and should have automatically terminated upon this remarriage.
Next, Pfeifer contends a payor’s maintenance obligation should not terminate automatically upon the payee’s remarriage because this concept is inconsistent with Kansas case law. According to Pfeifer, Wright v. Wright, 209 Kan. 628, 498 P.2d 80 (1972), and Herzmark v. Herzmark, 199 Kan. 48, found that a payee’s remarriage does not necessarily terminate maintenance if special circumstances exist which justify continuation of the maintenance. Specifically, Herzmark, 199 Kan. at 54, found that the automatic termination of maintenance upon the payee’s remarriage would create problems if the remarriage turned out to be invalid. Thus, Pfeifer contends these cases indicate a motion to terminate maintenance is required in order to terminate maintenance upon the payee’s remarriage.
In Herzmark, 199 Kan. at 51, the divorce decree ordered the payor to pay the payee maintenance “until the further order of the court.” The payee remarried. Subsequently, the payor filed a motion to modify the maintenance. The district court ordered a reduction in maintenance due to the remarriage, but it did not extinguish the maintenance entirely. The payor appealed this decision. The court pointed to K.S.A. 1965 Supp. 60-1610(c), which allowed modification of maintenance on order of the court. 199 Kan. at 51, 52-53. This court did not find a specific statutory provision which required the termination of maintenance upon the payee’s remarriage, However, the court found it was against public policy to allow a payee to hold a claim against his or her former spouse for maintenance and hold a claim against his or her current spouse for the marital duty of support. Regardless of this policy problem, the court held that it was inappropriate to automatically terminate maintenance upon the payee’s remarriage. 199 Kan. at 54. As the court stated:
“We do not feel that our statute indicates an intention by the legislature to have alimony payments automatically terminate on remarriage of the recipient. . . . Automatic termination would raise problems concerning subsequent inquiry into the validity of a remarriage which might well be determined on motion to terminate the alimony payments.
“After considering the statute and the decisions of this court we believe the remarriage of a divorced person, who is the recipient of alimony payments, does not of itself terminate the right to alimony. However, proof of a valid remarriage does make a prima facie case which requires the‘court to end it, in the absence of proof of some extraordinary circumstances justifying its continuance.” 199 Kan. at 54.
In Wright v. Wright, 209 Kan. at 629, the divorce decree awarded a court-ordered lump sum maintenance payment to the payee that was not to terminate “because of the death or remarriage of the [payee].” Subsequently, the payee remarried. The payor filed a motion to terminate maintenance due to the payee’s remarriage. Relying on the terms of the divorce decree and the district court’s authority to determine maintenance termination conditions under K.S.A. 60-1610(c), the district court denied the payor’s motion. Upon the payor’s appeal, this court reversed the district court. This court pointed to K.S.A. 1971 Supp. 60-1610(c), which allowed the district court to modify maintenance. Moreover, citing the Herzmark rule, this court asserted that the payee’s remarriage does not automatically terminate the payor’s maintenance obligation. However, “proof of remarriage on a motion to modify makes out a prima facie case requiring termination of future alimony payments.” (Emphasis added.) 209 Kan. at 630. Thus, the court stated:
“The issue presented in the ease at bar is essentially this: Can a district court avoid the rule of Herzmark ... by providing in the decree that alimony is not subject to modification or termination on death or remarriage of the wife? We hold that the answer to this question is in the negative.” 209 Kan. at 631.
Wright held that the trial court should have terminated the payor’s remaining maintenance obligation upon the payor’s motion due to the payee’s remarriage and the nonexistence of special circumstances justifying the continuation of maintenance. 209 Kan. at 631. Following Wright, the Court of Appeals in this case held that neither the district court nor the payor could escape the Herzmark rule simply by including a statement in the journal entry which states that maintenance terminates upon the payee’s remarriage.
Pfeifer concedes that Wright and Herzmark are not exactly on point. The divorce decrees in these cases did not specifically state the maintenance was to terminate upon remarriage as the Quint journal entry did. However, Pfeifer contends that the Wright and Herzmark holdings were based on the rationale that the payee may have a defense to the remarriage which should be heard before the maintenance is terminated. She contends this same rationale exists in this case even though the decree specifically states remarriage is a termination condition.
Quint attempts to distinguish Wright and Herzmark. He points out that the payee’s remarriage was not a termination factor specifically defined in the Wright or Herzmark divorce decrees. Rather, in the decrees, the maintenance either continued until further order from the court or stated that maintenance was not to terminate upon remarriage. Wright, 209 Kan. at 629; Herzmark, 199 Kan. at 51. Thus, it was necessary for the payors to file a motion to terminate maintenance in order for the court to determine whether remarriage was an appropriate event to terminate maintenance in these cases. We agree with Quint that these cases are distinguishable from the one at hand. The Quint journal entry specifically states that remarriage is an appropriate event to terminate maintenance. There is no need for a court to detennine if remarriage .is an appropriate event for the termination of maintenance, as there was in the prior cases, because this determination has already been made by the district court and stated in the journal entry. Thus, under the journal entry, the maintenance terminates automatically upon the occurrence of a terminating event, such as remarriage. The parties are well aware of the terminating event, and it seems inherently unfair to require the payor to constantly monitor the payee’s marital status and for the payee to profit by not revealing the occurrence of a terminating event.
Quint also attempts to distinguish two other cases which deal with similar issues—Beck v. Beck, 208 Kan. 148, 490 P.2d 628 (1971), and In re Marriage of Cray, 18 Kan. App. 2d 15, 846 P.2d 944 (1993), rev'd in part on other grounds 254 Kan. 376, 867 P.2d 291 (1994). In Beck, the journal entry of divorce awarded a lump sum maintenance to the payee “ ‘until fully paid or until further order of the court.’ ” 208 Kan. at 148. The payee remarried, and the payor filed a motion to terminate maintenance due to the remarriage. Taking judicial notice of the remarriage, the trial court reduced the maintenance but did not terminate it entirely. The payor appealed. The court stated:
“[T]his case is controlled by Herzmark v. Herzmark, 199 Kan. 48, 427 P.2d 465. In that case three members of this court were of the view that the remarriage of a recipient of alimony should operate ipso facto to terminate the obligation to pay future alimony. The majority were unable to go so far, but did hold that proof of remarriage makes a prima facie case requiring termination of future alimony unless the recipient proves special circumstances justifying its continuance. No such evidence was introduced here, and Herzmark would appear to dictate a reversal.” 208 Kan. at 148-49.
The court found the payee was remarried and no special circumstances justified the continuation of maintenance. Thus, the maintenance was terminated due to the wife’s remarriage. 208 Kan. at 150.
In Cray, 18 Kan. App. 2d at 30, the divorce decree omitted conditions for the termination of maintenance altogether. The payor argued that the trial court was in error by omitting a provision in the divorce decree which specifically stated the payor’s maintenance obligation would terminate on the payee’s remarriage. The court stated the general rule that “[pjroof of remarriage by the recipient of maintenance and a motion to terminate presents a prima facie case for termination of maintenance absent proof by the recipient of strong compelling circumstances why the maintenance should not cease. [Citations omitted.]” (Emphasis added.) 18 Kan. App. 2d at 30. This rule applies whether remarriage is included in the journal entry as a termination condition or not. Thus, the court found the trial court was not in error when it did not include a specific provision in the decree allowing for the termination of maintenance upon remarriage. 18 Kan. App. 2d at 32.
Quint attempts to distinguish Beck and Cray in the same manner as he distinguished Wright and Herzmark. In these two cases, remarriage did not automatically terminate the payor’s maintenance obligation because a district court had not made a prior determination that remarriage was an appropriate event upon which to terminate maintenance. Neither the Beck nor Cray divorce decrees listed remarriage as a termination condition. The decrees either awarded maintenance until further order of the court or omitted termination conditions altogether. Beck, 208 Kan. at 148; Cray, 18 Kan. App. 2d at 30.
In In re Estate of Sweeney, 210 Kan. 216, 500 P.2d 56 (1972), this court found that maintenance provided for in a divorce decree automatically terminates upon the death of the payor. This is true even if the decree does not provide for death as a termination condition. In fact, maintenance may only continue beyond the pay- or’s death if the language in the decree makes it unmistakably clear that the maintenance is to continue beyond the payor’s death. 210 Kan. 216, Syl. ¶ 1. Thus, Quint contends that remarriage should automatically terminate the payor’s maintenance obligation just as death does. Pfeifer attempts to distinguish Sweeney. She asserts that there is no defense to death, such as invalidity; therefore, the payee does not need an opportunity to present a defense before maintenance is terminated. Yet a payee may have a defense for a remarriage, such as invalidity or incompetence. Thus, Pfeifer contends that the payee’s maintenance should not be terminated automatically before the payee has an opportunity to present a defense. According to Pfeifer, maintenance should only terminate on the payor’s motion after the payee has had the opportunity to present her defense.
Both Pfeifer and the district court point out that there are no cases directly on point regarding this issue. One case which is not cited by either party sheds some additional light on the problem. In Dodd v. Dodd, 210 Kan. 50, 51, 499 P.2d 518 (1972), the parties entered into a settlement agreement which required the payor to pay maintenance to the payee “until and unless such time as the death or remarriage of [the payee] nullifies this agreement.” The trial court approved the separation agreement and merged it into the divorce decree by reference. Later, the payee remarried in another state. Soon thereafter, this remarriage was annulled. The payee did not inform the payor of her remarriage and subsequent annulment, and the payor continued to make regular maintenance payments. Later, when the payor became aware of the remarriage, he filed a motion to terminate maintenance. The payor requested that his maintenance obligation be terminated retroactively back to the date of the payee’s remarriage and that he be granted a judgment against the payee for the amount of maintenance payments he had paid since her remarriage.
The court found the annulled remarriage was voidable, but not void. The court pointed out that the separation agreement said nothing regarding the status of the remarriage. The agreement simply stated that maintenance was to terminate upon the payee’s remarriage. The journal entry in this case is similar in that it states the maintenance will terminate upon remarriage. It does not state that the maintenance will terminate upon Pfeifer’s remarriage and Quint’s filing of a motion to terminate. Relying on an absence of any conditional language beyond remarriage, the Dodd court stated: “Certainly [the payee] must have understood that by remarrying she was abandoning her claim for support under the agreement, for better or for worse, in favor of whatever support would be furnished by her new spouse. [The payee] remarried and the alimony ceased.” (Emphasis added.) 210 Kan. at 55. Thus, this court held the payor’s maintenance obligation terminated upon the payee’s remarriage even though the marriage was voidable.
The court then pointed out that the payor had paid $10,200 in maintenance payments since the payee’s remarriage. The court granted the payor a judgment against the payee in order to collect in restitution all of the maintenance payments made by the payor since the payee’s remarriage. This judgment indicates that the court found the payor’s maintenance obligation ended automatically upon the payee’s remarriage. Hence, the payor was allowed to recover the payments made since the remarriage. The obligation did not terminate once the payor became aware of the remarriage and filed the motion to terminate. The Dodd case is the only case discussed herein which specifically lists remarriage in the divorce agreement as a condition for maintenance termination. While the Dodd remarriage condition was defined in a separation agreement, and the Quint remarriage condition was ordered in a decree, this distinction is irrelevant, especially since the Dodd separation agreement was merged into the divorce decree. We think that the pay- or’s maintenance obligation in this case should be treated as the payor’s maintenance obligation was treated in Dodd.
Maintenance payments automatically cease upon the payee’s remarriage when the judgment awarding maintenance so provides, in the absence of statutory provisions to the contrary and subject to the payee showing the alleged remarriage is void. Thus, we find Quint’s maintenance obligation automatically terminated upon Pfeifer’s remarriage.
Furthermore, adopting a rule that maintenance payments automatically cease upon the payee’s remarriage when the judgment so provides is consistent with the reasoning in Brady v. Brady, 225 Kan. 485, 592 P.2d 865 (1979). Brady dealt with an award of child support for several children which did not specify the amount awarded per child. The issue in Brady was whether the child support payment should be reduced when one or more of the children were no longer eligible for child support payments.'
In adopting a proportionate share rule of divisibility, the court stated:
“When a child attains the age of majority, or when a child goes to live with the other parent, or when a child dies, the obligation to pay support for that child should automatically cease and terminate unless the agreement provides otherwise.
“Under the proportionate share rule of divisibility, needless litigation will be avoided because neither party will be required to seek an immediate court order. If, however, the proportionate share is unfair under the circumstances, either party can apply to the court for a change under K.S.A. 1978 Supp. 60-1610(a). In any event, the parent who pays support pursuant to a lump sum award should be allowed to reduce support proportionately as the children become of age without returning to court each time.
“Our prior decisions and statutory law also support this position. K.S.A. 1978 Supp. 60-1610(a) provides that any order requiring either parent or both parents to pay for the support of any child until the age of majority shall terminate when such child attains the age of eighteen (18) years, unless by prior written agreement approved by the court such parent or parents specifically agreed to pay such support beyond the time such child attains the age of eighteen (18). Here the divorce decree ordered child support payments to continue ‘until further order of the court.’ Actually, a divorce court has no power to continue a provision for support of a child after the child attains the age of majority. An order for support of a child ‘until further order of the court’ does not mean that payments will accrue after the child becomes of age until the court makes a further order. The order terminates when the child attains majority without further order.” 225 Kan. at 491-92.
The judgment of the Court of Appeals is reversed, and the judgment of the district court is affirmed. | [
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|
The opinion of the court was delivered by
Johnston, J.:
None of the grounds upon which the motion to quash was based are sufficient. The so-called compromise agreement was a conditional one. Rierson agreed to remit $37.50 of the judgment which he had recovered, provided the railway company paid the balance of the judgment within thirty days, and constructed a cattle-guard within the same period. The failure of the company to build the cattle-guard and thus complete the inclosure of defendant in error, caused the damage upon which the judgment was founded. From the nature of things, the time of payment and of the construction of the cattle-guard, were the important elements of the agreement, but the company failed in respect to both. The judgment and costs less the $37.50 was not paid in thirty days, nor until an execution had been issued, and the payment was then made to the officer who held the execution. The cattle-guard was not constructed at the time agreed upon, nor had it been built when the alias execution was issued and the motion to quash was filed. The company having failed to observe these conditions, it was proper for Rierson to enforce the judgment as rendered.
The action of counsel for Rierson in causing the petition in error which said railway company had filed in the supreme court to be dismissed is of no consequence, and is not a waiver of the non-compliance of the railway company with the conditions imposed. No proceeding in error was actually instituted. To commence the proceeding a summons should have been issued, or a waiver of summons filed. No summons was issued or waiver filed; but instead of taking these steps it appears that the counsel for the railway company, when the petition in error was filed, directed the clerk of the court not to issue a summons thereon.
The last point made is, that-the alias execution is invalid because it commanded the sheriff to make the whole amount of judgment and costs, notwithstanding, the fact that $225.05 of the judgment had been paid. On its face there was' such a command, but indorsed on the execution there was a credit of the amount actually paid. Even if the execution had issued for too large an amount, the proper practice would have been a motion to set aside as to the excess, rather than a motion to quash the execution. [Bogle v. Bloom, 36 Kas. 512.) The order of the district court was correct, and will be affirmed.
All the Justices concurring. | [
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|
Opinion by
Holt, C.:
It is urged that the county clerk is not a member of the board of canvassers, and for that reason the writ prayed for should not issue against him; it is also contended that because the election returns were not placed before the county commissioners by the county clerk, they have never had an opportunity to canvass them, and therefore have never refused or neglected to perform their duty required of them by law. Neither of these claims is tenable. The county clerk has his duty plainly prescribed by law, and he cannot evade it by stating that he is not one of the board of canvassers, nor can the county commissioners excuse themselves from the discharge of the functions of their office, by showing that the county clerk did not first take from his files and open and bring the returns before them. Our statute provides that the county clerk and the commissioners of the county shall meet at the office of the county clerk, and shall proceed to open the several returns which shall have been made to that office. The county clerk and the county commissioners knew, as a matter of fact, that the poll-books of both Reeder and Lincoln townships were in the county clerk’s office; there was no question of their accuracy; no doubt of their authenticity. They were put under cover, sealed and properly brought there, except they were inclosed in an envelope or package with the ballots; this was the irregularity — “only this, and nothing more.” The defendants say, however, that they had no competent evidence to show that the poll-books were inclosed in such packages, as they were indorsed simply as containing all the ballots cast at the election in the respective townships whence they came; and contend that they were not authorized to hear oral evidence, receive affidavits, or otherwise assume judicial powers to determine the contents of said packages Of course the members of the board of canvassers are ministerial officers, with limited powers, but then they may satisfy themselves whether the returns in the office of the clerk are genuine or not, and can do so by evidence other than the indorsements upon the sealed packages before them. In this instance, a part of the judges of election of Lincoln and Reeder townships were before them, and they were certainly competent to testify that the packages indorsed as containing the ballots, contained the poll-books also; they could have opened the packages and found the poll-books at once. But the defendants say that they were forbidden by § 8, chap. 86, Compiled Laws of 1879, to open the envelopes containing the ballots. The portion of said section to which they refer is as follows:
“The ballots, after being counted, shall be sealed up in a package and be delivered to the county clerk, who shall deposit them in his office, where they shall be safely kept for twelve months, and the county clerk shall not allow the same to be inspected, unless in case of contested elections, or unless the same become necessary to be used in evidence, and then only on the order of the proper court.”
The good faith of the contention of the defendant, Florence, would be more apparent to this court if his objections had been made as suggestions to the officers bringing the envelopes to him at that time, instead of waiting until the day for canvassing the vote.
The defendants claim to be very particular in the observance of the strict letter of § 8, even at the expense of losing sight of the real object and purpose of the election law. They seemed to be solicitous and tenacious of the technical exactions of the statute, but easily and readily omitted the weightier matters of the law. It appears almost unnecessary to call attention to the oft-repeated and well-known truth, that it is of the utmost importance that all votes cast shall be honestly counted, and the result determined from all the returns. It is the object and aim of all the provisions concerning the returning and canvassing the poll-books, tally-sheets and ballots, to determine who has received the highest number of votes cast. Section 29 provides:
. . . “ Whenever it shall satisfactorily appear that any person has received the highest number of votes for any office, such person shall receive the certificate of election, notwithstanding the provisions of law may not have been fully complied with in noticing and conducting the election, so that the real will of the people may not be defeated by any informality of any officer.”
It seems to us like trifling with the provisions of this section to interpose the defendants’ construction of § 8, in order to declare one elected |who did not apparently receive the highest number of votes. We are pleased to know and gratified to declare that the law has a broader and fairer construction than that given it by the defendants. If it were possible to give it the narrow interpretation contended for, we should be constrained to say that the law should be “not of the letter, but of the spirit; for the letter killeth, but the spirit giveth life.”
But does section 8, fairly construed, prevent, in a case like the one we are now considering, the opening of the envelopes containing the ballots, sealed and sent to the county clerk by the judges of election ? It provides merely that they shall be safely kept, not with unbroken seals necessarily, but kept so that their identity may be proven easily. (Dorey v. Lynn, 31 Kas. 758.) It further provides that the county clerk shall not allow them to be inspected. We do not think there would have been an inspection of the ballots as contemplated by law —a careful and critical examination that would have detected anything wrong with them, if any wrong existed —by merely opening the envelopes, taking therefrom the poll-books, and again sealing the ballots in the same envelope openly, in the light of day, in the presence of all the members of the board and the judges of the townships in question, and other citizens who were standing by. We do not care to pursue this matter further. The county clerk and county commissioners refused to perform their plain duty.
We believe the plaintiff McCord was an elector of Kiowa county, at the date of the election, his residence dating from the autumn of 1884. We would recommend that a peremptory writ of mandamus be awarded, at the cost of defendants Florence and Fullington.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
There is but little controversy regarding the facts of this ease. Johnson entered the land as a homestead, on July 19, 1882, and he had complied with all the conditions of the act of congress respecting the acquirement of title, excepting that he had not resided on and cultivated it the full period of five- years. The improvements which he had made were of a substantial character. His residence thereon had been continuous from the time of entry, and by continuing to meet the requirements of the homestead law for about a year after the trial, and by making final proof, he would be vested with a full and complete ownership in the land and entitled to a patent therefor. The railroad company constructed its road without his consent, and without making or offering to make compensation to him for the damages done. It may also be fairly said that in the view we take, the damages allowed by the jury were not exorbitant. The principal point in controversy is in respect to the measure of damages to which Johnson, being a homesteader, was entitled. The railroad company contends that because he holds under a homestead entry, and has not as yet acquired the full legal title, lie is entitled to recover nothing beyond the mere injury done to the improvements which he had placed on the land. We cannot agree with this contention. The claim is based mainly on an act of congress of July 26, 1866, which declares that “'the right-of-way for the construction of highways over public lands not reserved for public uses is hereby granted.” (Rev. Stat. U. S., §2477.) It is argued that railroads are highways within the meaning of this provision, and that the plaintiff took his homestead subject to the right of the railroad to appropriate a right-of-way over the same without any compensation for any value of the soil or damages otherwise than to his improvements. The term “highway” used in the section quoted, does not, in either its ordinary or strict sense, include railroads. It is true that in a certain sense a railroad is. a public highway, to be constructed and operated according to law, and subject to public control. It can only be used, however, in a particular manner, and is not open to common use for foot passengers, horse passengers, animals and carriages, as an ordinary highway may be used. In the usual understanding, a highway is one which is common to all people without distinction, and which they may travel over on foot or horseback, or in carriages. (Thompson on Highways, 1; Angelí on Highways, 3.) A railroad and a common highway are essentially different in regard to construction, control and use, as well as ownership, and the distinctions are so well understood that a mention of them is unnecessary. It is a familiar rule of law that in interpreting statutes, words and phrases are to be taken in the ordinary sense and common acceptation, unless it appears from the context of the act that a different meaning was intended. We discover nothing in the provision in question, or in the subsequent legislation of congress, which indicates that an unusual meaning was attached to the word, or that it included railroads. Instead of that, we find that since the law in question was enacted, congress has deemed it necessary by both general and special acts, to grant a right-of-way to railroads over the public domain. Aside from several special acts, a general one was passed on March 3, 1875, granting to any railroad the right-of-way through any public lands of the United States. It provided at length the conditions to be observed, and the steps that were to be taken in order to secure the benefit of the act. No reference is there made to the act of 1866, but congress, as well as those who were instrumental in obtaining the legislation, seem to have proceeded upon the theory that the act of 1866 did not grant a right-of-way for railroads. (18 Stat. at Large, 482.) On March 3,1873, another act was passed by congress, which indicates to some extent the legislative understanding of the act of 1866. It was then provided that a settler on the public lands, either by virtue of the preemption or homestead law, shall have the right to transfer by warranty against his own acts, any portion of his preemption or homestead for the right-of-way of railroads across such preemption or homestead. (Rev. Stat. U. S., §2288.) Neither of these enactments purports to modify or repeal the act of 1866. It was wholly unnecessary for congress to grant a right-of-way to railroads, or to provide that a settler may convey his interest in a preemption or homestead for such purpose, if the act of 1866, already in force, embraced railroads within its intent. It is true that the case to which we are referred, F. & P. M. Rly. Co. v. Gordon, 41 Mich. 420, holds that railroads are highways within the meaning of the act of 1866. The court in that opinion concedes that when the term “highways” is used in legislation, the common highways of the country are generally to be understood. ■ The construction that railroads were intended was based on the apparent liberal policy pursued by congress in encouraging railroads to build through the new and unsettled portions of the country. The court, however, expressed doubt in regard to the conclusion which it reached, and it does not appear that its attention was called to the subsequent general legislation of congress expressly granting a right-of-way to railroads. An examination of the congressional legislation on the subject, and having in mind the rule of interpretation that the usual meaning is to be given to words in the statute, unless another is obviously intended, we have come to the conclusion that only the common highways of the country were intended to be included in the term used in the act of 1866. It is not claimed that the railroad company has complied with the requirements of the act of 1875 to secure a right-of-way across the land m question; and if it had, the question would still remain, whether the land which had been entered under the homestead law would be treated as public land, liable to be embraced within and to be conveyed by a general grant. Under the rulings of the land department of the government, “a valid homestead entry operates as an appropriation and reservation of the land embraced in the same, so long as it remains in force and uncanceled. The entry while in force segregates the tract from the mass of the public domain.” (White v. H. & D. Rld. Co., 2 Copp’s U. S. Public Land Laws, 1882, p. 878; Wilcox, v. Jackson, 13 Pet. 516; Witherspoon v. Duncan, 4 Wall. 218. Opinion of Attorney General McVeigh, 1 Copp’s U. S. Public Land Laws, 1882, p. 388.) But whether or not it is so segregated by settlement an<l entry, we agree with the learned judge who tried the case, that the homesteader has an interest in the land beyond the bare improvements placed thereon, and which cannot be appropriated by a railroad company without making just compensation. It is true that he" has not a legal title, and may never acquire it, but when he makes a bona fide settlement and a valid entry of the land, he acquires an immediate interest to the entire tract which gives him the right of possession, and upon making proof of settlement and cultivation for a period of five years, he becomes invested with full and complete ownership. As the court below remarked, “the entry-man acquires the exclusive right, by continued residence and cultivation of the land, to obtain the full legal title; and his equities increase from the time of his entry to the expiration of the five years.” In the act granting to railroads the right-of-way through the public lands of the United States, congress recognised the possessory claims and interest of settlers upon the public lands, and provided for their condemnation for the right-of-way of. railroads. (Sec. 3, of act March 3, 1875, 18 Stat. at Large, p. 482.) In § 2288, Rev. Stat. U. S., it is enacted that—
“Any person who has settled, or hereafter may settle, on public lands, either' by preemption or by virtue of homestead laws, or any amendments thereto, shall have the right to transfer by warranty against his own acts, any portion of his preemption or homestead ... for the right-of-way of railroads across such preemption or homestead; and the transfer for such public purposes shall in no way vitiate the right to complete and perfect the title to their preemptions or homesteads.”
This enactment indicates the view taken by congress with respect to the interest acquired by the settler. It contemplates not only that he owns the improvements, but that he has an equity in. the land itself, which he may transfer for a right-of-way ; and it provides how that transfer may be made. It further recognizes that until this equity is obtaine'd, by purchase or otherwise, the right of the railroad company to enter and appropriate any portion of the homestead for a right-of-way is incomplete. It is conceded that the defendant in error had made a valid homestead entry, which gave him a preferred right thereto against every individual or corporation, so long as he made compliance with the laws of the United States in regard to the perfecting of his title to the land. It gave him the exclusive right of possession, the right to all the grass and crops grown on the land, to a sufficient amount of the timber, if any was growing thereon, for firewood, and in the improvement of the land, and, by continuous habitancy and improvement for a year longer, the right to the full, legal aud equitable title to the land. Under the laws of the United States, and the rules of the land department, the entryman is entitled to commutation in several forms, and to certain preference rights, aud may also relinquish and sell his improvements and equities in the homestead to another. The relinquishment must, of course, be made to the United States; but under the rules and practice of the land department it may be made so as to fully protect the transferee, if he be a qualified person, to the same right which his vendor enjoyed. With all these rights, the equities of the homesteader are very important and valuable. They constitute a property right, which appears from the testimony to have a well-understood value in the district where the land in question lies, and is worth but little less than the full title to the land. The crops grown Upon the land, as well as the improvements placed thereon, belong exclusively to the settler; and if he has a valid entry, and has made the required improvements, he is safe in his possession, and in the ownership of the improvements, and can rest assured that, by continuous residence and compliance with the law, he can obtain the complete title. Indeed, there is an advantage in allowing the legal title to remain in the United States, which is frequently availed of by settlers who, upon making final proof, would be entitled to a patent. Until the equitable title and right to a patent is complete, the lands are not subject to state or local taxation, and the final proofs need not be made until seven years after the entry is made. It has been held by this court that the relinquishment of a homestead claim, and the transfer of the interest of a homesteader, are a sufficient consideration for a promissory note given in payment of such relinquishment and transfer. (Moore v. McIntosh, 6 Kas. 39.) Attorney General McVeigh, in an opinion given to the secretary of war, in 1881, held that a claim of a homesteader to public land was initiated by an entry of the land, which was effected by an application of the settler accompanied by the required affidavit and the payment of the commission. He said: ■
“It is true, a certificate of entry is not then given — the certificate being, under § 2291, Revised Stat. U. S., withheld until the expiration of the five years from the date of such entry, at the end of which period, or within two years thereafter, upon proof of settlement and cultivation during that period, and payment of the commissions remaining to be paid, it is issued; but upon entry the right in favor of the settler would seem to attach to the land, which is liable to be defeated only by failure on his part to comply with the requirements of the homestead law in regard to settlement and cultivation. This right amounts to an equitable interest in the land, subject to the future performance by the settler of certain condi tions (in the event of which he becomes invested with full and complete ownership); and until forfeited by failure to perform the conditions it must, I think, prevail not only against individuals, but against the government. That in contemplation of the homestead law, the settler acquires by his entry an immediate interest in the land, which for the time being at least, thereby becomes severed from the public domain, appears from the language of § 2297, Rev. Slat., wherein it is provided that in certain contingencies ‘the land so entered shall revert to the government.’” (1 Copp’s U. S. Public Land Laws, 1882, p. 388.)
The interest which the settler has may be appropriated for a right-of-way by adversary proceedings, as we have* already seen congress has provided for the condemuation of a right-of-way through a homestead, as well as for its purchase from the settler. Of
course the settler does not part with the same interest or value that he would if he had the legal title, and he should only receive compensation for the interest taken from him. The court below, however, in its charge and rulings on the admission of testimony, seems to have carefully restricted the jury to an allowance for the injury done to the rights and interest which the settler had in the land. The appropriation and use of a strip of land through the homestead affected the entire tract. The homesteader had taken and was using it as a single tract, and as his home and farm. The division of the farm into parts of irregular shape, the deep cuts and high fills that were made, and the inconvenience resulting from the construction of the road, constitute an injury ' 7 to the interest of the settler, which differs only in degree from that sustained by one who has the legal title. The property is taken at the instance and for the benefit of a railroad company, and the injury is occasioned by the company, ihe extent of the injury is tor *: J J the jury to determine, and for which the railroad company is liable. We think the case was fairly submitted to the jury, and that the verdict and judgment given are just.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action in the nature of ejectment, brought by McNaughton against Mrs. Bryan and children, to recover two hundred and twenty acres of land, situated in Miami county. The facts in the case as claimed by Mrs. Bryan and children are as follows: On the 31st day of August, 1865, Edward Coughlin purchased of Joseph Johnson, a member of the Shawnee tribe of Indians of Kansas, the lands in controversy, paid him the purchase-price thereof, and Joseph Johnson made a warranty deed therefor. Coughlin took possession of the lands, made improvements thereon, occupied the one hundred-and-sixty-acre tract as his homestead, and continued in the possession of the land up to the time of his death, in March, 1878. Subsequently his widow, now Margaret Bryan, and his children, continued for some years to occupy the land, and were in possession of the same at the beginning of this action. Sometime in the year 1881, Mrs. Bryan discovered that there was a defect in the title of herself and children to this land; that the deed of conveyance to Joseph Johnson, and also a subsequent deed from Thomas Johnson and Nancy Johnson, as sole heirs of Joseph Johnson, for said lands, had never been approved by the secretary of the interior, and that the Indian title to the land had never been extinguished. Soon after this discovery she went to Paola and called on the real-estate firm of Oakman & Clover for assistance in perfecting her title. This firm was principally engaged in fixing up Indian titles and trafficking in Indian titles. She gave her deeds to Clover, who promised to examine her title and ascertain what could be done. In the spring of 1882, Clover was several weeks in Washington city, and among other business was trying to have the Coughlin deeds approved by the secretary of the interior. While still in Washington, the secretary of the interior returned the deeds to Clover, at Paola, with the reasons why the deeds could not receive the approval of his office. This letter was received by Oakman in the absence of Clover, and opened by him. On the same day that Oakman received the letter and deeds from the department, Mrs. Bryan called at his office to find out when Clover would return, and ascertain the situation in regard to her deeds. Oakman read her the letter, and stated the reasons why the deeds could not be approved, and also informed her that it would be necessary to go down into the Indian territory and obtain a deed from the heirs of Joseph Johnson, and have the same approved by the secretary of the interior, in order to perfect her title. Oakman agreed to do this for her for the compensation named, and at the same time told her it would require some time to get it through, and told her to rest easy. Acting under this assurance, and l’elying on the promise of Oakman to perfect her title, she gave the matter no further attention.
On August 25, 1883, McNaughton obtained a conveyance of the land from Hiram Johnson, the alleged sole heir of Joseph Johnson and Mary Johnson his wife. Upon the face thereof the consideration was two thousand six hundred and forty dollars. This deed was approved January 5,1884, and on March 4,1885, McNaughton commenced this action against Mrs. Bryan and her children. The answer of Mrs. Bryan and children set forth the original purchase and occupation of the land by Edward Coughlin ; the contract with Oakman to perfect their title, for the sum of one hundred dollars and expenses ; that, in violation of this agreement to obtain title for Mrs. Bryan, he had procured title to be taken in the name of McNaughton, and that Oakman was interested in the land with McNaughton, and was a necessary party for a full and final determination of the controversy; that she tendered into court the sum of one hundred dollars, and offered to pay the reasonable expenses incurred in obtaining such deed, and asked that Oakman be made a party to the suit, which was accordingly done; that the title was taken in the name of McNaughton for the purpose of cheating and defrauding the defendants out of their land; that McNaughton had full knowledge of all the facts. The answer closed with a prayer for judgment in favor of Mrs. Bryan and her children, that they be declared the owners in fee simple of the premises in dispute, and rightfully in possession thereof; that McNaughton holds the title in trust for them, and that he be adjudged to execute and deliver to them a deed for the premises. ■
Upon the trial, after Mrs. Bryan and children rested their case, McNaughton moved to strike out and take from the jury all the testimony introduced on behalf of the defendants tending to prove the allegations of their answer. The court refused the motion, but intimated that he would settle the questions presented in his instructions, and stated that it was unnecesr sary for McNaughton to introduce any rebutting testimony; and thereupon the court instructed the jury, among other things, as follows:
“ In this case, the defendant charges that these lands were procured by the plaintiff and one Oakman, under circumstances known to both the plaintiff and Oakman, and that they are held in trust for the defendant. In order to create a trust in this action, you must find either, first, that the purchase-money for this land, or some portion of the purchase-money, was paid by the defendant to Oakman, or to the plaintiff in this action; or, second, that the contract between the defendant and Oakman, in which she claims a right to these lands, was in writing.”
Upon the instructions of the court, the jury returned a verdict for McNaughton, and assessed his damages at one dollar. Judgment was entered accordingly. Mrs. Bryan and her children complain of the instructions of the trial court and the judgment rendered upon the verdict, and bring the case here for review.
Within the authority of Bose v. Hayden, 35 Kas. 106, the instructions were erroneous. In this case Mrs. Bryan and children were in the possession of the premises at the time she made the contract with Oakman to perfect her title. She was also in the possession of the premises at the date of the conveyance from Hiram Johnson and wife to McNaughton; her husband had purchased the land of an Indian, in 1865, and paid him therefor; had obtained what he supposed at the time to be a valid deed, and had occupied and improved one hundred and sixty acres thereof as a homestead for many years; therefore, as to possession and improvements, this is stronger than the Rose case. In that case this court used the words “resulting trust” as parallel or synonymous with “constructive trust.” In strictness, “constructive trust” is the proper term to be employed. Notwithstanding the statute of frauds, and the fact that the employment of Oakman as agent was only in parol, and the further fact that Mrs. Bryan did not pay the purchase-money, a constructive trust is brought into existence by the operation of the law upon the facts pre sented. The controlling question is not whether Mrs. Bryan advanced the purchase-money, but whether in equity and good conscience her agent, who it is claimed purchased the premises with his own money in the name of his partner and for their mutual profit, in violation of his agreement with Mrs. Bryan, and in abuse of the confidence reposed in him by her, can be allowed to retain with his partner the fruits of his perfidy, Within the authorities, he cannot. McNaughton is in no better situation than Oakman, if the deed was taken by him for the benefit of Oakman, or for their joint interest, with the view of cheating and defrauding Mrs. Bryan and her children out of the land. Counsel for McNaughton claim that as Mrs. Bryan has not paid or tendered two thousand six hundred and forty dollars, alleged to have been paid for the conveyance of August 25, 1883, she cannot elect to treat McNaughton as the trustee, holding the title to the premises in trust for the benefit of herself and children. The answer alleged that Mrs. Bryan and her children tendered into court the sum of one hundred dollars due to Oakman upon her contract with him, and also offered to pay the reasonable expenses incurred in obtaining the deed from Hiram Johnson and wife. These expenses, of course, would include the amount actually paid to Hiram Johnson and wife for the conveyance made to McNaughton, and all other necessary expenses for procuring the same; and before McNaughton can be required to execute a deed for the premises to Mrs. Bryan and children, the amount paid for the conveyance of August 25, 1883, and all reasonable expenses must be returned to him and Oakman; but upon the facts claimed by Mrs. Bryan and her children, McNaughton • cannot maintain his action in ejectment. In such a case as this, where the agent furnishes the purchase-money, it will be considered as a loan, and the agent will hold the property purchased in trust for his principal, and as security for himself for the money advanced by him; but the agent cannot in violation of his duties hold the same adversely to his principal, merely because his principal has not advanced the purchase-money, when in fact at the time of the employment of the agent the amount of the purchase-money could not be known. At the time of the alleged contract between Mrs. Bryan and Oakman, Mrs. Bryan agreed to pay all the reasonable expenses. The amount of these expenses was not known, and could not have been known at the time. Oak-man made no demand for the advancement of any funds as purchase-money, or other expenses. Neither he nor McNaughton ever presented to Mrs. Bryan any statement of the purchase-money, or other expenses. Upon its face, the consideration of the deed purports to be two thousand six hundred and forty dollars, but parol evidence may be admitted to show the actual consideration.
We have commented upon the facts in this case as claimed on the part of Mrs. Bryan and children, assuming for the purposes of this case only, that the facts testified to are true. In another trial, the disputed questions of fact will be submitted to the court; and we do not wish to be understood from our comments, that the trial court or the jury are to find the facts as claimed. When the case goes to the jury again, they will be the sole judges of the weight of the evidence, the credibility of the witnesses, and of all disputed questions of fact.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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Opinion by
Holt, C.:
Eobert Ewing, a widower, died on the 8th day of January, 1883, leaving his children as his sole heirs, being all of the defendants in this action except M. F. Leasure. The plaintiff held his note for $365.60, secured by mortgage on some property in Linn county. On the 24th of June, 1884, said plaintiff, for the purpose of collecting said note, cooperated with the heirs of said Ewing, and caused M. F. Leasure to be appointed administrator of said estate. When Leasure was qualified and acting as administrator, the plaintiff filed his note in the probate court and secured an allowance and judgment for the full amount thereof against said estate. On the 2d of February, 1885, the administrator, by direction of the plaintiff, began proceedings in the probate court of Linn county, to sell the premises named in the mortgage for the purpose of paying off plaintiff’s debt, and other debts of Ewing’s estate, and on the 10th day of March, 1885, obtained in that court an order to sell said real estate; the land was sold in April; in July the administrator, out of the proceeds of the sale of the land, paid to plaintiff $492.21, being the amount of the note at that time. On the 4th day of March of the same year, the plaintiff began this action in the district court of Linn county.
The only question before us is concerning the payment of the costs of this action in the district court, which defendants refused to pay. The court held that the plaintiff could not recover his costs of the defendants. We believe that was cor rect. He had elected his forum, and won all he sought; his claim was paid in full, and the estate was compelled to pay the costs of the proceeding in the probate court. The plaintiff had the undoubted right to seek relief in either the probate or the district court — perhaps in both at the same time, if he had simply asked for the' allowance of his note in the probate court, and only for a judgment in the district court establishing the mortgage lien as a judgment lien, and an order to sell the real estate in question; but it is specially found by the court that he had obtained the allowance of his note as a debt against the estate, and had instituted proceedings in the probate court to sell the identical land to pay this and other debts of the estate, and had caused the same to be sold, and received from the proceeds of such sale payment in full of his claim. He asked for the same relief, substantially, in the district court, including the order to sell the land which had been sold under an order of the probate court. The estate had paid the costs of the proceedings in the probate court; the plaintiff should pay in the district court the costs he unnecessarily incurred.
There are other questions suggested in the briefs of the parties, but as this disposes of the case, we think it unnecessary to decide them. We recommend that the judgment of the court below be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The Woodson National Bank brought this action against I. M. Rilea and C. A. Rilea on a promissory note given by the Rileas to the bank, and attached some personal property. The plaintiffs, James Newman and Charles Newman, interpleaded, claiming to own the property attached. The ownership of the property is the vital question to be decided in this case. In the trial at the October term, 1885, a jury was waived, and the court found in favor of the bank. The interpleaders bring the case here for review.
In the trial the only evidence offered was the testimony of James Newman, and the articles of agreement between the Newmans and I. M. Rilea. It appears that in 1880 the Newmans owned a large tract of land in Woodson county, and entered into a contract with Rilea to improve and cultivate it, and raise stock thereon. The Newmans were to furnish money to be expended by Riley in building permanent improvements, buying stock and necessary implements to carry on the farm. Rilea was to report each month his money transactions, and to give an inventory of all the stock and crops on the place twice a year, and at the end of the tenth year he was to return the money furnished, less the costs of permanent improvements, and if the Newmans furnished stock, they were to be credited as cash furnished. Rilea was to buy and raise stock on the farm, and was to have control of the buying and selling of all stock and farm produce. One-half of the net proceeds of the farm and stock should belong to Rilea, and the other half should be paid to the Newmans. Fraud or non-compliance by either party should render the contract voidable, the party complaining to give thirty days’ notice.
Did the Newmans own the property, or were they simply creditors of Rilea ? Let us examine: the money to buy this property was intrusted to Eilea, with the power to purchase what he thought best. If special articles were furnished, he was charged with them, as for so much money advanced. From time to time a division was to be made of the proceeds of the farm and the net increase of the stock, and the New-mans’ share was to be paid in money; at the end of the ten years the money advanced by the Newmans was to be repaid, less the amount expended in permanent improvements upon the farm. All payments were to be made to the Newmans in money, unless they elected to receive payment in some other form. Eilea could sell this property without consulting the Newmans, though he would be liable to them for the one-half of the net amount sold. At the time the goods were attached no notice had been served, as provided in the agreement, that they intended to annul their contract with Eilea.
Prom the terms of this contract we are convinced that the property attached was Eilea’s, and that the Newmans were simply his creditors. The bank was also his creditor, but was more active in securing its claim. The property was regularly attached, was then owned by Eilea, and was subject to attachment for his debts.
A motion was made for a new trial, and one of the grounds alleged was the discovery of material evidence which could not have been produced by the exercise of reasonable diligence at the trial. We do not deem it necessary to pass upon the question of diligence or want of diligence in obtaining it, as we think the evidence alleged to have been newly discovered was not material. The judgment of the court was correct, and we therefore recommend its affirmance.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Leland J. Webb against L. Blackman, to recover for a retainer as an attorney and counselor at law. The case was tried before the court and a jury, and the jury found in favor of the plaintiff and against the defendant, finding the value of the retainer to be $100, and also that the plaintiff had performed services for the defendant, in pursuance of such retainer, to the value of $25; and the court rendered judgment in favor of the plaintiff and against the defendant for $100, for the retainer only, and nothing for the services; and to reverse this judgment, the defendant, as plaintiff in error, brings the case to this court.
The only question presented to this court is, whether an attorney at law is entitled to recover a retaining-fee where he sues only for the retaining-fee and not for services, and where no express or specific contract has been made for a retaining-fee, but only a general contract for the services of the attorney in defending in one action already commenced, and iu prosecuting in another action in contemplation. The word “re tainer,” when used in the place where we are now using it, is defined as follows: “ The act of a client by which he engages an attorney or counselor to manage a cause, either by prosecuting it, when he is plaintiff, or defending it, when he is defendant. The retaining-fee.” (Bouvier’s Law Diet.) “The act of employing or engaging an advocate, barrister, attorney, counselor, solicitor, or proctor, to appear and prosecute or defend. The word is also used for the notice served by an attorney, etc., on the opposite party or attorney, that he has been retained, in which use it is by elision for notice of retainer; and for the fee paid to a lawyer upon his undertaking a cause, in which use it is by elision for a retaining-fee.” (Abbott’s Law Diet.)
It will be seen that the word “retainer” as used in cases of.this kiud means: First, the act of the client in employing his attorney or counsel; second, the notice of the retainer served upon the opposite party or his attorney; third, the retaining-fee. "We think the action may be maintained, and the case of Perry v. Lord, 111 Mass. 504, is sufficient authority therefor. A retainer may be inferred from the circumstances of the case. (1 Am. & Eng. Cyclopaedia of Law, 953; "Weeks on Attys., § 340, and cases there cited.) And the right to a retaining-fee follows every retainer. When an attorney is engaged to prosecute or defend in an action, his entire services in that action are engaged for his client, and he cannot perform services for the adverse party. He is retained by his client for that entire action; and whether his client may ever call upon him to perform services, or not, he cannot perform services in that action for the adverse party, nor can he receive any fee or compensation from the adverse party. All his skill and ability for that case are at the command of his client. A retainer of an attorney at law is presumably worth something to the client, and presumably a loss to the attorney, and whether the attorney is ever called upon to perform any services, or not, in that case, he may when the case is terminated recover for whatever the evidence shows the retainer was worth. Whether he may in any case recover a retaining- fee and also an additional amount for his services, we are not now called upon to determine; and neither are we called upon to determine whether he could in any case recover as a retaining-fee more than his entire services would be worth if he should devote his services to the entire case, and through all its stages, from the beginning to the end. All that we are now required to determine is, whether he can recover a retaining-fee at all, in a case where no such fee was expressly and specifically contracted for, but only a general contract of employment was made. We hold that he can recover.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
This was an appeal to the district court.of Cloud county from an award by commissioners appointed by the judge of the twelfth judicial district of the state, on application of the plaintiff in error, to lay off a route for such railroad in Cloud county, and to appraise the value of and assess the damage to land appropriated to its right-of-way, etc. The case was tried by a jury, at the August term of said court, 1885. Before the trial the railroad company offered in open court to confess to a judgment for $300, and accrued costs, which offer was in writing, but the appellant Townsdin refused to accept it.
The material facts are: The defendant in error was the owner of a quarter-section of land near the city of Concordia; a completed railroad line ran through the land, and cut off a portion on the north side, estimated to contain twelve acres; it was across this twelve acres that the plaintiff sought to appropriate its right-of-way. The amount of land occupied by the track of the defendant railroad company across the twelve acres amounted to three and three-fourths acres. The jury, in answer to special interrogatories, found that the value of the perpetual use of the land taken for the right-of-way was $187.50; that the market value of the laud (twelve acres) lying north of the other railroad immediately before the location of the right-of-way of the plaintiffs in error was $40 per acre, and immediately after the location, irrespective of benefits, was $30 per acre; that the land lying south of the other railroad was not damaged by the location of the right-of-way of plaintiffs in error. The jury returned a general verdict for defendant in error for $292.67-)-. On the rendition of this verdict-the railroad company filed a motion for judgment on the verdict against itself for the amount found by the jury, and costs, to the time of its filing a written offer to confess judgment. Townsdin, by his attorney, filed a motion for a new trial, for error in the assessment of the amount of recovery, and for errors of law occurring at the trial and excepted to at the time. The court overruled the motion of the railroad company for judgment on the verdict, and sustained that of Townsdin, for a new trial. The railroad company brings the case here, and urges as reasons for reversal, that the court erred in sustaining the motion for a new trial filed by the defendant in error. It is shown affirmatively in the record at one place, that the motion for a new trial was sustained because the special findings were contrary to the general verdict; and in another place it is recited, “that the court having heard the motion of the appellant, on consideration does allow the same.” It thus affirmatively appears that the court passed upon both of the grounds for a new trial, embodied in the motion of Townsdin. In this state of the record, we shall not undertake to say that the ruling of the court below was based solely on one of the reasons given. The natural inference from the record is, that both were sustained ; but be that as it may, we do not feel authorized to reverse the ruling. The special findings were inconsistent with the general verdict, and we have not been able to reconcile them, either mathematically or otherwise. This inconsistency could be taken advantage of by either party. If the ruling of the court was induced by this reason, we cannot say it was wrong; but if it was based upon the other ground, we cannot reverse it, for the reason that the evidence and rulings complained of are not in the record; and we are bound to presume that the ruling of the court was right. If this ruling was to be complained of here, all the evidence and the other proceedings of the trial should have been preserved in the record. When the jury returned their special findings into court, either party could have called the attention of the court to their inconsistency, and objected to their reception; but this not having been done, and they having been received without objection, then the only question left was the one presented in the motion for a new trial.
The special findings in the case as compared to the general verdict, come within the decision of this court, in Harvester Works Co. v. Cummings, 26 Kas. 367. There the court says: “We are unable to enter judgment upon the special findings, because they are conflicting, inconsistent, uncertain, and not complete.” The case was reversed. Here there is an irreconcilable difference in the value of the land taken and its value before taken. The railroad company ought not to be adjudged to pay a greater sum than the value of the land. It is true the company is not complaining of this, but it is equally true that the trial court cannot be compelled to render a judgment on special findings that are not only contrary to the general verdict, but grossly inconsistent with each other.
We think the court below was right in granting the new trial, so far as the record we have before us declares the reason of the ruling; and the result is, that we recommend the affirmance of the judgment.
By the Court: It is so ordered.
No. 4078. — When the motion for a new trial was sustained, as set forth in the opinion in No. 4033, the railroad company was granted forty days from the 21st day of August, 1885, to prepare and serve a case for the supreme court; twenty days were allowed Townsdin to make and suggest amendments; .and the same was to be presented for settlement and signature at Concordia, on the first day of the October term, 1885. It was presented at that time, but the court, being engaged in •other business, postponed the settlement from time to time, until February 26,1886, when it was certified, and filed with the clerk of the district court on the 27th of February, 1886. On the 1 st day of March following, this case was called for trial in the district court; the railroad company made an application for a continuance, which was refused, and the case was tried by a jury. After the evidence on the part of Towns-■din was closed, the railroad company requested the court to send the jury out to view the premises, and this the court refused to do. The plaintiff in error then requested the court to submit the following special questions to the jury, to wit:
“1. What was the market value of the perpetual use of .the land taken by the appellee for its right-of-way over the land in question ?
“ 2. Before the location of appellee’s right-of-way, was the land in question divided by any other railroad ?
“3. If No. 2 is answered yes, how much of the land in •question was on the north side of such other railroad ?
“4. What was the market value of the land lying north of such other railroad at and immediately before the time of the location of appellee’s right-of-way ?
“ 5. Is appellee’s right-of-way located north of and adjoining said other railroad’s right-of-way across the land in question?
“6. If the last question is answered yes, then how much ■of the quarter-section of land in question lies north of appellee’s right-of-way ?
“ 7. What was the market value thereof immediately after the location of appellee’s right-of-way, irrespective of any benefits from the construction and operation of the railroad of appellee?”
The court refused to submit to the jury the special questions numbered four and seven, to which refusal and ruling the appellee excepted.
We think this was such a substantial error as compels us to reverse the case. “ It is the right of the parties to have important questions of fact that are based on competent testimony, and which are within the issues of the case, submitted to the jury, and answered upon request, and the refusal of this right is material error.” (W. & W. Rld. Co. v. Fechheimer, 36 Kas. 46.) As this reverses the case, and sends it back for a new trial, we shall not discuss the other questions called to our attention in the brief of counsel for the plaintiff in error.
It is recommended that the case be reversed, with instructions to the court below to sustain the motion for a new trial.
By the Court: It is so ordered.
In case No. J/J25&: This is an action by Townsdin against the railroad company, based upon the judgment rendered in case No. 4078; as that case is now reversed and sent back for a new trial upon its merits, there is no cause of action. It is therefore recommended that it be remanded to the district court, with instructions to dismiss the case.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The only question presented by this record is, can a city of the third class contract for a hook- and-ladder wagon and fixtures, to be paid for in the future? The defendant contends that the authorities of a city have no right or power to contract for appliances and to pledge the credit of the city for the same, except where said payment is to be made out' of the funds appropriated or levied for that current year; while it is claimed ' by the plaintiffs that if the city had authority to contract and purchase such appliances that it has the right to use in payment thereof the money on hand, or to execute orders, notes, or other evidences of indebtedness, to be paid at a future time. We think the claim of the plaintiffs is correct. Section 56, ch. 19a, Comp. Laws of 1885, provides:
“The council may procure fire engines, hooks, ladders, buckets, and other apparatus, and organize fire-engine, hook-and-ladder, and bucket companies, and prescribe rules of duty for the government thereof, with such penalties as they may deem proper, not exceeding $ 100, and make all necessary appropriations therefor.”
In that section ample authority is given to the city to purchase the property contracted for in this case, and we have found no statute that anywhere or in any manner conflicts with this section. If the city has the authority to purchase, unless restricted by some other statute, the power to purchase incidentally carries with it the power to pay for • the same. Defendant insists that the restriction is found in § 44 of said ch. 19a, which is as follows: e
“Sec. 44. The mayor and council of any city governed by this act shall have no power to appropriate or issue any scrip, or draw any order on the treasurer for any money, unless the same has been appropriated or ordered by ordinance in pursuance of some object provided for in this act,” &c.
We think this section places no inhibition upon the city council that will prohibit it from purchasing or paying for the property authorized to be purchased by § 56. It is true that §44 provides that before any money can be drawn from the treasury or appropriated, an ordinance must have been passed authorizing the payment. And before this claim of the plaintiffs can be paid there must be an ordinance of the city authorizing its payment, or authorizing the warrant to be drawn upon the treasurer for that amount, in the same manner as all other sums of money are drawn from the treasury, such as salaries of the city officers, and other claims against the city. In City of Wyandotte v. Zeitz, 21 Kas. 649, which was an action brought against the city to recover for the building of sidewalks, the court said:
“We think that the city of Wyandotte had the power to contract for the making of the improvements mentioned; that authority to contract for the making of such improvements necessarily implies the authority to pay for the same, and in the absence of a statute specifying or restricting the manner of such payment, the authority to give a suitable acknowledgment of the debt, by bond, note, or other contract.” (See also Ketchum v. City of Buffalo, 14 N. Y. 356.)
In City of Burrton v. Savings Bank, 28 Kas. 390, it was said:
“It has been laid down very generally that a municipal corporation has the power, in the absence of any statutory inhibition, to issue any ordinary evidence of indebtedness, and payable either instantly or at any time in the future.” (See Dillon on Municipal Corporations, §407, with note, and cases there cited. Also, see Buffton v. Studebaker, 106 Ind. 129.)
We are therefore of the opinion that this contract is valid, although no tax had been levied and no ordinance appropriating the money had been passed. The power to contract does not depend upon the question whether the money has been raised or taxes levied to meet the indebtedness. If appropriations have been made or taxes levied for that purpose, out of that fund the debt can be paid; but if none has been provided, then it becomes the duty of the city to make such provision and such payment, and for lack of such appropriations the city cannot avoid her contracts and liabilities.
We therefore recommend that the judgment of the court below be reversed, and the cause remanded with an order that the demurrer be overruled. •
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
In the fall of 1880, C. A. Sperry, one of the defendants, was the owner of a leasehold interest in lots 166 and 168 on Tyler street, Topeka, and, being desirous of building a dwelling house thereon, applied to one McVean, “trustee,” for a loan of money for that purpose. The leasehold interest being considered insufficient security for the amount of money required, Hentig and wife, at the earnest solicitation of Sperry, executed a mortgage on real estate belonging to them to McVean, to secure the note of Sperry for the sum of seven hundred and fifty dollars. To indemnify and secure Hentig from having to pay the seven hundred and fifty dollars so loaned by McVean to Sperry, and to save Hentig harmless in every respect from the mortgage to McVean, Sperry and wife, on the 13th day of October, 1880, executed a mortgage on their leasehold interest, or estate in said lots 166 and 168 on Tyler street, to Hentig. This mortgage was dated October 1,1880, and recorded October 14, 1880, at 11:21 A.M. At this time, Sperry was a law partner with Hentig, and doing business in Topeka. This sum of seven hundred aud fifty dollars proved to be insufficient to pay for the construction of the house, and there was left a balance due to the contractor, I. H. Whaley, of one hundred twenty-seven dollars and twenty-one cents, for which sum Sperry give Whaley his note; and within the time allowed by law, Whaley filed what is claimed to be a mechanics’ lien against the property; and on August 9, 1881, suit was commenced by Whaley in the district court of Shawnee county to foreclose this lien. This action was tried on May 29,1883, and judgment was rendered in favor of Whaley against Sperry for one hundred and forty dollars and ten cents; and the amount thereof adjudged to be a mechanics’ lien upon the property in controversy. The judgment has not been satisfied and no sale of the property has been had thereon. After Sperry had defaulted in the payment of interest on the McVean loan, McVean brought his suit against Sperry and Hentig and wife in the circuit court of the United States for this district, to foreclose his mortgage. On October 9, 1883, he recovered judgment for the sum of eight hundred and thirteen dollars and sixty cents; and also obtained a decree for the sale of the mortgaged property. Subsequently, Hentig paid the McVean judgment, and on November 18, 1883, commenced this action to foreclose the mortgage executed to him by Sperry and wife on lots 166 and 168 on Tyler street. I. H. Whaley, the contractor and judgment creditor, was also made a party defendant. Before the trial, he departed this life, but the action was revived as against the administrator of his estate. On August 2, 1886, the court rendered judgment in favor of Hentig for one thousand and thirty-five dollars and fifty-five cents;.and also his costs, taxed atone hundred and twenty dollars. It also rendered judgment in favor of the administrator of the estate of I. H. Whaley, deceased, for one hundred and seventy-three dollars and fourteen cents, and his costs, taxed at forty-eight dollars and eighty-five cents. The judgment in favor of the administrator was adjudged a lien upon the property, prior to that rendered in favor of Hentig. Of this complaint is made. The question, therefore, is whether the mortgage lien of Hentig is prior to the mechanics’ lien of I. H. Whaley, lately deceased. In the action of Whaley v. Sperry, to foreclose the alleged mechanics’ lien, neither Hentig nor his wife was a party. Section 634 of the civil code provides : “ In such action, all persons whose liens are filed as herein provided, and other incumbrancers, shall be made parties, and issues shall be made and trials had as in other cases.” This provision of the statute was not complied with, and Hentig, being the owner of the mortgage upon the premises, and therefore having an interest therein, had the right in the foreclosure of his mortgage to contest the validity as well as the priority of Whaley’s alleged lien. (Civil Code, § 636.) The statement filed by Whaley was not signed, nor was the affidavit signed. It does not appear from the statement, or the papers with it connected, that the claimant ever verified the same. The notary certified that the statement was subscribed and sworn to on the 23d day of March, 1881, but he does not state who subscribed the same, or swore to the same; and in fact, as before stated, the affidavit was not subscribed by the claimant, or any other person. If it had been shown upon the trial that the claimant had signed his name to the affidavit, the objection to the alleged lien would be insufficient. In Deatherage v. Woods, 37 Kas. 59, the statement was not signed. This was held unimportant; but in that case the affidavit was signed; and this rendered the statement and lien sufficient. The statute reads:
“Any person claiming a lien as aforesaid shall file in the office of the clerk of the district court of the county in which the land is situated, a statement setting forth the amount claimed and the items thereof as nearly as practicable, the name of the owner, the name of the contractor, the name of the claimant, and a description of the property subject to the lien, verified by affidavit.” (Civil Code, § 632.)
As the statute was not complied with in making and filing the alleged mechanics’ lien, it cannot be said that the lien is prior to the mortgage lien of Hentig. As to Hentig it had no validity whatever.
The judgment of the district court will be reversed, and the cause remanded for a new trial.
Valentine, J.: Concurring.
Johnston, J., having been of counsel, did not participate in the decision. | [
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Opinion by
Clogston, C.:
This was an action in ejectment and for rents and profits, brought by the defendant in error against the plaintiff in error, for the recovery of the possession of certain, lots in the city of Topeka. Judgment was rendered for the plaintiff for the possession of the premises upon the payment of certain taxes found due to the defendant. And the defendant, plaintiff in error, removed the ease to the supreme court on error, and by the decision of this court the judgment was affirmed as to the right of possession by the plaintiff, but reversed as to the computation of taxes due the defendant, and the case was remanded to the district court of Shawnee county to find the amount of said taxes. (35 Kas. 471.) After the mandate of the supreme court was received by the district court of said county, and before the case was reached for trial on the question of taxes for which it was remanded, and without the request of either party for the benefit of the occupying-claimant act, and without a journal entry being made, or any order showing such request, the plaintiff caused notice to be served upon the defendant that upon a certain day a jury drawn under the occupying-claimant law would proceed to assess the improvements upon the lots in controversy. Afterward a jury was drawn, and the sheriff, by the order of the court, was directed to proceed with the jury to assess the improvements on said lots. On the day the jury was impaneled the parties appeared, and the record and bill of exceptions show substantially the following facts: It was agreed by the parties that the evidence might be introduced to the jury by each party, and that the judge of the court might rule upon all questions of relevancy or competency of such evidence, and explain to the jury their duty in the premises. It was then admitted to the jury by the plaintiff, defendant in error, that all the improvements on the lots in question were put there by the defendant; also, it was shown the gross amount of rent the defendant had received from the said lots with the improvements thereon. ' The defendant, plantiff in error, then offered competent evidence to show that she had constructed a sidewalk along the west side of said property, as directed by an ordinance of said city of Topeka, at a cost of forty dollars, and that said sidewalk was not assessed as a tax against the property; the amount expended by her in the collection of the rents received by her from said property, including the rent of the improvements thereon, and the incidental repairs made to said property during the time said property was so rented, and the rental value of the lots in controversy, exclusive of the improvements; and that said rental value of said lots, exclusive of the improvements, • did not exceed the taxes for the same period; all of which evidence so offered by the defendant was objected to by the plaintiff, and said objections were sustained by the court, and all of said evidence so offered by the defendant was excluded from the jury. Thereupon the jury returned their verdict in proper form to the court. Whereupon the defendant filed her exceptions and objections to said verdict, which were as follows: 1. For the reason that no order or journal entry had been made at the request of either party to the suit. 2. That said verdict was not based upon evidence before the jury. 3. That said verdict was contrary to law. 4. That said verdict was not in accordance with the facts, and not in conformity to the statute in such cases made and provided; which objections were by the court overruled, and excepted to by the defendant. On August 7, 1886, the case came on for final hearing on the question of taxes due the defendant, and the court found the amount of taxes legally due thereon, and thereupon rendered the following judgment:
“It is further ordered, adjudged and decreed that the said sum of $340.85, so found to be due for taxes, interest, penalties and costs to the defendant A. J. Hentig, and the same is adjudged a lien on said lots Nos. 408, 410, 412 and 414, on Clay street in the city of Topeka, and that the plaintiff pay to said A. J. Hentig said sum of money within 60 days from this date, with interest at the rate of seven per cent, per annum, and that the plaintiff shall not be let into possession of said premises until the same is paid with interest.
“And now the exceptions of A. J. Hentig, defendant, to the verdict of the jury drawn in this action under the occupying-claimant act to assess the value of the lasting improvements made on said lots Nos. 408, 410, 412 and 414, on Clay street in the city of Topeka, described in plaintiff’s petition, coming on to be heard, and the court having heard the argument of counsel, and being fully advised in the premises, on consideration does overrule said exceptions; to which ruling of the court said A. J. Hentig objects and excepts.
“It is therefore, on consideration, ordered, adjudged and decreed by the court that the plaintiff, within 60 days from this date, pay to said A. J. Hentig, defendant, the sum of $450, with interest from this date at the rate of 7 per cent, per annum; and in default of the plaintiff’s paying to said A. J. Hentig both of the foregoing sums, to wit, $340.85 for taxes, interest, penalties and costs, with interest, and the said sum of $450, assessed by said jury, with interest, within 60 days from this date, then in that event it is on consideration further ordered, adjudged and decreed that the said A. J. Hentig pay into the clerk’s office for the plaintiff the sum of $250, with interest from this date at the rate of 7 per cent, per annum.”
Whereupon the defendant filed her motion for a new trial upon all the grounds enumerated in the statute; which motion was overruled by the court. The defendant brings the case here for review.
This controversy is in relation to the rights of the parties under the oecupying-claimant act. The record brought to this court presents such a mixture of things that we are not able to clearly say that the facts which we deduce therefrom are absolutely correct, but we shall assume that they are. Section 603 of the code of civil procedure provides how the occupying claimant shall set in motion its provisions. It says:
“Sec. 603. The court rendering judgment in any case provided for by this act, against the occupying claimant, shall, at the request of either party, cause a journal entry thereof to be made; and the sheriff and the clerk of the court, when thereafter required by either party, shall meet and draw from the box a jury of twelve men, of the jurymen returned to serve as such for the proper county, in the same manner as the sheriff and county clerk are required by law to draw a jury in other cases; and immediately thereupon, the clerk shall issue an order to the sheriff, under the seal of the court, setting forth the name of the jury, and the duty to be performed under this article.”
This request by either party, provided for, gives the court power and jurisdiction to order the entry to be made upon the journal, and to the sheriff and clerk of the court the right to draw a jury; but without such request in the first instance no jurisdiction is given, and as no such request is found in the record, and no order or journal entry was made, the sheriff and clerk had no authority to draw a jury to assess the improvements on the property in controversy, and all proceedings thereunder are therefore void, unless the appearance of the defendant before the jury, and the stipulation entered into by the parties that, the judge of the district court might pass upon the evidence to be submitted to the jury, was a waiver of the jurisdiction and estops the defendant from now asserting that the proceedings were void.
It is a well-recognized principle, that if a party to an action over which the court has obtained no jurisdiction, presents himself and becomes a party to the proceedings, he waives the jurisdiction, but the appearance must be in some matter before the court. This then presents the question, was the stipulation between the parties to submit the controversy from a sheriff’s jury to one before the court, or as the stipulation reads, “the judge of the court,” such an appearance as will waive the request for the benefit of the occupying-claimant act. The bill of exceptions shows that the ruling on the testimony was by the court, and the court allowed and signed the bill of exceptions. The plaintiff, defendant in error, insists that all this took place before the sheriff’s jury, and not before the court; that the judge of the court, by the stipulation, was allowed to pass upon the testimony, and that by reason of this stipulation the nature of the proceeding was not changed. If this is true, then the appearance of the defendant would not give the court jurisdiction when it is shown that the jurisdiction of the court was challenged at the time the verdict of the jury was first filed therein. But upon this proposition we are not clear, and as the proceedings before said jury will require a reversal of the action, it is not material now to determine whether the court had jurisdiction of the parties or not; for if it did, then a new trial ought to have been granted. The defendant offered proof of the construction of a sidewalk along one side of the property in controversy, at a cost to her of forty dollars; this evidence was excluded from the jury. This was error. The sidewalk, or other improvements required by law, or by an ordinance of a city, is an improvement that attaches to the property, and because the defendant paid for such sidewalk, instead of having it charged as a tax against the property, could make no difference to the plaintiff. The defendant offered competent evidence to show the charges and expenses paid by her in the collection of the rents and the incidental repairs made on the property, which was also excluded. If the plaintiff is entitled to recover from the defendant the rent of the premises, including the rents of the houses erected thereon by the defendant, then it was competent for the defendant to show what the net amount of rent so collected by her was, and she might show the charges of collection, the re pairs made on the property, and the like; and such charges were competent to be shown when the gross amount of rent had been ascertained by the plaintiff. As to the question whether the plaintiff was entitled to receive the net rent of the lot, including the improvements, we 'express no opinion. We are therefore of the opinion that if the court had jurisdiction, the exclusion of the evidence offered by the defendant was error requiring a reversal of the case.
It is recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
The plaintiff in error has continuously resided upon the land which is the subject-matter of this controversy, since the year 1868. Her husband, in whom the title vested, died in 1879, leaving by will the plaintiff in error, at least a life estate in this land. She has claimed and does claim it as her homestead, and further claims that by force of her homestead rights the defendant railway company never acquired any easement therein, and she brought her action in ejectment to recover that portion occupied and used by the railway company. Counsel for defendant in error contend that, as the plaintiff in error elected to take under the will, her homestead right is waived by that election; and they cite Watson v. Christian, 12 Bush (Ky.), 524, in support of their view. They go still further, and deduce from that decision that as she claims under the will she ought not to be permitted to set up a claim of homestead under the statute, but she should be bound by everything her husband did, to the same extent that he would be bound, because she is privy in estate by virtue of the will. The Kentucky case may have been rightfully decided under the homestead provisions of that state, but this case cannot be accepted as an exposition of the law of this state. We make no criticism upon it; all we say is, that it is not to be taken as an interpretation of the operation of our constitutional provisions and statutory enactments upon the subject of the homestead. Thomas Pilcher had the legal title to the land in his lifetime, and it was occupied by him and his family as a residence. It was his homestead, and was unquestionably the homestead of his wife and children. When he died and ceased to be the head of the family, his wife, this plaintiff in error, became the head of the family, and she was entitled to be so considered. The land continued to be a homestead after his death to the same extent that it was before, and so continues until after all the children arrive at the age of maturity, and until it shall have been partitioned among the heirs. It cannot be made subject to the payment of the debts of the husband. The death of the husband does not affect the homestead rights of the wife or children in any respect. If the land descends to them, it is still a homestead. If the husband wills it to the wife, as in this case, during her life, the life estate supports the homestead right. Any estate that is vendible under an execution will support the homestead exemption. Valentine, J., in Randal v. Elder, 12 Kas. 261, says:
“We do not think it necessary that all these lots or parcels of land should be held by an absolute fee-simple title, but we think it necessary that they all be held by some kind of title or interest different from that which the whole public may have to the property.”
Dillon, J., in Bartholomew v. West, 2 Dill. 293, says:
“ When the statute speaks of property owned by the debtor it does not mean that the ownership must be of full legal title. It is sufficient that the interest may be such as may be sold on execution, or subject to the payment, of debts.”
In Robinson v. Smithey, 80 Ky. 636, the court said:
“That Mrs. Robinson is entitled to a homestead, we think is clear. Her husband devised the entire tract of land to her for life, the remainder to his children, and she was in the actual possession and occupancy with her family. She is the owner and in possession of this tract of land, with a life estate vested in her by the provisions of the will. She can use, sell or dispose of this interest as she pleases, and we see no reason why her right to a homestead is not embraced by the statute. She occupies it as a homestead, and owns it for life. She is asserting her right because she is the owner, and not by reason of having derived it from her husband. It is immaterial in what manner she derives title, if she is the owner and occupies the estate as a homestead. In some of the states the homestead exemption is held to apply to an estate for years. See Patton v. Deberard, 13 Iowa, 53; Johnson v. Richardson, 33 Miss. 462. In Illinois the owner of a life estate is held entitled: Deere v. Chapman, 25 Ill. 610.”
Other courts have gone to as great length in holding that any vendible estate will support the homestead right. The plaintiff in error in this case holds by a devise, which gives her an estate for life, with power of sale, and any remainder goes to the children begotten of the marriage. She has such an estate in this land, without the will, or operation of the statutes of descents and distributions, as will enable her to claim it as a homestead, because she has been in the actual possession of it, residing thereon ever since 1868. It must-be held, for all the purposes of this case, that her homestead rights attached to the land when she first occupied it with her children, as the wife of Thomas Pilcher, the then owner, and that it was at the time of the commencement of this action still her homestead. The court below found that, in 1871 and 1872, the St. Louis, Lawrence & Denver Railroad Company built a railroad across said land, under some kind of an agreement with Thomas Pilcher, the then owner thereof, and that by due process of law the defendant in error succeeded to the rights of that company; that the St; Louis, Lawrence & Denver Railroad Company built its road upon the land in controversy, under a contract for the right-of-way made with Thomas Pilcher in his lifetime, and without any notice from the plaintiff of any objection upon her part. The court found that the terms and conditions of the contract cannot be stated from the evidence.
It will be seen that the substance of the findings of the coui’t is, that some contract for the right-of-way over the land was made by the railroad company with Thomas Pilcher, in his lifetime. The railroad company now prefers to put it in the light of a parol agreement rather than in the light of a parol license. In this view, it is not necessary to pass upon a question much discussed in the briefs, as to whether a license under which work has been done and money expended, is revocable. Assuming that there was a parol agreement between these parties, founded on the several considerations claimed- — these being a change of route, so as to locate on the Pilcher homestead; the erection and maintenance of a depot; the employment of Pilcher’s son by the company, and every other consideration alleged — the question then remains: is the right-of-way of a railroad through and across the homestead such an interest, incumbrance, lien, or diversion from its proper use, as to require the joint consent of the husband and wife ? This is an important question, and it is not to be disposed of without careful consideration. The tacit condition underlying the title to all land in this state is, that in' case it shall be wanted for public use, it can be taken, by paying just compensation therefor; if only a part is taken, jlist compensation is made for that, and for the injury or depreciation of the remainder of the tract.
By the statutes of this state, railroad companies are allowed to appropriate land for public purposes, and the perpetual use of such land is vested in the company, its successors and assigns. The difference between the perpetual use of land, and the fee to it, is only nominal. The interest a railroad company acquires in land in this state for a right-of-way, while only an easement, may be permanent in its nature, and may be practically exclusive. The value of the remaining fee, burdened by such an easement of perpetual use, is only nominal. (22 Minn. 286; 68 N.Y. 591; 122 Mass. 110.) The statute seems to recognize this, because it requires the commissioners to assess the value of the land taken. The amount of land used by the railroad company in this case is about seven acres, of which it had necessarily the exclusive control and perpetual use. Of course, if the husband can grant the right-of-way to this railroad company, he can grant it to others, and by this means the wife and children can be deprived of the use and enjoyment of a greater part of the homestead. This court held, in the case of Coughlin v. Coughlin, 26 Kas. 116, that “the husband cannot, without the consent of the wife, execute a lease of a homestead, and give possession thereof to a tenant.” In this case the lease was executed for five years, but we apprehend the length of the term of the lease can make no difference, the reason of the rule being based upon the general principle deducible from our organic law, that the husband can do no act that will interfere with the occupancy and use of the homestead without the consent of the wife. It has been held by many courts of last resort, that the right-of-way of a railroad across the land conveyed is such an incumbrance as is a breach of the covenants against incumbrances. A leading and early case is that of Kellogg v. Ingersoll, 2 Mass. 97, decided by Chief Justice Parsons, approved by the cases of Prescott v. Trueman, 4 Mass. 627; Harlow v. Thomas, 15 Pick. 68; and Prescott v. Williams, 5 Met. 433. To the same effect are the following cases: Mitchell v. Warner, 5 Conn. 497; Hubbard v. Norton, 10 id. 423; Herrick v. Moore, 19 Me. 313; Haynes v. Young, 36 id. 557; Lamb v.Danforth, 59 id. 322; Prichard v. Atkinson, 3 N. H. 335; Clark v. Estate of Conroe, 38 Vt. 469; Kellogg v. Malin, 50 Mo. 496; Beach v. Miller, 51 Ill. 206; Barlow v. McKinley, 24 Iowa, 69.
All the authorities state that an easement constitutes an incumbrance on land and interferes with the absolute dominion, exclusive use and uninterrupted enjoyment of it. A remark of Judge Valentine, in the case of Randal v. Elder, 12 Kas. 261, is quoted by counsel for defendant in error, as in opposition to this line of authorities, but when his remark is considered in the light of the facts in that case, and the question he was discussing, it will be found not to warrant any such interpretation. The question was whether the debtor could hold as a homestead two or more town lots, separated from each other by an alley, and it was held that he could not; and it is said in this connection that an easement might be created upon or through the land, without in any manner affecting its character as a homestead. The court meant that the easement would not so divide the land, or segregate one tract from another, but that a homestead would be claimed on the whole tract, and this we indorse now, as the law of this case, and would hold, if necessary, that while the homestead right of the plaintiff is incumbered by the right-of-way, it is still her homestead on both sides of the strip of land used by the railroad company.
We have not overlooked the case of Randall v. Texas Cent. Rly. Co., 63 Tex. 586, which decides in effect “that the husband may, without being joined by his wife, grant a right-of-way to a railway company across a tract of land belonging to himself and wife, and occupied by them as a homestead.” We cannot follow that case; the statement in the syllabus is, that the land belonged to husband and wife, and if by that it is meant that the title vested in them both, the grant by the husband would not bind the separate property of the wife. This is so clear that elaboration would not be justified. A reason given is, that the husband can lease the homestead in Texas without the consent of the wife. This caiinot be done in this state, if the lease would in any manner interfere with the wife’s occupancy and use of the homestead. The court says “if the husband should attempt to so exercise this right as to destroy the homestead, or to materially affect it as such, upon proper application the courts would interpose with their equitable power to prevent it.” We think the best protection to the wife and children is by a L J total denial of the right of the husband to incumber the land for this purpose, except with the joint consent of the wife.
The case of C. & S. W. Rld. Co. v. Swinney, 38 Iowa, 182, has been examined with some care; it holds that “the husband can convey a right-of-way over the homestead without the concurrence and signature of the wife to the deed, when such conveyance will not defeat the substantial enjoyment of the homestead as such.” The qualifying expression involves trouble. Who is to determine whether or not the right-of-way will not defeat the substantial enjoyment of the property? The court says if the homestead were a single lot, and the right-of-way occupied it all, or most of it, the case would be very different. Why different? The rule of the Iowa case is too flexible. We caunot adopt it. In this state all questions affecting the rights of the wife and children in the homestead must be discussed and determined by the constitutional and statutory enactments regarding them. These create them fix their limits; direct their operation, and have such mandatory force of expression that this court can discharge its duty respecting them only by a strict adherence to the letter of the organic command. The homestead law is a part and parce of the public policy of the state, and its provisions in cases of this character cannot be waived or avoided, except by an exact and literal compliance with the mode and manner it has prescribed.
A steady and unwavering adherence to the exposition of the scope and bearing of this provision of the constitution as made in the early case of Morris v. Ward, 5 Kas. 239, is not only demanded by its express terms, but the improvidence and necessities of the father and husband are so frequent; the avaricious attacks and greedy encroachments of creditors are so persistent and insinuating, that all judicial powers must be constantly exerted to preserve to the beneficiaries the full extent and measure of this great constitutional creation. Its immunity from such attacks can best be protected by repeated judicial declarations that no interest, incumbrance or lien can attach to or affect the homestead, unless given by the joint consent of husband and wife, except those specifically mentioned in the organic law. The only way to bind the wife to an alienation, lien, incumbrance, contract of sale, lease, or any interest whatever in the homestead that will interfere with or deprive her of the free use, occupancy and enjoyment of all and every part thereof, is her consent freely given, jointly with that of her husband. The fact of joint consent is best evidenced by a writing to that effect, but the constitution does not in express terms require that it shall be go sb0WDj an(j Pence it can be established by such facts and circumstances as the necessity of particular cases requires. Probably no greater amount of evidence or more strict proof will be required to establish it, than is deemed necessary to establish any other material fact, but there certainly must be some showing of joint consent, as required by the constitution. There is no special finding of the court below, that there was consent on the part of the plaintiff in error. It is true that it may be fairly said that it is included in the general judgment, but we are of the opinion that all the findings taken and considered together do not authorize such a judgment. There is not such an affirmative showing in this case as satisfies a reasonable mind that there was the required con sent. Silence is not enough under the circumstances of this case. The execution of deeds of a part of the homestead to the children, in which the right-of-way of the railroad is referred to as a boundary line, is not so positive an act of recognition as to imply previous consent, for it is difficult to perceive how the recognition of a natural or artificial object, as a dividing line, can be held to imply the legality of the existence, or the right of its location at that particular place.
Then again, the finding as to the alleged parol agreement between Thomas Pilcher and the railroad company is not complete; there may have been such an agreement, but what its terms or conditions were, or are, cannot be stated. How can specific relief be granted on such an intangible basis ? Under the evidence and findings, the plaintiff in error had an undoubted right to recover the possession of that portion of the right-of-way over which the running of trains had ceased, and the use of which for railroad purposes had been abandoned.
For these material errors, it is recommended that the case be reversed, and remanded, with instructions to sustain the motion for a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
After Frank Durein had been convicted of a violation of the prohibitory liquor law, the district court required him to give security for his good behavior for the term of two years, in the sum of five hundred dollars; and to be committed to the jail of Shawnee county until the security was given. (Crim. Code, §242.) To prevent himself from being imprisoned, subsequently, with John R. Mulvane and Conrad Kreipe as sureties, he executed a bond, conditioned as follows:
“That the said Frank Durein shall and will be of good behavior for the term of two years from the 23d day of February, 1884, and that he, the said Frank Durein, shall not and will not at any time or place within the state of Kansas during said term of two years, in person or connection with or by the means or through the agency of others, or anyone else, either directly or indirectly, in any form or manner, barter or sell intoxicating liquor of any kind; nor shall he, the said Frank Durein, during said term of two years, in any form or manner, violate any of the provisions of an act of the legislature of the state of Kansas, entitled ‘An act to prohibit the manufacture and sale of intoxicating liquors, except for medical, scientific and mechanical purposes, and to regulate the manufacture and sale thereof for such excepted purposes.’ ”
It will be noticed that there are many superadded words of condition, beyond what were authorized by the court or statute. One of the superadded conditions prohibited Durein for a term of two years from obtaining any permit to sell intoxicating liquors, even if he fully complied with the statute. The court was not authorized to require such a bond, and the bond taken was a substantial departure from the order of the court. It was not executed voluntarily, and therefore it is invalid. (Roberts v. The State, 34 Kas. 151; The State v. Roberts, 37 id. 437.)
We ai'e referred to The State v. Cobb, 71 Me. 198, as holding that superadded words of condition beyond what are authorized, do not invalidate a bond, but may be treated as surplusage only. The decision in that case rests upon The State v. Brown, 41 Me. 535. In the latter case, three of the judges filed a vigorous dissent.
We think the law is properly declared in Roberts v. The State, supra, and are therefore unwilling to follow any authorities that conflict therewith.
The judgment of the district court will be reversed, and the cause remanded, with direction to the court below to enter judgment in favor of plaintiffs in error upon the agreed statement of facts and the special findings of the court.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
As to merits, this case is kindred to the case of Sanford v. Gates, just decided. In other words, it has no merits. T. E. Wash, the defendant in error, was the plaintiff below, and S. M. Benepe, the plaintiff in error, was the defendant below. Wash sued Benepe for the value of a hog, or rather a sow, worth about $20. The case was tried before the court and a jury, and the verdict and judgment were in favor of Wash, and against Benepe. The verdict was for $20 damages, and the judgment was for that amount and the costs of suit. Seven different assignments of error are made in this court, but not one of them is tenable. No exception was taken to any one of the rulings of the court below. Besides, some of such rulings were discretionary, some of them were wholly immaterial, and none of them was erroneous. It appears, however, that as to some of them the plaintiff in error, defendant below, was not entirely satisfied; for with respect to some of them, the rulings were adverse to the plaintiff in error and made over his objections, upon the admission of testimony. The first, and one of the principal of the rulings complained of, has relation to the testimony of the plaintiff below, T. E. Wash, who was testifying at the time as a witness on the trial; and such ruling, etc., will fully appear from the following quotations from the record:
“Q. Now at first when you [the plaintiff, T. E. Wash] saw this hog in the corral, you simply said, ‘ Doctor, [meaning the defendant S. M. Benepe,] if I have a hog in here, that is the one/ pointing to her? A. Yes, sir.
“Q. Then you went to her-
“Defendant objected to a reexamination on these points. The objection was overruled.
“ Q,. Then after going to her, you told the doctor [Benepe] that you couldn’t be mistaken about her ? A. Yes, sir.”
It will be seen that the plaintiff in error, defendant below, objected to the question; the court then made its ruling upon the objection, and no exception was taken to such ruling. The ruling, however, in this as in all the other cases, was correct. As no exception was taken to the ruling, we cannot now consider the ruling for the purpose of reversal. No error of law occurring during a trial can be considered by the supreme court unless the ruling of the trial court with respect thereto was duly excepted to at the time, and the question again raised by a motion for a new trial.
We think no material error was committed in this case, and certainly no available error was committed, and therefore the judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
This was an action to enforce the specific performance of a contract, which the plaintiff alleged was made by and between Adam Hageman and Frank Arthur, the husband of the plaintiff, which contract was claimed to have been in writing, signed by Hageman and wife. The execution of the contract was denied under oath by the defendants, which raises the issue of its existence. After laying a sufficient foundation as to the loss of the bond, the plaintiff, to establish its contents and execution, offered in evidence the deposition of the plaintiff, which deposition was admitted in evidence over the objection of the defendants. Plaintiff was asked, among other things, as follows:
“Interrogatory 7: Are you acquainted with the handwriting of Adam Hageman ? How many times have you seen it ? Ans.: I have seen a great deal of the handwriting of Adam Hageman; am perfectly familiar with it, and would know it anywhere I would see it.
“Int. 8. Have you ever seen a bond for a deed for the premises in controversy ? How many times have you seen it? Ans.: Yes, sir. After we were married, I saw it in Arthur’s trunk; he handed it to me; he told me to read it, and it was written in the handwriting of Adam Hageman, and signed by him and his wife, and was acknowledged by a notary public of Atchison county, Kansas, the acknowledgment being in his handwriting, but the body of the deed was writ ten by Adam Hageman. I had it a number of times; perhaps as many as twenty times.”
The answer to interrogatory 8 was objected to on the ground that no sufficient foundation had been laid, and because it was incompetent. We think the witness showed herself to be competent to testify as to the handwriting of Adam Hageman. Her evidence showed that she was familiar with his handwriting, and that she would know it wherever she saw it. This we think was sufficient; but as to the signature of Mrs. Hageman, no foundation was laid. The witness was not shown to have ever seen her handwriting, Qr to paye had any knowledge whatever about it. The witness did not pretend that she was present and saw the bond signed by Mrs. Hageman, but testified that the first she saw of the bond was after she was married to Frank Arthur, which the evidence showed to have been a long time after the bond was claimed to have been executed. The objection of the defendants was well taken, and that part of the answer relating to Mrs. Hageman’s name being attached to the bond ought to have been sustained. This evidence was material to the plaintiff, for unless it was shown that Mrs. Hageman signed this contract, although executed by her husband, she having survived her husband, it would give to her heirs one-half of the land.
Plaintiff also produced the deposition of William Spalding, which deposition was admitted in evidence over the objection of the defendants. Witness, among other things, was asked the following questions:
“ Ques. 2: Do you know any of the parties to this action or suit ? Ans.: I know one of the defendants, or at least an old man named Adam Hageman, or who told me his name was Adam Hageman.
“ Q. 3. Did you ever have any conversation anywhere with him about any land in the state of Kansas; and if so, state what it was.”
Witness then gave a conversation purporting to be a history of this transaction between Adam Hageman and Frank Arthur, in which he claimed that the old man told him about the execution of this bond for the land in controversy, and that he had received $700 of the purchase-money, and that Frank’s widow was too poor to pay the balance. The witness then said: “We asked him his name, and he said it was Adam Hageman, Farmington, Kansas. We took his name down on a leaf of a memorandum-book, as well as the name of his grandson, and where the land was. We were to write to him about it as soon as we saw the land.”
To this testimony the defendants objected, for the reason that it was not shown that the person spoken of as making the statements alleged had been in any way identified as the Adam Hageman through whom this plaintiff claimed title, and as being hearsay. This objection was overruled by the court. We think this ruling wrong. Before the declarations of a party can be given in evidence, it must be shown that the declarations ~ __ . were made by that party. Here the witness was a stranger to Hageman, and all the information or knowledge in relation to his identity was derived from that conversation with the person who claimed to be Adam Hageman. No description was given of the man; nothing by which his identity could be ascertained. To admit such testimony would be to open the door to innumerable frauds. Adam Hageman now being dead, it leaves the evidence in shape to be contradicted by no one. If this could be permitted, all that it would be necessary to do in this class of cases, would be to find some stranger, have some one represent a party, and then make declarations that would be fatal to his interests, and then let that stranger go into court and testify to this conversation, without any identification of the person from whom he obtained the information. This would lead to great evil, and cannot be tolerated.
The only remaining error that we deem it necessary to examine at this time is, the complaint made by the defendants, plaintiffs in error, to the refusal of the court to pay to the clerk of the court the money which had been paid into court to keep the tender good. Section 131 of the code of civil procedure is as follows:
“ When a tender of money is alleged in any pleading it shall not be necessary to deposit the money in court when the pleading is filed, but it shall be sufficient if the money is deposited in court at the trial, or when ordered by the court.”
This section is the only statute that we have been able to find referring to this question, and our attention has not been called to any other. This statute does not provide that it shall be paid to the clerk of the court. It says it shall be be paid to the court. We see no good reason why the judge of the court might not receive and hold possession money as well as the clerk. The plaintiff at least had done all that it was necessary for her to do in the premises. She had alleged her tender, and on the application of the defendants, and by the order of the court, she had paid the money into court, and now because one officer of the court is in possession of the money instead of another, certainly ought not to be held to be the fault of the plaintiff.
We recommended that the judgment of the court below be reversed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
On the 6th day of December, 1884, the plaintiffs in error commenced an action in the district court of Lyon county. Their petition set forth three alleged causes of action; the first two were on promissory notes, the third on an account. All were alleged to be due in the petition, but the fact was that the account set forth in the third cause of action was not due at the time of the commencement of the action, and did not become due until the 10th day of January, 1885. An order of attachment was issued at the commencement of the action, and levied on certain goods found in possession of one Wilkins, who claimed to own them. On the 12th day of December, 1884, an affidavit for an order of attachment was caused to be filed by the plaintiffs in error, and this affidavit conformed to §§ 230 and 231 of the code of civil procedure. The order of the district judge was obtained for an attachment for so much as was claimed to be not due on the third cause of action stated in the petition; the order of attachment was issued by the clerk, and levied upon the identical property bound by the lien of the first order of attachment.
An answer was filed on the 17th day of December, containing, first, a general denial; second, that the debt sued on was not due at the commencement of the action, nor at the filing of the answer’. On the 19th of March, 1885, Suppe filed a motion to discharge the attachment issued on the 12th day of December, 1884. Among the various causes enumerated for a dissolution of this attachment only two become material in the inquiry, and they are: Third, “No bond as required by law, upon which said order of attachment of December 12, 1884, was based, was ever filed herein;” fifth, “The action in which said order of attachment was issued was prematurely brought before the claim sued on was due, and this attachment was not obtained nor issued at the commencement of the suit.” On the 19th of March, and between the hours of 10 o’clock A. m. and noon of said day, the defendant’s counsel gave oral notice to the plaintiff’s counsel of the filing of the motion to dissolve. On the 20th of March the case was reached for trial regularly on the docket, and the defendant’s counsel called up their motion to dissolve the attachment. Counsel for plaintiffs objected to its consideration, because no reasonable notice of its hearing had been given. The court overruled the objection, and proceeded to consider the motion. It was shown by the admissions of Suppe, that he always had and does now disclaim any right, title or interest in the goods attached under the order he was seeking to have dissolved; and for this reason the plaintiffs in error objected to the consideration of the motion to dissolve. This objection was overruled. On the 30th of March the court made an order overruling the motion to dissolve, on all the grounds stated in the motion except the third, that of the want of a bond, and ordered the third cause of action in the plaintiff’s petition stated to be dismissed without prejudice, and dissolved the attachment issued on the 12th day of December, 1884. Exceptions were saved to all these rulings.
It is insisted here that there was no reasonable notice given of the filing of the motion to dissolve the attachment, and of the hearing thereon; and that it was proper to join causes of action not due with causes of action that were due, in one and the same suit; that when Suppe disclaimed any interest in the attached property, the court should not have entertained his motion to dissolve the attachment by which it was held; that the court erred in the dismissal of the third cause of action; that the court erred in dissolving the attachment on the third ground set forth in the motion, as a good bond was already on file in the action.
I. As to the notice: Whether the notice was reasonable or not under all the circumstances of the case, is a question that, in the absence of some express rule controlling it, must largely rest in the discretion of the trial court. Our attention has not been called to any rule in the judicial district in which the case arose, prescribing what shall be deemed a sufficient notice of a motion of this kind, nor is it alleged or shown that sufficient time was not given the plaintiffs in error for the necessary preparation for the hearing, nor was there any application or showing in the court below for time for that purpose. Under all these circumstances we are not authorized to say that the court erred in hearing the motion to dissolve the attachment on the 20th of March.
II. The next question, and indeed the controlling one in the case is, whether an account not due can be joined in the same action with causes of action that are due ? So far as the claims or demands alleged in the petition are concerned, ther'e can be no question that they could all be joined in the action if all were due. They consist of two promissory notes and an account, and if the account had been due, and separate actions had been instituted on each note, and on the account, they might have been consolidated. The two promissory notes were past due at the time this suit was instituted. The account was not due. They constituted the causes of action as alleged in the petition, and as to two of them there existed a right of action generally; and as to the account, the right of action depended on the existence of the grounds of attachment prescribed by § 230 of the code. The law does not create causes of action — these are created by the acts and contracts of persons; it only gives a right of action under certain conditions and limitations on the cause.
The court is of the opinion that only such claims or demands as are due at the time of the commencement of the suit, can be joined in one and the same action. Ordinarily, an action cannot be instituted on a claim or demand not due; it is only by express statutory authority that such an action can be maintained; and then the right to bring the action is dependent upon the existence of facts entirely disconnected with the contract, claim, or demand. A fraudulent intent, or disposition of property by the debtor’, must exist before an action can be brought on a claim or demand not due. The whole object of the permission accorded is accomplished, then, when property is seized by the process of the law, and held awaiting the maturity of the claim or demand, and the final determination of the rights of the parties by the court. This anomalous proceeding, necessary perhaps to protect creditors who have just demands maturing, is not to be regarded as coming within the meaning and operation of the second subdivision of § 83 of the code, that classifies causes of action arising on contracts express or implied, and permits them to be joined in one and the same suit, but must be viewed as one of those exceptional proceedings to provide against a failure of justice by the reason of the removal or disposition of the property of the debtor that ought rightfully to be applied to the payment of his just debts. It will be noticed that in the section of the code permitting an action to be brought on a claim before it is due, it does not designate it as a cause of action. To constitute a cause of action in cases of this character, there must be a duty to be performed; a right to be enforced, and a failure, omission or refusal to perform, or an infringement of the right. On an account not due, these elements are wanting. There is no failure, omission or refusal to pay. The right to enforce payment is not infringed, because that right does not accrue until the time for payment has expired. It seems to follow, that the statute allowing an attachment to issue under certain circumstances on a claim before it is due, does not make it a cause of action as designated in the article of the code, upon the subject of the joinder of actions. It necessarily follows that the order of the court below dismissing the third cause of action set forth in the petition of the plaintiff in error must be affirmed.
With this view, it is hardly necessary to consider the question of the attachment bond, as when the cause of action is dismissed, the ancillary proceedings inevitably go with it. If a separate action had to be commenced on the account not due, another attachment bond is imperatively required by § 234 of the code.
It is recommended that the judgment of the district court be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Thiele, J.:
Henry Kaiser filed a claim with the state compensation board of Kansas for compensation as a veteran of the world war. It was disallowed and he appealed to the district court, which, after a hearing, found that he was a resident of Kansas on December 3, 1917, when he entered the military service of the United States, but his claim was denied because he had applied for and received a bonus from the state of Iowa. The court found there was no intentional fraud on his part in making both claims. There is no finding that he was honorably discharged from the service nor is there any finding to the contrary, and as the matter seems to have been determined solely on the proposition that claimant was barred because of having received a bonus from the state of Iowa, the point will be passed for the moment.
The trial court refused to allow the claim on the sole ground that claimant, having been paid a bonus by the state of Iowa, was not entitled to a bonus from the state of Kansas. In this the court erred, for, as was said in Knuth v. Kansas Compensation Board, 137 Kan. 392, 395, 20 P. 2d 471—
“The fact of residence controls, and not the procuring of payment of bonus by another state.”
in support of which Parrish v. Soldiers’ Compensation Board, 117 Kan. 301, 231 Pac. 332, is cited.
Under our statute (R. S. 73-102) the state obligates itself to pay each person who was a resident of Kansas at the time of entering the service and who served in any branch of the army, navy or marine corps of the United States prior to November 11, 1918, and who was honorably discharged therefrom, the sum of one dollar per day for the time specified in the statute. It having been found that claimant was a resident of Kansas at the time he entered the service, under the statute and the decisions herein noted, if the claimant was honorably discharged from the service, he is entitled to compensation.
The judgment of the trial court is reversed, and the cause remanded with instructions to determine whether or not claimant was honorably discharged from the military service and, if so, to allow compensation for the time and amount as provided by statute. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an.order sústaining a de nrurrer to evidence presented on a controversy between defendants in two actions, consolidated, to foreclose two mortgages on separate tracts of real property.
In October, 1929, Mary A. Price, the appellant here, who was then the owner of five adjoining quarter sections of land in Gray county, sold three of them to E. A. Shrauner for $25,120. Shrauner paid $6,000 of his own money in cash, borrowed $10,500 from the Roberts Mortgage Company, secured by a first mortgage on the land purchased, and gave this amount, less some expense items, to Mary A. Price, and also gave her a note for $9,836 secured by a second mortgage on the three quarters. About the same time Mary A. Price borrowed $7,000 from the Roberts Mortgage Company and secured the same by a first mortgage on the other two quarters, the title to which she retained. She leased these two quarters to Shrauner for farming. Later the Roberts Mortgage Company assigned both of its mortgages to the Illinois Bankers Life Assurance Company, plaintiff in this action.
■ By the fall of 1931 Shrauner was having difficulty paying interest, taxes and rents, and in October of that year he gave Mary A. Price his note for $639 for interest and rents then due her.
On April 21, 1932, Mary A. Price, as first party, entered into a written contract with H. S. Eshnaur, of Cullison, Kan. This recited that Eshnaur owned a described business property in Cullison encumbered by a mortgage to a building and loan association for about $700; that Mary A. Price owned the two described quarters in Gray county, on which there was a first mortgage of $7,000, and had a one-third interest in the growing wheat thereon, and that she had an interest in the other three quarters in Gray county, on which there was a first mortgage of $10,500, by virtue of her second mortgage, all five quarters being in the possession of and farmed by E. A. Shrauner, who had agreed, on certain terms, to surrender possession of the five quarters to Mary A. Price on demand. By this contract, briefly stated, the parties agreed that Mary A. Price would cause to be conveyed to H. S. Eshnaur the three quarters previously sold by her to Shrauner, and release her second mortgage thereon, and lease to him her two quarters for five years on the usual terms of farm leases, and that Eshnaur would assume and agree to pay the first mortgage of $10,500 on the three quarters, and also assume and agree to pay the first mortgage of $7,000 on the two quarters, the title to which remained in Mary A. Price, and to convey to her his Cullison property, subject to the mortgage to the building and loan association. Mary A. Price also agreed to pay the taxes then due on the three quarters to be conveyed to Eshnaur and to pay past-due interest on the two first mortgages, being the $10,500 mortgage on the three quarters and the $7,000 mortgage on the two quarters.
After executing this contract, and on April 22, 1932, Mary A. Price and H. S. Eshnaur went to Shrauner, and at the request of Mary A. Price he and his wife executed a deed to H. S. Eshnaur for the three quarters. To induce him to do so Mary A. Price gave to him the note for $639 he had executed to her in October, 1931. This deed referred to the “first and second mortgages of record” and warranted the property to be free from liens, “except said mortgage liens of record, which grantee assumes and agrees to pay.” Shrauner also executed an instrument by the terms of which he surrendered the possession of all five quarters to Eshnaur. On the same day Mary A. Price executed a farm lease for five years to Eshnaur for the two quarters, the title to which remained in her.
It appears Eshnaur went into possession of the five quarters, but that Mary A. Price did not pay the accrued taxes on the three quarters, nor the past-due interest on the two first mortgages, nor release of record her second mortgage on the three quarters, and that H. S. Eshnaur did not convey the Cullison property to her.
On August 21,1933, the Illinois Bankers Life Assurance Company filed an action to foreclose its first mortgage of $10,500 on the three quarters, and on the same day filed a separate action to foreclose its first mortgage of $7,000 on the two quarters. Judgment was for plaintiff and a decree of foreclosure was entered in each case November 13, 1933. The real property was sold in each case December 30, 1933, to plaintiff for the full amount of its debt, taxes and costs, and the sales were confirmed February 12, 1934. No, complaint of any of this is made on this appeal. At the time of the confirmations issues raised by the pleadings between defendants had not been tried, and the court had not determined in whom the right of redemption was vested, nor had it fixed the period of redemption. The two actions were consolidated in the trial court for the purposes of trying issues between defendants and determining questions respecting redemption.
We note two matters to get them out of the way: (1) In a cross petition Mary A. Price set up her 'second mortgage on the three quarters and procured judgment and decree foreclosing it as a second lien; but no complaint is made of that on this appeal. (2) In the foreclosure on the two quarters the court found the right of redemption to be vested in Mary A. Price and fixed the period of redemption at eighteen months. In the foreclosure of the mortgage on the three quarters, the court determined rights of redemption. With respect to this there is some discussion in the briefs, but no question as to the correctness of any ruling of the court pertaining to redemption is presented on this appeal, hence these rulings must stand.
This appeal arises on issues presented by the cross petition filed by Mary A. Price against her codefendant, H. S. Eshnaur. In this cross petition Mary A. Price, among other things, set out her contract of April 21, 1932, with H. S. Eshnaur and alleged that after its execution the provisions by which she had agreed to pay accrued taxes on the three quarters and past-due interest on the two first mortgages were orally modified in such a way that Eshnaur assumed and agreed to pay these items. In his answer to this cross petition Eshnaur specifically denied such oral modification of the contract and denied that he ever had assumed and agreed to pay such past-due taxes and interest. This presented the issue tried in the' court below. The written instruments were received in evidence. Mary A. Price testified in substance that at the time the contract was executed, April 21, and at the time she arranged with Shrauner to convey the three quarters to Eshnaur, and executed her lease to Eshnaur, on April 22, she had been informed that the taxes and interest were delinquent for one year only, and advised Eshnaur that such was her information. She told him, however, they had better go to the county seat and find out for sure about those matters; that after these instruments had been executed they went together to Cimarron, the county seat, and learned that the delinquencies were for more than one year and that they amounted to much more— nearly three times as much as she previously had been informed. She did not have the money to pay these amounts, and so advised Eshnaur.
“Q. Now, you say when you were in Cimarron, that you told Mr. Eshnaur that you couldn’t raise the money to pay the taxes and interest? A. Yes.
“Q. What did Mr. Eshnaur say at that time? A. I don’t remember what he said.
!,Q. Did he tell you at that time he would pay it for you? A. He told me at that time, we will go through with the deal.
“Q. Then at the time you were in Cimarron you still did think there might be a chance you could raise this money? A. I even had the promise then of raising some money by the first of October.
“Q. When did it become apparent to you that you couldn’t possibly raise this money? A. It was apparent that day. Told him on the way out I couldn’t do it fight then.
“Q. You thought you would a little later? A. I thought I would a little later.
“Q. When did you finally make up your mind that you couldn’t raise the money? A. I don’t know just how soon that was. It was some months later that I continued trying to raise money; up to the first of November, I expect.”
They then went to Liberal, where Mrs. Price thought she might get the money, but she was unable to do so. She testified she then told Eshnaur:
“I said, there is nothing I can do; let it drop so far as I am concerned; nothing I can do at the present time. Nothing I can do.
“Q. Did you specifically agree on anything relative to any part of this — • these taxes at that time there in Liberal — orally between you and Eshnaur as to who should pay them and how, after you returned from Cimarron? A. No, we didn’t only as he stated.
“Q. What do you mean, as he stated? A. In this, he said we will — we will go ahead and make the deed as I must have a place to live. I have wheat, I will take care of this — in storage — I will take care of it some way now. I said, T will malee it right some way just as quick as I can in some way.’
“Q. Did he have anything to — have any growing crop? A. He said he had a wheat crop coming.”
A few days later, perhaps April 26, they talked about this with Mr. Roberts, of the Roberts Mortgage Company. On that occasion Eshnaur offered to give her a deed to the land he had received from Shrauner and to cancel the five-year lease on the balance, but she refused this offer.
“Q. You were still discussing the terms of the deal between you at that time? A. Yes.
“Q. Trying to figure out some deal that would be satisfactory to both of you? A. Certainly.
“Q. So that you hadn’t made any contract up to that time that was satisfactory to both of you? A. Only what is had in writing.
“Q. How long after the contract in writing was made was it before you had an oral contract that was satisfactory to both of you? A. I don’t think we ever did get one really that was satisfactory.
“Q. That is you never did have any contract orally on which you both agreed, did you? A. I claim still that if he took up some of these taxes, then I would do something and he always refused to pay any money on the taxes; that is what held me up all the time.
“Q. Then you never did, Mrs. Price, have a satisfactory oral arrangement with Mr. Eshnaur, did you? A. I never did satisfactorily; because he failed to pay the taxes as he agreed to.”
This is the only testimony offered in support of the alleged oral modification of the written agreement. Clearly it was insufficient to establish the allegation. It was not error to sustain a demurrer to the evidence.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by.
Thiele, J.:
Defendant appeals from a judgment under which her real estate was sold because of her failure to pay dues to the plaintiff club.
The questions presented for considerations arise out of facts concerning which there is no dispute.
J. D. Waters and other persons owning adjoining lands, and perhaps others, caused the Lake of the Forest Club, hereafter usually referred to as the club, to be incorporated for the purpose of maintaining a club for social enjoyment, to hold and improve real estate and to make necessary rules and regulations for the transaction of its business and the government of its members, and other purposes not necessary to be detailed. On December 9, 1910, a plat of “The Lake of the Forest Club” was executed and filed as required by law. Under the dedication, the lands reserved for the use of the club as paths, drives, walks and lake were dedicated to the club as such. By-laws covering the activities of the club were adopted. They cover the field of its activities, but we here note only the following: Two classes of members were provided:
(1) Active members, who own lots and have a right to vote; and
(2) Associate members, who have no right .to vote, and are entitled to the privileges of the club until the following May 1, when their memberships cease and new applications must be filed.
The dues for active members are $150 per year, payable in two installments, and for associate members $150 per year, payable with application for membership. Article' VIII, section 10, reads as follows:
“Members shall be notified on or before the 15th day of each month the amount of their indebtedness to the club. A member shall be suspended for nonpayment of dues sixty days or later after the same are due at the discretion of the board of directors. Any member who has been suspended may be reinstated at any time by the board of directors upon the payment of all such dues together with court costs, if any, and attorney fees expended in collection of account against such suspended member:
“Should any member who has been so suspended fail to pay said indebtedness to -the club within ten days after being so suspended, then the board of directors is hereby authorized and instructed to immediately bring suit in the proper court to set aside the membership certificate that is held by said member; also the deed to said member’s said lot, and ask the court to order sale of same to any person qualified to become a member of the Lake of the Forest Club or to any corporation or association approved by the board of directors. The proceeds of the said sale of said membership certificate and lot shall be distributed as follows:
“First — All court costs and attorney’s fees shall be paid.
“Second — All indebtedness, with interest due the Lake of the Forest Club, shall be paid.
“Third — All the residue, if any, shall be delivered to the suspended member and the right of said member so suspended to redeem said property shall be waived.”
Provisions for expulsion need not be noticed.
On June 25, 1912, Waters and others conveyed the lot in question here to one Dengel by a warranty deed containing the following clause:
“This deed is delivered by the owners and accepted by the purchaser subject to the by-laws adopted by the Lake of the Forest Club now in force or as the same may be hereafter amended.”
Dengel conveyed to Spake by warranty deed which contained no such provision. On February 19, 1927, Spake conveyed to appellant by warranty deed, which recited in part:
“. . . All of lot one hundred thirteen (113) of the Lake of the Forest Club in Wyandotte county, Kansas, as per recorded plat thereof, subject to the by-laws of the Lake of the Forest Club as originally adopted and now in force or as same may be hereafter amended.”
On February 22, 1926, appellant filed her written application for membership in the club, which recited in part :
“I hereby apply for membership in the Lake of the Forest Club, Edwards-ville, Kansas, and if accepted, I will comply with and be governed by the rules and regulations of said club as they now exist, and as they may hereafter be enlarged or amended.”
The lot in question has a residence on it. It does not appear whether appellant occupied it or not, but from May 1, 1930, and up to the trial of the action it was occupied by a tenant, an associate member of the club, who paid her as rents the sum of about $2,400. This tenant also paid his requisite dues to the club. Although not clearly expressed as a statement of fact, appellant seems to have taken the position that if her tenant was an associate member paying dues, she was relieved therefrom, for she failed and refused to pay the dues for the year 1930 and thereafter. In this condition, the club made no effort to suspend appellant as provided in the by-laws, but on July 27, 1933, it filed its petition alleging formal matters, certain provisions of the by-laws, the application for membership of appellant and that she became a member of the club, the conveyance of the lot to appellant and the condition of the grant as quoted above; that appellant had failed to pay dues as shown on an attached exhibit; that the club by reason of nonpayment of dues was entitled to a decree setting aside her certificate of membership and her title to the lot and ordering the lot sold to satisfy the judgment, and judgment was prayed accordingly. We omit all reference to the defendant, the Brotherhood State Bank, for its rights were found to be inferior to those of the club, and it has not appealed. Appellant’s answer was a general denial; an allegation the facts stated in the petition did not constitute a cause of action; a denial of the correctness of the account or that she is indebted in any sum; a denial that plaintiff had a capacity to sue; an allegation that there was no privity of contract between plaintiff and defendant, as plaintiff had never been the legal or equitable owner of the property; that plaintiff had no lien upon the described real estate; that the provisions of the by-laws were and are insufficient to constitute a lien upon said property or to entitle plaintiff to the relief sought; and that the provision of the by-laws relied on is not a provision for a lien, but for forfeiture of title upon happening of a certain event, and is void. At the trial, an agreed statement of facts was filed covering most of the matters in issue.
The court made findings of fact, from which the above statement is largely drawn, and concluded that the application for membership and the by-laws constituted a contract between the parties; that the condition in the deeds from Waters to Dengel and from Spake to appellant Buttles constituted a covenant running with the lands; that appellant was not suspended as a member, was thereby enabled to collect rents from her tenant and cannot be heard to complain she was not suspended. It also concluded that payment of dues by the tenant did not relieve appellant from the obligation imposed on her to pay annual dues as an active member ; that the plaintiff club was entitled to judgment and the judgment constituted a first lien on the lot; that the lot should be sold by the sheriff to a person qualified to become a member of the club, and without equity of redemption, with exceptions not here material. The journal entry of-judgment, filed August 31, 1934, followed consistently the conclusions of law and awarded judgment to the club against defendant, ordered sale of the real estate, and provided:
“That upon the confirmation of said sale, the said sheriff shall make, execute and deliver to the purchaser at said sale a good and sufficient deed of conveyance, subject, however, to the by-laws of the Lake of the Forest Club, a corporation, then in force or as may, thereafter, be amended. That, however, in the event of purchase of said real estate and premises by anyone other than plaintiff, for an amount in excess of plaintiff's judgment, the defendant, Dorothy W. Buttles, shall have eighteen (18) months equity of redemption, from said sale, and in such event, upon confirmation of such sale, the sheriff shall issue to such purchaser a certificate of purchase, subject to such exemption.”
It is here noted that the court made no order suspending or otherwise terminating appellant’s membership in the club. The findings of fact and conclusions of law were filed August 14, 1934. A motion for a new trial was duly made and thereafter denied. Notice of appeal was served September 17, 1934. Meanwhile, the property was offered for sale and sold by the sheriff on October 3, 1934, to the plaintiff for the amount of its claim, and on November 3, 1934, this sale was confirmed. No supersedeas bond seems to have been given.
Appellant complains the trial court erred in not sustaining her demurrer to the petition. The contention-is based on the proposition that the by-laws of the club, having been assented to by the appellant, constituted a contract between them, and that is correct. (See McLaughlin v. Wall, 86 Kan. 45, 119 Pac. 541; Wichita Council v. Security Benefit Ass’n, 138 Kan. 841, 848, 28 P. 2d 976; 94 A. L. R. 629; 25 R. C. L. 49.) From this it is argued that before the club could maintain an action to recover dues, notice of nonpayment must have been given, and the course of procedure outlined in the by-laws followed, and that such notice not having been given and such procedure not having been followed, the appellee could not resort to the courts for relief. It may be observed that the by-laws cover not only the social conduct of the club, but also cover the business and financial relations that exist between the club and its members; and that so far as payment of dues is concerned, the times when the dues of an active member are payable are definite and fixed. While the by-laws do prescribe a procedure, there is no provision making such procedure exclusive, nor is there any requirement that there be either suspension or expulsion of a member as a condition precedent to the club’s right to collect its due from the members. Authorities holding that a member must exhaust his remedies under the by-laws before appealing to the ' courts are called to our attention, but it is not necessary that they be discussed for they deal largely with rights of expulsion. In Supreme Lodge v. Raymond, 57 Kan. 647, 47 Pac. 533, contention was made that where a course of procedure was outlined in the bylaws, which provided that the decision of the Supreme Lodge as to rights of members was conclusive, no recourse to the courts could be had, but it was held:
“The right of resort to the courts will not be deemed to have been taken away by mere inference; and, if it can be done at all, it will only be where the restriction is stated in the clearest and most explicit terms.” (Syl. ¶ 2.)
While the petition did allege facts which would have warranted cancellation of membership and expulsion from the club, the trial court treated the petition as a suit for money only, and made no order of expulsion. The petition alleged facts which show that appellant became a member of the appellee club under by-laws which obligated her to pay dues, and that she had not paid them as they became due. As the by-laws prescribed no exclusive method by which the dues could be collected, and as there was no attempt in the by-laws to compel collection of dues by suspension or expulsion of the member to the exclusion of a resort to the courts, we are of the opinion the trial court properly overruled the demurrer.
The remaining specifications of error overlap and will be discussed together. Under the plan for maintenance of the club, as evidenced by the by-laws, each active member could own only one lot, although adjoining owners could rearrange their boundaries or could divide a vacant lot between them, provided they assumed and paid the dues chargeable to such lot. It is argued from this that it was apparent funds were to be raised from the lots, and when appellant’s tenant paid dues equal to those chargeable to appellant, in effect her dues were paid, and hence the appellee club was entitled to recover nothing from her. However, the by-laws made it just as clear that the club was for the use and enjoyment of its limited membership of two hundred, divided into active and associate members, the actives being lot owners, and the associates being nonowners. Article IX, section 9, provided that:
“Members will not be permitted to let, rent or loan cottages to nonmembers, nor to a member not in good standing.”
When appellant’s tenant, who was an associate member, paid the required dues, he did it, not in behalf of appellant, but in his own behalf and as a condition to his right to enjoy the club’s privileges and to occupy the residence owned by the appellant. It is undisputed the tenant not only paid his dues, but he paid appellant substantial amounts for the use of her real estate. In this connection it is further argued that the possession by the tenant is in legal effect the possession of the owner, and that the payments by the tenant are therefore the payment of the owner’s dues. Whatever might be said of such a premise and conclusion, it is contrary to the provisions of the by-laws and cannot prevail. Appellant’s contention, that her dues were paid by her tenant’s having paid dues and for that reason she was not indebted to the club, is not good.
Some space is devoted to a discussion concerning the correctness of the finding that provisions in the deeds, as quoted above, constitute covenants running with the land, it being argued that the club never owned the real estate and is not entitled to enforce the covenants. We shall not discuss this contention further than to say that under the circumstances here, appellee was not suspended or expelled as a member for violation of covenants in her deed. The trial court did not err in refusing to make the requested finding of fact that the club never held title.
A more important question is raised, that the trial court erred in refusing to allow appellant an unqualified right of redemption. For the purposes of discussion, it may be assumed that the order as made was equivalent to a refusal to allow any right of redemption. The club seeks to uphold this part of the judgment on the ground that the by-law is valid and binding, that the waiver therein is not such as is contemplated by R. S. 60-3438 and that therefore our redemption statutes (R. S. 1933 Supp. 60-3439, R. S. 60-3462) do not apply. Assuming, without so deciding, that the by-law is valid, it appears that the club took no steps as provided in the by-law to suspend appellant and appropriate her property for nonpayment of dues. The clubs’ argument that appellant waived lack of notice by contesting in court is not good. Had she failed to contest there, her rights would have been cut off without her having had any hearing whatever. The situation is not like that where a person entitled to notice appears without notice and contests, as where owners without notice appear for a fence viewing, road opening, etc., or where a defendant answers to a suit without having been served with summons. So far as the record shows, appellant had no notice of the club’s intention to enforce payment until summons was served. But whether the by-law is good or not as a waiver of right of redemption makes no difference here, for the club did not follow the by-law in bringing the suit. The trial court did not consider that it was following the by-law procedure, for it made no order or rendered no judgment of suspension against appellant, and so far as the record shows she is still a member of the club; neither did the court order the property sold without any right of redemption. In its efforts to collect its dues, the club was under compulsion either, to follow its by-law method of procedure, or to pursue its right in an action at law; it could not confuse the two methods and bind the appellant as to waiver of right of redemption and not itself be bound by the provision as to giving notice. If the club did not follow the by-laws and give notice as provided in article VIII, section 10, as a condition precedent to maintaining a suit, then it cannot insist on the owners’ waiver of right of redemption, however good it might otherwise have been.
Space forbids an exhaustive analysis of the purposes of the club as evidenced by its charter and by-laws. The by-laws of any such organization deal with two things: The conduct of the membership so that the social objects of the club maj’- be accomplished, and the financial obligations of the membership in order that the club may continue to exist. The active membership provision required the payment of stated dues, and while there is no express statement granting or reserving a lien for unpaid dues, such a lien may be implied from article VIII, section 2, dealing with active members, where in connection with rearrangement of boundaries or division of a lot between adjoining owners, it is stated:
“Provided, however, that conveyance for any such vacant lot shall be conditioned upon the grantees thereof agreeing to assume and pay all assessment charges and dues properly assessed or chargeable against said divided lot;”
and it may be implied from the. provisions that active members must be lot owners, and that ownership is restricted to one lot, or to one lot and a portion of an adjoining lot, from the provision as to dues, and from the provisions of article VIII, section 10, heretofore quoted in full.
Appellant insists that the club, by not promptly asserting its claim against her, is guilty of laches and is not entitled to a lien for the amounts found due. No action of the club has prejudiced appellant in any manner — rather the club’s delay permitted appellant to continue in possession of her property, receiving substantial rentals therefor. It is not claimed the statute of limitations had run ■ — only that appellant was - prejudiced by delay in bringing suit. Under the facts, there was no undue delay, and the contention is disapproved.
In effect, the sale was ordered and made under special execution for the sale of specific property to conform to the order of court, and under such sale appellant was entitled to an unqualified right to redeem. Under the facts of this case the period should have been eighteen months from the date of the sale (R. S. 1933 Supp. 60-3439), and the right to redeem should not have been qualified by any conditions as to a sale to plaintiff or as to the amount of the sale price.
Insofar as the judgment of the lower court allows a recovery by appellee against appellant and orders sale of the described real estate, it is affirmed. Insofar as it denies appellant an unqualified right to redeem the real estate when sold, it is reversed. The cause is remanded with instructions to eliminate the qualifications upon appellant’s right to redeem and to fix the period of redemption at eighteen months from the date of the sheriff’s sale. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff brought this taxpayer’s suit under authority of the civil code (R. S. 60-1121) to enjoin the defendants from carrying into effect the terms of a contract for the purchase and sale of electric generating machinery for a municipal light and power plant which the governing body of the city of Glen Elder had decided to construct.
It appears that for some years past Glen Elder, a city of the third class, has owned an electric distribution system -whereby it serves itself and the citizens of that town with light and power. The plaintiff supplies the electric energy to the city for these purposes. This arrangement has resulted in an average annual profit of $3,386.42 to the city for the last five years. Part of this profit from time to time has been transferred to the general fund of the city, with the consequent lightening of the ordinary burden of the'taxpayers. At the time the challenged contract was executed between the city and Fairbanks, Morse and Company there was a balance of $5,250.62 in the city’s light fund, which had largely been derived from profits on the sale of electricity to its inhabitants. The city itself, however, pays something into this fund out of its general revenue on some theory not important here.
In January, 1934, the governing officials of Glen Elder entered into a contract with Fairbanks, Morse and Company, to purchase engines and machinery for generating electric energy so that the city would have a complete municipal light and power plant of its own, and thus terminate its business relationship with the plaintiff. As the legality of this contract and the authority of the city to proceed under it constitute the vital question in this lawsuit, its significant features, much abridged, must be stated here.
In consideration of the delivery to the city by Fairbanks, Morse and Company, a manufacturer and purveyor of electric generating machinery, of two Diesel engines of specified ratings, with the requisite alternators, exciters, switchboard, etc., the city agrees to pay to the company the sum of $17,185, on terms. Of this amount $4,000 is to be paid out of the light fund already on hand, and the balance in sixty monthly installments, to be evidenced by “revenue certificates” bearing interest at' 6 percent, payment to begin in thirty days after the installation of the power machinery. In this contract the city likewise agrees:
(1) To construct a building to house the purchased machinery and to 'supply the needed common labor, cartage and materials therefor.
(2) When the machinery is installed, if the city desires a test of its efficacy, it shall request it. During such test “the engineer of the company shall be considered to be the agent of the municipality.”
(3) The liability of the company is limited to replacement of defective parts of the machinery upon stipulated conditions. The company shall not be held responsible for damages of any character arising out of the use of said machinery or materials, either original or consequential, it being specifically agreed that the liability of the company is limited to replacement of defective parts of machinery.
(4) The title to the power machinery remains in the company until fully paid for, notwithstanding any judgment which may be taken against the city in the event of breach or dispute about this contract.
(5) The machinery shall also remain as personal property of the company, although it is emplaced and attached to realty; and the city shall pay the taxes thereon and keep the property insured for the benefit of the company.
(6) The “revenue certificates” which the city is to issue to evidence its obligations to the company for the balance of the purchase price are to be “not general obligations of the said municipality payable from taxes or its general funds but only special obligations payable from the net revenues of the plant.” “Net revenues” under this contract are defined to be “the balance of the gross receipts of the municipality’s light plant after the payment solely of the legitimate and necessary expenses of the operation of said plant.”
(7) The city agrees to maintain rates which will produce sufficient revenues to pay its monthly obligations to the company “so far as it may be permitted to do so by law.”
(8) The municipality agrees to operate said plant as a municipal plant until all obligations due under this contract have been fully discharged; and until such time shall not dispose of said plant in any manner so as to deprive the company of its title to or interest in said machinery or materials.
(9) Any delays or defaults on the part of the city will subject it to penalties of $12.50 per day plus expenses.
The gist of plaintiff’s petition was that the contract was ultra vires, and to carry it into effect would impose an illegal burden of taxes upon it. It also set up a special interest in the contract by virtue of its own contractual relationship to the city, and alleged that performance of the challenged contract would operate unlawfully to its prejudice.
The city’s answer admitted the execution of the contract, denied any illegality in its terms, denied all intention to incur any illegal obligation which might result in a burden to the taxpayers, asserted its right to use the special fund on hand and the prospective revenues of the power plant to pay for the purchased machinery, and challenged plaintiff’s capacity to bring the action.
Fairbanks, Morse and Company filed its separate answer joining issue with plaintiff on questions of law.
The evidence tendered by the litigants went in without material dispute of fact. The trial court held that plaintiff could not maintain the action, and otherwise ruled generally for defendants, and judgment was entered in their behalf.
At the outset of their brief defendants raised a question- of the plaintiff’s capacity to maintain the action — either as a taxpayer or on account of its personal interest in the present arrangement for furnishing the city with power and light. At the oral argument in this court, however, that question was waived, so that a possibly inconclusive result of this appeal might be avoided. To the same end the attorney general entered the name of the state as a party, so that a litigant of undoubted capacity to challenge the validity of the contract and the power of the city to make it is now in the case. This is an approved procedure. (State v. Topeka, 68 Kan. 177, 74 Pac. 647; State, ex rel., v. Public Serv. Comm., 135 Kan. 491, 11 P. 2d 999; but see, also, Stevenson v. Shawnee County, 98 Kan. 671, 159 Pac. 5.)
A number of legal questions challenging this contract as a whole and certain of its details in particular are presented for our review. On behalf of defendants a zealous and painstaking effort is made to justify the contract and the judgment of the court sustaining it, notwithstanding some minor features of the contract which might not pass the scrutiny of this court. It is suggested that any such'are severable from the contract without impairing its vital features.
Going at once to the main question: Had the mayor and councilmen of Glen Elder any statutory authority to obligate the city in the terms specified in the contract and the pertinent city ordinance?
Defendants cite R. S. 12-101 and R. S. 12-842 to justify their action. The first of these two is the one which confers in general terms the familiar corporate powers enjoyed by cities of this state. Special power to establish a municipal light plant is no more conferred by this section than it is to establish a municipal grocery or a municipal filling station. That was decided in State, ex rel., v. City of Coffeyville, 127 Kan. 663, 667-668, 274 Pac. 258, where this particular section was unsuccessfully relied on by the city to justify the making of a contract to sublet its municipal airport.
The defendants quite properly rely on R. S. 12-842 as authority for the city of Glen Elder to embark on the business of constructing and operating a municipal light and power plant; and by the same authority the city may expand and extend whatever facilities of that character it may now possess. (Hibbard v. Barker, 84 Kan. 848, 115 Pac. 561.)
But do the provisions of this statute, fairly construed, authorize such a contract as Glen Elder and its governing officials have made with Fairbanks, Morse and Company to' acquire the requisite facilities to provide the' city with the desired light and power plant? The statute cited above had its inception in section 3 of chapter 136 of the Laws of 1903. It was amended in 1911 to read as it now appears in the revision of 192-3. -In 1903 the only statutory provision whereby the funds could be raised to establish a municipal light and power plant were those conferred by section 4.of the same act. That section provided that for “any and all indebtedness, obligation, or liability contracted for or created” in the acquisition or pwchase of a light and power plant, bonds of the eity might be issued under prescribed regulations and limitations. The section descended into such directional details as that the contractor building the plant might be paid in bonds, bond maturities were prescribed, and annual installment issues were authorized. Nowhere in the statute of 1903 or elsewhere is the project of procuring a municipal light plant without a bond issue specifically sanctioned, doubtless for the reason that in 1903 the instances of a city’s having sufficient funds available for such a purpose were so rare that it did not challenge legislative attention. And under R. S. 12-842, which is section 3 of chapter 136 of the Laws of 1903, as amended in 1911, if the city had the money on hand or in sight, it might be lawful to purchase, construct or acquire a power and light plant without a bond issue. Such an unusual situation apparently would permit a city government to embark on municipal ownership and operation of a light and power plant without a vote of the people — a result which probably the legislature never anticipated. Be that as it may, where the city does not have the money, or the money in sight through a levy already lawfully made, it seems clear that section 4 of chapter 136 of the act of 1903, as revised in R. S. 12-843, is the proper course for the city to pursue. That section reads:
"That for any and all indebtedness, obligation or liability contracted for or created for any of the purposes mentioned in the preceding section, any such city, acting under the provisions thereof, is hereby granted full power and authority to issue bonds of the city to an amount equal to such indebtedness, obligation, or liability; the power to create or incur such indebtedness, obligation, or liability, and to issue bonds as herein provided, being independent of and in addition to like and other powers heretofore granted such cities; and such bonds may be sold as provided by law, and the proceeds thereof used in the payment of such indebtedness, obligation, or liability; such bonds shall not be used or sold except as directed by the governing body of said city, and such bonds shall not be issued to an aggregate amount exceeding fifteen per cent of the assessed value of such city as shown by the assessment last preceding the issuance thereof: Provided, That no bonds shall be issued except upon a vote of a majority of the qualified electors of such city: And provided further, That any such city shall have full power and authority to use any surplus arising from the proceeds of any such plant or plants for the purpose of bettering, constructing or installing any such plant that such city may have or may desire to acquire by construction or purchase.”
Defendants contend that the method prescribed by this section for meeting “any and all indebtedness, obligation or liability” incurred in providing the city with a complete municipal light and power plant is not exclusive; and that the scheme to meet the obligations of the city to the vendor of the generating engines and related machinery in the sum of $17,185 by an issue of “revenue certificates” to be paid in monthly installments during the next five years is both lawful and feasible. The term “revenue certificates” is a new one in' Kansas officialdom and has come into vogue along with other additions to our governmental nomenclature in recent years. There is express statutory sanction for the issue of “revenue” obligations payable out of earnings of municipal utilities and not out of taxes (Laws of 1933, Special Session, ch. 32; R. S. 1933 Supp. 12-805a et seq.), but it is not contended that the “revenue certificates” which Fairbanks, Morse and Company are to receive for their engines, etc., in this case are to be issued under the sanction of the act of 1933.
It seems clear to this court that since a specific method of financing the establishment of a municipal light and power plant is prescribed by statute, and that statutory method gives no sanction to the proposed method of payment challenged in this action, the contract is illegal in its main features, and this court must so hold.
The diligence of counsel has brought together a plethora of cases from other jurisdictions which we have patiently perused; but all we need say about them is that if our own statutes were difficult to construe, or if we had a serious want of analogous decisions in our own reports, the cited cases from other jurisdictions so earnestly pressed on our attention would be very helpful; although, even among them, we would have to make a choice, for the industry of counsel for plaintiff has been no whit behind that of defendants in marshalling cases which hold that where governmental or corporate powers are conferred upon a municipality, the granted powers are exclusive, and no powers are impliedly conferred except those clearly necessary to the effective exercise of the powers expressly granted. That rule of law, however, is trite and familiar to the Kansas bench and bar. In the very first volume of our reports where this court was announcing the rule of law to which we have just referred, it said:
“The authorities . . . are too numerous and too well known to need citation.” (City of Leavenworth v. Norton, 1 Kan. 432, 436.)
That the rule has lost none of its potency with the passing years may be noted in City of Mankato v. Jewell County Comm’rs, 125 Kan. 674, 676, 266 Pac. 96,” where it was said:
“Cities in this state are municipal corporations created primarily for the purpose of local government. (Art. 12, § 5, Const.; R. S. 12-101.) They have only such power and authority as is specifically given them by the legislature, or those that are necessarily implied in the powers specifically given. (City of Leavenworth v. Rankin, 2 Kan. 357; Beach v. Leahy, 11 Kan. 23; In re Pryor, Petitioner, 55 Kan. 724, 728, 41 Pac. 958; State v. Downs, 60 Kan. 788, 792, 57 Pac. 962.)” (p. 676.)
The same rule applies to all governmental agencies, such as townships, school districts, drainage districts, and the state’s own official boards. (Salt Creek Township v. Bridge Co., 51 Kan. 520, 33 Pac. 303; State, ex rel., v. Bradbury, 123 Kan. 495, 256 Pac. 149; State, ex rel., v. Kaw Valley Drainage District, 126 Kan. 43, 267 Pac. 31; State, ex rel., v. Regents of the University, 55 Kan. 389, 401, 40 Pac. 656.)
Counsel for defendants seem to discern an analogy between the case at bar and the one where the purchase of the privately owned waterworks plant which served the city of Topeka and which was covered by a mortgage was purchased by the city pursuant to a popular vote. Included in the contract of purchase was the assumption of the mortgage which the city agreed to pay. (State v. Topeka, 68 Kan. 177, 74 Pac. 647.) Nothing 'is more clear in the statute (R. S. 12-842) than the grant of authority to the city to purchase a privately owned utility serving the city. And it is a matter of common knowledge that such utilities are financed by loans, which the property is pledged to secure; and fractional interests in such a loan, commonly called corporation bonds, occasionally called debentures, are sold to and held by the investing public. And so, if a city decides to purchase the utility which serves it, it will almost invariably follow that the bonded indebtedness, or mortgage indebtedness, on the utility will have to be assumed by the city. The alternative, not ordinarily a just one, would be to ignore the existing utility entirely when its franchise expires, and construct another one.
Another case to which our attention is called is Carleton v. City of Washington, 38 Kan. 726, 17 Pac. 656, where it was held that the city could purchase fire-fighting apparatus and provide payment therefor by issuing warrants payable in the future. The case is easily distinguishable from the one at bar. Protection of a city against fire is a governmental concern; the acquisition of a municipal light plant is the city’s proprietary concern. The case was decided in 1888. Since that time the legislature has enacted various statutes to curb the natural predeliction of city officials to spend money they do not have. (R. S. 15-412; R. S. 1933 Supp. 79-2925 et seq.; id. 10-1101 et seq.) We have not overlooked section 16 of the “cash-basis” act, R. S. 1933 Supp. 10-1116, but hold that the “revenue certificates” which defendants propose to issue to Fairbanks, Morse and Company in this case do not fall within the exemptions therein specified. Touching the scope of R. S. 14-401, the court holds that the grant of powers therein enumerated are governmental; they confer no proprietary powers. The latter are conferred by R. S. 12-842 and other specific statutes of similar import.
Counsel for appellees contend for a liberal construction of the city’s powers in this case because the acquisition of a municipal light plant is the concern of the city in its proprietary capacity, not its governmental capacity. Mayhap there are situations where more liberality of construction of corporate powers may be judicially sanctioned in the one situation rather than the other. But in the case we have to consider, the city’s “proprietary” capacity had to find its authority in some statute, and if) must function in its proprietary capacity in conformity with and not at variance with the mode- the statute prescribes.
In view of this conclusion some features of the contract which are vigorously assailed by plaintiff and as vigorously upheld by the defendants do not require to be scrutinized with judicial particularity at this time.
The judgment is reversed and the cause remanded with instructions to enter judgment in plaintiff’s behalf. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for a declaratory judgment to construe a contract for the sale and purchase of natural gas. Judgment was for defendant. Plaintiff appeals.
The plaintiff is the owner of a number of natural-gas wells in Labette county. Defendant is a distributing company supplying gas to consumers in the city of Parsons and elsewhere. On April 30, 1932, the parties entered into the contract in question. In that contract plaintiff is spoken of as the seller and defendant as buyer. The part of the contract with which we are concerned is as follows:
“Buyer shall no longer be required to take gas when same cannot be delivered in paying quantities and at sufficient pressure to enter buyer’s lines against working pressure therein, and in such case buyer may cancel this contract after sixty days; seller may cancel this contract, however, if average working pressure in the meter through which buyer is taking seller’s gas in buyer’s line shall exceed twenty-four pounds for sixty days; provided, however, that thirty days’ written notice of cancellation shall first be given to one party by the other and the condition allowing cancellation not remedied before expiration of said thirty days, but if buyer shall suffer a loss of market, or for other causes be unable to carry out the intents and purposes of this agreement, then seller shall be released from selling gas to buyer hereunder, providing another market has not been found in ninety days from the time gas is shut off.”
It will be noted that the above provision states how the contract may be terminated by the buyer when the seller does not comply with its terms and the seller may terminate it when the buyer does not comply.
This action grows out of an attempt on the part of the seller to terminate the contract because the buyer kept the pressure in the main at a daily average higher than twenty-four pounds for sixty days.
The petition alleged the existence of the contract; that for a period of sixty days the average working pressure in main line of defendant has been maintained at more than twenty-four pounds; that plaintiff had called this condition to the attention of defendant and the probable cause of it; that no response had been made by defendant to this letter; and that on August 30, 1934, plaintiff gave the defendant the written notice of intention to terminate the contract, as provided for in the paragraph of the contract that has been quoted.
The petition then alleged that although thirty days had elapsed since the notice had been given the defendant had refused to release plaintiff from his obligation, but had threatened to hold plaintiff for damages if he failed to deliver gas and that defendant for more than thirty days, following the delivery of the notice had failed to remedy the condition that allowed cancellation in that it had—
“(a) Failed to materially increase the industrial market for its gas, but on the contrary has increased the number of its domestic consumers.
“(b) Failed to continue to supply gas to the large commercial pipe line to which it was connected at the time the said contract was executed.
“(c) Failed to provide storage reservoirs or other devices for insuring an even, nonfluctuating pressure in its pipe line at a twenty-four pound daily maximum average.
“(d) Failed to dispose of its gas in said pipe line in a steady and continuous volume.
“(e) Failed to so operate its pumps, pipe line and other equipment as to distribute the pressure in its said pipe line over the various hours of the day so as to maintain an even, nonfluctuating pressure of a twenty-four pound daily maximum average.”
The petition then contained the following allegations:
“6. That at the defendant’s request, and to avoid delays of pleading, the plaintiff admits that the daily average working pressure in the defendant’s meter during the period of thirty days next following August 30, 1934, was less than twenty-four pounds, but alleges that such low pressures were due to an extraordinary demand for gas to operate the water pumps of the city of Parsons during the drouth period then prevailing, same constituting an emergency. A table of said pressures for said thirty-day period will be furnished if the defendant so demands.
“7. That a controversy has arisen between the plaintiff and the defendant as to whether or not the said contract has been broken and the plaintiff released therefrom by and on account of the defendant’s failure, during a period of sixty days, to maintain an average working pressure in said meter of not more than twenty-four pounds and its further failure to remedy the condition allowing cancellation within the period specified in said contract.”
The prayer of the petition was for a determination of the rights of the parties. To this petition the defendant demurred on the ground that it did not state a cause of action against defendant. This demurrer was sustained. When the prayer of the petition is considered in connection with the allegations the sustaining of the demurrer amounts to a holding by the trial court that the seller did not have any right to terminate the contract. The question upon which the case turns is, Did the action of the defendant in reducing the pressure in its main during the thirty days immediately following the serving of the notice remedy the condition of which plaintiff complained and which he relied on as a sufficient reason for terminating the contract?
The situation is that the wells of plaintiff are shale gas wells. The gas comes from these wells at a low pressure. When the gas from the wells is turned into the main of defendant if the pressure in the main is greater than that from the well the gas from the well will not flow into the main. The more gas the main is furnishing to consumers the lower the pressure. For this reason plaintiff argues that the lowering of the pressure in the main after the notice was served was not due to anything done by defendant, but was due to the fact that the pumping plant of the city of Parsons required an unusual amount of gas, causing more gas to run through the main, resulting in a lower pressure.
It will be noted that plaintiff pleaded in his petition that defendant had failed to do certain definite things which would have prevented a recurrence of the condition. It is his contention that to remedy the condition meant that some one of the actions set out in his petition should have been taken and that when defendant failed to take one of these steps plaintiff had a right to terminate the contract.
On the other hand, defendant contends that under the contract it had thirty days after the service of the notice to remedy conditions allowing cancellation, that is, the excessive pressure, and when the pressure was kept below twenty-four pounds for thirty days the right of the plaintiff to terminate the contract on account of the excessive pressure ceased.
This contract is in writing and is not ambiguous. The contention of plaintiff if sustained would amount to a holding that the owner of the gas wells could direct the defendant as to how it should conduct its business. The rule is laid down in 13 C. J. 524, as follows:
“The intention of the parties is to be deduced from the language employed by them, and the terms of the contract, where unambiguous, are conclusive, in the absence of averment and proof of mistake, the question being, not what intention existed in the minds of the parties, but what intention is expressed by the language used. When a written contract is clear and unequivocal, its meaning must be determined by its contents alone; and a meaning cannot be given it other than that expressed. Hence words cannot be read into a contract which import an intent wholly unexpressed when the contract was executed. Where the contract evidences care in its preparation, it will be presumed that its words were employed deliberately and with intention.
“It is not the province of the court to alter a contract by construction or to make a new contract for the parties; its duty is confined to the interpretation of the one which they have made for themselves, without regard to its wisdom or folly, as the court cannot supply material stipulations or read into the contract words which it does not contain.
“A contract must be construed as a whole, and the intention of the parties is to be collected from the entire instrument and not from detached portions, it being necessary to consider all of its parts in order to determine the meaning of any particular part as well as of the whole. . . .”
The contract in this case is a great deal like the one considered in Utilities Co. v. Bowersock, 109 Kan. 718, 202 Pac. 92. This was an action over the right of a company owning a power dam to terminate a contract to furnish electric energy to a utilities company. The syllabus of the opinion states the facts and what the court held. It is as follows:
“1. . . . Under a written contract in force since 1909, and which was to extend for twenty-one years unless terminated as provided in the contract, defendants have furnished electric power to plaintiff to be used in the operation of its railway and electric-light plants. A controversy arose between them over a paragraph in the contract which provided in substance:
“ ‘If after the installations as herein provided for are made by the defendants it should be ascertained after careful trial and demonstration that the water power is unsatisfactory or insufficient to operate the mills of defendants and the plants of plaintiff, then this contract shall be abrogated and declared null and void, and in such event a former contract between the same parties, a copy of which is attached hereto, shall be in full force and effect.’
“In the same clause it was provided that in the event it should be found that the water power was unsatisfactory for the successful operation of the plants of both parties tjie plaintiff should have the right to purchase the auxiliary steam or gas plant at its then value.
“Acting under this clause, the defendants served notice in 1919 of their intention to abrogate the contract, when this suit was brought to enjoin such action. The rules that a contract must be construed in its entirety; that where it is not ambiguous, its terms control, and extraneous evidence cannot be resorted to to explain the contract; that where the contract is clear and unambiguous, courts will not resort to the rule of practical interpretation by the conduct of the parties, are applied, and held, (a) There is nothing ambiguous in the contract; (b) The provision for ascertaining after careful trial and demonstration whether the water power was unsatisfactory or insufficient did not refer to a single specific test, or mean that in case such test demonstrated that the power was satisfactory then from that time until the end of the twenty-one-year period defendants were bound to furnish all the energy required by plaintiff; (c) the provision referred to a continuous possibility of the water power proving unsatisfactory or insufficient from any cause at any time, and the provision permitting either party to abrogate the contract continued in force for the purpose of meeting such conditions.” (Syl. ¶[ 1.)
The only condition with which plaintiff is concerned is the pressure in the mains of defendant. Plaintiff argues that the construction that is contended for by defendant will permit it to increase the pressure after the expiration of thirty days. There is no reason why this court should assume that defendant will do this. Plaintiff might have bound defendant to take a stipulated amount of gas from him. Had he done so we would have had a different question here. As it is plaintiff executed the contract sued on. It provides in unambiguous terms as to the manner in which it can be terminated by either party. To sustain the contention of plaintiff would be to read into the contract a provision that by its terms was not intended to be there.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action to recover motor-vehicle fuel tax. The facts were stipulated. Judgment was for plaintiff, and defendant has appealed.
The material facts may be stated as follows: On various dates from September 11, 1932, to April 22, 1933, defendant received motor-vehicle fuel in original containers to the amount of 26,736 gallons, broke the containers, stored the fuel, and later used 24,303 gallons in its motor vehicles on the highways of the state. The remainder was used in such a way as not to be subject to the tax. Defendant made no report to the state oil inspector of the receipt and use of this fuel. No tax was paid thereon to the state oil inspector, and no claim was made for exemption from the tax. On December 13, 1933, plaintiff filed with defendant its itemized, verified claim for the tax of three cents per gallon for the motor-vehicle fuel used on the highways, which claim was disallowed, whereupon this action was filed. No question is raised as to the amount of the judgment if plaintiff is entitled to recover.
Appellant contends the county is not a “dealer” within the mean ing of the statute. The statute in force at the time plaintiff purchased and used the fuel defines the term as follows:
“ ‘Dealers’ means and includes any person or persons, firm, association, or corporation who receives from any source, motor-vehicle fuel in tank cars or other original containers and who unloads or breaks such original containers for the purpose of storing, selling, delivering or using all or any part of motor-vehicle fuel thus received. . . .” (Laws 1929, ch. 287, § 1, [c].)
It will be noted the stipulated facts disclose defendant did everything within the definition of a dealer. It is contended being a county prevents it from being such a dealer. No exception of that kind is written in the statute. “The word 'person’ may be extended to bodies politic and corporate.” (R. S. 77-201, clause 13.) Under a statute similar to our own a city was held to be a dealer in State v. City of Sioux Falls, 60 S. D. 330, 335, 244 N. W. 365, and under a similar statute a county was held to be a “retail dealer” in Crockett, Secy. of State v. Salt Lake County, 72 Utah 337, 341, 270 Pac. 142. We are told the operative interpretation of the motor-vehicle fuel tax law since it was first enacted in this state has been that counties, cities, and other subdivisions of the state were liable for the tax if they handled such fuel in a way to be defined as a dealer. While this operative interpretation is not controlling, it is persuasive. We conclude defendant, under the stipulated facts, was a dealer within the meaning of the statute above quoted. Appellant points out that a dealer is required to procure a license, to make reports, and is subject to criminal liability if these things are not done, and from this argues that the legislature never intended that counties should do those things, or should be subject to criminal prosecution. There is no reason it should not procure a license and make reports if it desires to act as a dealer. We are not here concerned with the criminal liability for failure to comply with those provisions of the statute. This is a civil action for the recovery of tax due.
Appellant next contends that it is a political subdivision of Ü13 state engaged in governmental duties and cannot be required to .pay the motor-vehicle fuel tax because the imposition of such tax would be in contravention of section 1 of article 11 of our constitution, the pertinent portions of which read:
“The legislature shall provide for a uniform and equal rate of assessment and taxation; but all property used exclusively for . . . county . . . purposes, . . . shall be exempted from taxation.”
This provision of our constitution applies exclusively to taxation of property. (City of Newton v. Atchison, 31 Kan. 151, 1 Pac. 288.) The motor-vehicle fuel tax is not a tax on property. The act providing for it “creates no property tax, but is a personal liability upon dealers.” [State, ex rel., v. Snell, 127 Kan. 859, 860, 275 Pac. 209.) The same question has been considered by other courts where the constitutional provisions were similar to our own, and the same conclusion reached in the following cases: Independent School Dist. v. Pfost, 51 Ida. 240, 4 P. 2d 893; City of Louisville v. Cromwell, Treasurer, 233 Ky. 828, 27 S. W. 2d 377; City of Portland v. Kozer et al., 108 Ore. 375, 217 Pac. 833; State v. City of Sioux Falls, supra; Orange State Oil Co. v. Amos, 100 Fla. 884, 130 So. 707; The People v. Deep Rock Oil Corp., 343 Ill. 388, 175 N. E. 572.
See, also, Gregg Dyeing Co. v. Query et al., 166 S. C. 117 [City of Greensville et al. v. Query et al., 166 S. C. 281, 164 S. E. 844), affirmed by the United States supreme court, 286 U. S. 472, 76 L. Ed. 1232.
Under these authorities we are forced to conclude that section 1 of article 11 of our constitution has no application to the motor-vehicle fuel tax.
The question whether the cash-basis law (Laws 1933, ch. 319) has any application in this case was raised early in the trial court, where it was held it did not apply, and is not specially pressed here. The fact that the fuel for which the tax is sought to be recovered was received by the county before May, 1933, and the stipulated facts do not show the cash-basis law was complied with, causes us to notice it. In this connection it is sufficient to say that the statute last cited referred to indebtedness of cities, counties, and other subdivisions of the state, but specifically omitted any reference to the indebtedness or financial affairs of the state itself. We therefore conclude that it has no application to the facts presented by this record.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover half of a dead man’s estate under an alleged oral contract with the deceased made twenty-six years ago.
Plaintiff alleged that in 1907 the late William Walker, of Leavenworth county, made an oral agreement with her that if she would come to his home and serve him as housekeeper and perform the usual duties of a country housewife he would give her half his property at his death.
At that time Walker was a widower, fifty-two years old, with grown children, residing on a farm, and a man of substantial means.
Plaintiff was twenty-two years old, deserted by her husband and divorced, with two small children to support, with no means, and mainly dependent on relatives for subsistence.
At the time the alleged contract was made plaintiff and Walker were total strangers.
Plaintiff’s evidence showed without dispute that in 1907 she entered the Walker household with her two children and performed the usual arduous duties of a farm woman until Walker’s death in 1933. During that interval her children were housed, fed, and educated and reared in the Walker household.
When Walker died, plaintiff first relied on the prospect that he might have made provision for her in his will; next through her attorney she claimed to have been Walker’s common-law wife; but eventually her claim took the form which culminated in this lawsuit — an alleged oral contract that she was to receive half of Walker’s estate when he died.
Plaintiff mustered an array of witnesses who testified to the length, merit, and extent of her services. Some of them gave testimony touching statements they had heard Walker make which showed how much he appreciated her worth. Some of them testified thus:
“He (Walker) said he had things fixed providing well for Mamie to have half of everything he had when he was gone.”
Others testified:
“He had everything fixed and Mamie will always have a home.”
Others testified:
“He said what he had done for Mamie because of her services for him.”
Another witness, son of the plaintiff, testified:
“I heard William Walker tell Mr. Prewitt that he was going fifty-fifty with the boys, with mother, Mamie Trackwell, . . . He said he was going to have it fixed so, he would have it fixed fifty-fifty with the boys with her— with mother.”
It is useless to reiterate more of this sort of testimony. There was no evidence of any specific offer and acceptance of the contract alleged; and our only concern is whether the services rendered and the sort of testimony summarized above is sufficient to prove the making of the alleged contract.
The trial court held otherwise on demurrer, and error is urged on that ruling.
It is settled law in this and other jurisdictions that if an oral contract of the character alleged is performed in whole or in substantial part on one side, it may furnish a basis for specific performance or redress for its breach; but the corollary rule is that such a contract and its specific terms must be proved by clear, convincing and satisfactory evidence. (Dillon v. Gray, 87 Kan. 129, 123 Pac. 878; Bateman v. Franklin, 114 Kan. 183, 217 Pac. 318; Rooney v. McDermott, 121 Kan. 93, 246 Pac. 183; Woltz v. First Trust Co., 135 Kan. 253, 9 P. 2d 665; Heine v. First Trust Co., 141 Kan. 370, 41 P. 2d 767; 58 C. J. 929, 946; 25 R. C. L. 218, 310.)
Can it be said that the evidence was sufficient to meet the exacting standards which must necessarily be imposed on litigants who seek a share of a dead man’s property on an alleged oral contract entitling them thereto? The case in material aspects is like Nash v. Harrington, 110 Kan. 636, 205 Pac. 354, where one of two sisters laid claim to eighty acres under an alleged oral contract between herself and her father that she should receive that property for services which she had fully performed. A plethora of evidence was adduced to show the extent of plaintiff’s services and that she deserved well at her father’s hands. The trial court made elaborate findings of fact, and inferred therefrom that the alleged contract had been proved. We said:
“This court would cheerfully affirm this judgment, for there is no doubt of Johanna’s merits and deserts, but counsel for Agnes have the right to insist, before the judgment against her can stand, that the essentials of a contract between Johanna and her father be first established. This, we confess, baffles us.....
“In the cases where oral contracts for the conveyance of land have been upheld by this court, it will be found that there was evidence tending to prove the primary facts constituting the contract. Once some such evidence was forthcoming, then such testimony as that of the witnesses Casey and Kleinneger, quoted above, would perform the valuable function of reinforcement or corroboration, by showing that the evidence to support the main proposition was true. But the testimony of Casey and Kleinneger (and the other testimony to the same effect) is corroborative of what? Nothing, because of an utter want of the matter of prime importance — some evidence that Johanna and her father made the contract relied on. The evidence to prove the contract need not be direct, but it must, in sum,' be established by clear and satisfactory proof.” (Citations.) (pp. 642, 643.)
Other cases where claimants under alleged oral contracts failed in quality and sufficiency of their proof are cited in Woltz v. First Trust Co., supra, page 261.
And so here. This case failed for want of proof. It is beside the point to expatiate on plaintiff’s merits and deserts for her faithful service to Walker for twenty-six years. The record shows that his sons offered to provide for her generously; but she chose to litigate with them instead, with the result which this court cannot justly disturb.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was a taxpayers’ suit under R. S. 60-1121 to enjoin the city of Eureka and its governing officers from carrying into effect the provisions of a certain ordinance and agreement whereby the city binds itself to issue to Fairbanks, Morse and Company certain written instruments, to be designated “revenue certificates,” payable in sixty monthly installments, with interest, and aggregating the sum of $99,974, which was the agreed price of three Diesel engines and other specified .machinery to provide motive power for a municipal light and power plant which the governing body of the city had determined to constiuct and operate.
Ancillary to the execution of this contract is the proposed execution and sale of $65,000 in bonds voted by the city to provide funds "to erect a building to house the proposed power plant and to construct a distributing system consisting of the usual poles, ’wires, transformers, etc., throughout the city. The regularity of that bond election and the validity of that proposed bond issue are the subject matter of the appeal in a companion case, No. 32,326, decided at this term. •
A comprehensive view of the legal questions raised against the contract and which constitute the crux of this lawsuit will require the circumstances as well as the specific terms of the challenged contract to be stated at some length:
The city of Eureka is a city of the second class. In 1933 its governing body, Troxell, mayor, and Lamb and Hart, commissioners, determined to launch the city into the adventure of municipal ownership and operation of a light and power plant. To that end they planned a complete plant which would cost $164,974, of which amount the sum of $65,000 should be derived from a bond issue to be sanctioned by a popular election, and the balance, $99,974, should be met by an issue of sixty monthly installment certificates payable to the defendant, Fairbanks, Morse and Company, for the purchase of engines and related machinery suitable for generating electricity in the sort of municipal plant to be constructed in Eureka. These proposed certificates were to be paid out of specified revenues of the power plant when constructed and in operation. Whether the foregoing estimated cost, without any further direct or indirect burden on the general taxpayers, would attain the object desired by the defendant city and its officials is not a question of present judicial concern. What does require judicial determination is the legality of the contract as a whole; and if legal in its main aspects, whether it does not transcend the authority of the city or offend against public policy in some of its details.
In the contract with Fairbanks, Morse and Company, the city, in summary, agrees:
(1) To erect a building to house the power machinery and to pay for the common labor, cartage, and materials.
(2) To pay all freight and other charges.
(3) To commence payment of stipulated monthly installments of the pur chase price of the engines and related equipment, $99,974, with interest at six percent per annum, within sixty days after they are delivered, installed and satisfactorily tested, and to continue such payments monthly for five years.
(4) The monthly installments shall be evidenced by sixty “revenue certificates” payable out of the revenues of the plant, and “are not general obligations of the municipality payable out of taxes or its general funds”; but the city agrees to maintain light and power rates which will produce sufficient funds to pay these revenue certificates “so far as it may be permitted to do so by law.”
(5) To pledge the entire proceeds of the plant to the payment of the monthly installments, after deduction of “legitimate and necessary expenses of operation, which shall include the interest and principal of the proposed bond issue of $65,000 as they mature.”
(6) To operate the proposed municipal plant and not dispose of it until all the city’s obligations to Fairbanks, Morse and Company are discharged.
(7) That the title to the engines and related machinery supplied by Fairbanks, Morse and Company shall remain in the vendor, notwithstanding its structural emplacement in the power plant building, until the vendor is paid in full; but meantime the city agrees to pay the taxes on the property and to keep it insured for the benefit of the vendor.
(8) That Fairbanks, Morse and Company shall not be liable for any damages of any character arising from the use of the machinery, but it will replace defective parts within a stated time and upon certain conditions.
(9) That for any delays in the installation of the engines and machinery, caused by the city, it shall pay the company’s engineer $12.50 per day and expenses.
(10) When the engines and machinery are installed, and when the distributing system is constructed out of the proceeds of the proposed $65,000 bond issue, a test of the completed plant is to be made, and the engineer of Fairbanks, -Morse and Company “shall have entire charge thereof . . . During . . . such test the engineer of the company shall be considered to be the agent of the municipality.” If no test is desired by the city or if such test cannot be properly made through any fault of the city, then the guarantees of duty touching the efficiency of the machinery “shall be null and void and the company not bound thereby, and said machinery shall then be considered accepted by the municipality.”
(11) If litigation should arise between the city and the company out of any breach of this contract, notwithstanding any judgment ensuing therefrom “the title to the machinery or materials shall not pass until such revenue certificates so given, or extensions thereof, or such judgment taken, are fully paid in money and satisfied. The company shall have the right to discount or transfer any of said revenue certificates, and the title or right of possession in and to said machinery or materials shall pass thereby to the legal holder of such revenue certificates.
“The said machinery or materials shall be and remain strictly personal property and retain its character as such, no matter whether on permanent foundation or in what manner affixed or attached to any building or structure. or wliat may be the consequences of its being disturbed on such foundation, building or structure, or for what purpose the machinery or materials may be used.”
The contract which the city and Fairbanks, Morse and Company have signed and under which defendants propose to proceed is not precisely the same as it appeared in the ordinance which sanctioned its execution. There has been added thereto the following:
“The amount of any present or future sales or other tax, federal or state, which the manufacturer (seller) now or hereafter shall be required to pay, either on its own behalf or on behalf of the purchaser or otherwise with respect to the material covered by this quotation, shall be added to the prices contained herein and paid by the purchaser in the same manner and to the same effect as if originally added thereto.”
The issues between the litigants were developed by appropriate pleadings; certain stipulations and uncontroverted evidence were adduced to develop all the pertinent facts; and judgment was entered for defendants.
Plaintiffs appeal. They contend that the city had no power to make the contract; if any statute conferred such power, the contract which was made contained an important paragraph not included in the contract terms as they appeared in the city ordinance which was published; that the preliminary estimate of the cost of a municipal plant was a farce; that the contract creates a debt in disregard of the budget law; that the contract unlawfully assumes to control the future action of the city and defendants’ successors in office; that it binds the city to operate the proposed plant for a fixed period when the statute authorizes a city to quit the utility business whenever it chooses to do so; that certain details of the contract touching payment of taxes and insurance on the property of the vendor and relieving it of its common-law liability are against public policy and otherwise void.
On behalf of defendants it is contended that R. S. 12-842 is all the authority the city needs to sanction the contract between Fairbanks, Morse and Company and the city; that the authority to raise funds for the acquisition of the proposed light and power plant, or part of such equipment, is not restricted to the statutory method provided by R. S. 12-843. This question has been considered in a case essentially similar in its controlling aspects to the one at bar, Kansas Power Co. v. Fairbanks, Morse & Co., ante, p. 109, 45 P. 2d 872. It is there held that where a city does not have the money to construct or otherwise acquire a municipal light and power plant, the means provided by the statute R. S. 12-843 is exclusive, and that the ingenious scheme of paying for it by issuing installment obligations, termed “revenue certificates,” payable monthly for the next five years out of expected net revenues of the utility, is wholly unauthorized by law and- cannot have the sanction of judicial approval.
It is needless to repeat here what we have just written in the Glen Elder case. In this case it was stipulated in the contract that it would be called off unless a proposed bond issue which was an essential feature of the project to procure a light and power plant for the city should successfully run the gauntlet of the electorate of Eureka. Necessarily the contract would also have to pass judicial scrutiny. In the companion case having a similar title to the one at bar, No. 32,326, ante, p. 117, 45 P. 2d 877, this day decided, it is held that the bond election was a nullity because of the uncertain and equivocal language of the proposition on the ballot on which the popular vote was taken.
It follows that other features of the contract vigorously assailed by plaintiffs and as valiantly upheld by defendants, with an unusual exemplification of lawyerlike scholarship in the briefs and arguments of counsel for the respective parties, do not require determination at this time.
The judgment of the district court is reversed and the cause remanded with instructions to enter judgment for plaintiffs. | [
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The opinion of the court was delivered by
Thiele, J.:
This was a quiet-title action, and the appeal involves the interpretation of a will.
There is no dispute as to the facts. Jared Browning in his lifetime owned the real estate involved. He died many years ago, leaving a will which was duly admitted to probate and which provided:
“I give to my wife, Emily Browning, all my property, real and personal, to have and to hold as her own, with full power to use, lease, sell or make any other disposition of, that she may desire requiring of her only that she as soon as possible pay all my debts and that she train and educate my children in a proper manner.
“Second. If at the death of my said wife there should remain any of this property or the proceeds of this property, I hereby give to each one of my children, viz.: Esther B. Browning, Evaline Browning and Mary Ann Browning' to each one two ninths (%) of such remaining property and to each one of my wife’s children by a former marriage, viz.: Minnie A. Fix, Ida May Fix and Emily Fultz (formerly Emily Fix) to each one ninth (%) of such remaining property.”
On August 2, 1923, Emily Browning, for a stated consideration of $43.25, granted to Sinclair Pipe Line Company the right to lay, maintain, etc., a pipe line for oil or gas, with appropriate equipment for telegraph and telephone lines, over the real estate in question, with right of ingress and egress for such purposes, and providing for an additional like compensation if a second pipe line be installed alongside the first one. The grantor reserved the right to use the land for any and all purposes except those granted the grantee. There were other provisions which we need not notice. The concluding part reads:
“Thai the terms, conditions and provisions of this contract shall extend to and be binding upon the heirs, executors, administrators, personal representatives, successors and assigns of the parties hereto.”
Under date of October 8, Emily Browning, for a stated consideration of $40, made a further grant of right to construct, etc., a gate box, apparatus and equipment, on a described tract 60 feet square, to be used in connection with the pipe line. There was similar provision as to being binding upon heirs, etc.
Both of the above grants were duly acknowledged before a notary public and were recorded in the office of the register of deeds. Shortly after the grants were made the grantee entered upon the real estate and laid a ten-inch pipe line and constructed the gate box and has ever since maintained them. If there was any uncertainty as to where the pipe line should be laid it was made certain by the laying thereof. About the same time the corporate name of the grantee was changed, and by subsequent action it was again changed to Stanolind Pipe Line Company. About April, 1931, Emily Browning died, and no disposition of the lands having been made, otherwise than as mentioned, an action in partition was brought to divide the real estate among the above-named children or their successors in interest and to quiet the title against certain defendants who were not entitled to participate in the partition of the lands or proceeds of sale thereof. The pipe-line company was not a party to’the action. A sale of the real estate was decreed, and at such sale, in May, 1933, the defendant W. C. Ellis,was the purchaser. Thereafter a question arose as to the rights of plaintiff under the above-mentioned grants, and on August 11, 1933, plaintiff filed an action to quiet its title thereunder. At the trial plaintiff’s counsel stated it was stipulated that plaintiff claimed only whatever right, title or interest it obtained by reason of the execution of the pipe-line right of way and gate-box contract, and disclaimed any other interest in the land or in the fee, and defendant’s counsel then stated: “Leaving only the question in the case for the interpretation of the will — terms of the will — by the court as a matter of law, construction of the terms of the will of Jared Browning” and stating the court could consider the proceedings in the partition suit, and the probate proceedings in the estates of Jared Browning and Emily Browning. Copies of the Jared Browning will, of the Emily Browning grants and of the journal entries in the partition suit were attached to the pleadings. No other evidence was offered. The trial court, after consideration, found generally in favor of the plaintiff and against the defendants, and rendered judgment accordingly. Defendants appeal.
It is contended that any person holding less than the fee-simple estate cannot create an easement beyond the term of his estate (9 R. C. L. 747), and that therefore Emily Browning’s grant ceased at her death, she having only a life estate in the property. In support Davis v. Davis, 121 Kan. 312, 246 Pac. 982, is cited. It was there said that a tenant in tail has a right to lease the entailed property for oil and gas for any term within her own tenure. That, however, is not conclusive here for, as was said in Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P. 2d 463:
“An oil and gas lease is not a lease in the ordinary sense, and conveys no interest in the land, but is merely a license to explore.” (Syl. ¶ 1.)
And cases in support are cited. It was likewise there held that an oil and gas lease is personal property. The nature of the grants here involved will be discussed later.
. Were we to follow the old rule that devise of the fee may not be impaired by a subsequent contradictory provision (McNutt v. McComb, 61 Kan. 25, 58 Pac. 965), we should say that Emily Browning took the fee. The rule in the McNutt case has been qualified, however, by the modern rule that the intention of the testator, as gathered from all parts of the will, must control (Scott v. Gillespie, 103 Kan. 745, 176 Pac. 132). Giving the will an interpretation most favorable to appellant, it would follow, under Greenwalt v. Keller, 75 Kan. 578, 90 Pac. 233; Postlethwaite v. Edson, 98 Kan. 444, 155 Pac. 802; Scott v. Gillespie, supra; Otis v. Otis, 104 Kan. 88, 177 Pac. 520; Markham v. Waterman, 105 Kan. 93, 181 Pac. 621; Mansfield v. Crane, 116 Kan. 2, 225 Pac. 1087; Wilkison v. Wilkison, 330 Kan. 424, 286 Pac. 252, and other cases, that Emily Browning was given a life estate with a power of disposal. (Compare, however, Donohue v. Skinner, 118 Kan. 215, 234 Pac. 1000, and Quinton v. Kendall, 122 Kan. 814, 253 Pac. 600.) And assuming that such is the effect of Jared Browning’s will, let us examine the extent of her power, which was to “use, lease, sell or make any other disposition of.” (Italics ours.)
Although the stipulation would seem to conclude any question about the nature of the grants by Emily Browning to plaintiff, it is also argued that the grants are mere licenses and cannot ripen into easements, and that no period of termination being fixed, they terminated at the death -of the grantor. Neither contention is good.
The difference between a license and an easement is thus defined in 9 R. C. L. 744:
“The difference between an easement and a license is that the former implies an interest in land, while the latter does not. An easement must be created by deed or prescription, while a license may be by parol. The former is a permanent interest in the realty, while the latter is a personal privilege to do some act or series of acts upon the land of another without possessing any estate therein, and is generally revocable at the will of the owner of the land in which it is to be enjoyed, by the death of the licensor, or by his conveyance of the lands to another, or by whatever would deprive him of doing the acts in question or giving permission to others to do them.”
In 2 Tiffany on Real Property (2d ed.) 1202 is the following:
“In so far as an easement involves, as it ordinarily does, the privilege of doing or not doing a certain class of act on or in connection with another’s land, there is a superficial resemblance between an easement and the privilege created by a license. The distinction between such an easement and a license privilege lies primarily in the fact that the licensee has a privilege and nothing more, while the holder of an easement has not only a privilege but also rights against the members of the community in general,, including the owner of the land, that they refrain from interference with the exercise or enjoyment of the privilege.”
It could hardly be claimed that Mrs. Browning in her lifetime could have revoked the grantee’s rights under the grants, or that thereunder any one other than the grantee could have laid pipe lines, or that any other person could have interfered with the grantee’s pipe lines. With respect to railroad right of way, in 22 R. C. L. 852, it is said:
“Land for a railroad right of way may be acquired by a conveyance from the owner as well as by compulsory proceedings, and an agreement with a railroad company for the conveyance of a right of way stands on the same footing as any other contract for the conveyance of land.”
In such view of the law it appears the grants are sufficient to confer a right to lay and maintain the pipe line and construct and maintain the gate box, etc., so long as there is no abandonment. It would appear that in certain instances the failure to use words of inheritance might shorten the grant to a life estate, although that is not universally true (34 A. L. R. 695, Anno.), but in the case before us there is express inclusion of such words. In a somewhat analogous case this court held, in Ranney v. Childs, 96 Kan. 483, 152 Pac. 621:
“A contract expressly made binding upon the heirs and assigns of the parties, by which one of two adjoining owners granted the other a right to the use in common of a stairway, held to run with the land.” (Syl.)
It was not necessary that the grant be for a definite number of years; in fact, it would be unusual for a railroad company, pipeline company or any public utility to take a grant for a stated period in view of our statutes permitting • them to extend their corporate existence. To a large extent their activities are carried on through construction of their distribution systems on lands in which they have easements and not mere licenses. As is said in Washburn’s Easements and Servitudes (4th ed.) 679:
“A right granted by charter to a gas company to lay gas pipes in the streets of a city is an easement, and not a mere license.”
If it be assumed that only licenses were granted, we must still take note of the fact that for a valuable consideration the grantee laid its lines and made its improvements. Even had this been done under an oral arrangement, it would not have been revocable at the pleasure of Mrs. Browning or the holders of the remainders. As was said in Kastner v. Benz, 67 Kan. 486, 73 Pac. 67:
“An oral license to the owner of a two-story building permitting access to his second story by a stairway of an adjoining owner and through a party wall, which was given for a valuable consideration and in reliance upon which the licensee has expended money or labor in altering his own premises to conform to this arrangement, is not revocable.” (Syl.)
We take notice of the fact that this pipe line did not run alone through the Browning lands, but extended between widely separated termini. See, also, Smyre v. Kiowa County, 89 Kan. 664, 132 Pac. 209, where it is held that when a license has been so far executed it would be a fraud on the rights of the licensee to permit revocation, an equitable right arises capable of being transferred to third persons and binding on the licensor and those claiming under him with notice.
To revert to Emily Browning’s power and her exercise thereof, it could be said that Emily Browning sold an interest in the land. The fact it was less than the whole ’fee makes no difference — she could have sold outright any portion of the whole real estate or an undivided interest in all of it. Neither can we ignore her power to make other disposition. Such words were neither redundant nor meaningless (First National Bank v. Paramount Transit Co., 139 Kan. 808, 33 P. 2d 300). If it be said her power to sell contemplated a sale of the entire fee in the whole of Jared Browning’s real estate, we have yet to consider what other disposition she could make, and are of opinion that under this power she was authorized to grant the easements complained of.
Certain other contentions of the appellants need not be separately mentioned. An examination of the record shows the judgment of the trial court was correct, and it is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages growing out of a contract for the establishment of a freight rate.
There is no dispute as to the facts. The petition disclosed that plaintiff operated an oil refinery at Arkansas City, and in July, 1931, it had an opportunity to purchase 368 carloads of crude oil at Oklahoma City, Okla. Although not disclosed fully by the pleadings, it seems conceded that there was a published rate on file with the interstate commerce commission under which it was determinable the rate from Oklahoma City to Arkansas City was ten cents per hundredweight. Before purchasing the oil plaintiff entered into negotiations, partly oral and partly written, with employees of the railway company, as a result of which it is alleged that if plaintiff would purchase the oil and transport it over defendant’s road, the railway company “would immediately file and make effective a rate of six cents (6‡) per cwt. to apply on the transportation of said crude oil from Oklahoma City, Okla., to Arkansas City, Kan., via defendant’s railroad,” etc., the railroad company well knowing plaintiff would not purchase the oil and transport it unless the six-cent rate should be made effective and apply on the transportation. Relying on the agreement, plaintiff purchased the oil and tendered it to defendant for shipment to Arkansas City, and it was so shipped. The agreement seems to have been concluded by a letter from the plaintiff’s traffic manager to the railway company freight agent at Topeka, dated July 15, 1931, in which it was said:
“We have already arranged for shipments Oklahoma City to Arkansas City and beginning today will move ten oars per day, which may shortly be considerably increased.”
The petition alleges that sixteen cars were shipped July 17, 1931, and that thereafter the remainder were tendered and shipped. It appears from one of defendant’s exhibits the shipments were between July 19 and September 26, 1931. The petition further alleged the railway company failed to publish the six-cent rate as agreed, and demanded and collected at the ten-cent rate, and that plaintiff had been damaged in the sum of $9,629.45, as shown by a tabulated list attached to the petition. The abstract does not show details of this list but does show total charge $24,073.57; amount had six-cent rate been applied, $14,444.12; overcharge, $9,629.45. In a second cause of action the allegations of the first cause are included by reference and it is further alleged that in order to mitigate damage the plaintiff shipped the oil to Arkansas City by the cheapest available method, paid the ten-cent rate, and by reason of the failure of the railway company to file the six-cent rate it had been damaged in the amount of $9,629.45.
The defendant answered that the petition failed to state a cause of action, that the court had no jurisdiction of the subject matter, and admitted the material allegations of the petition except as they were denied. It then denied it had failed to publish the rate or to cause the same to become effective or that it had failed to take any steps to that end, but alleged that following the usual and customary course of procedure, which was well known to plaintiff, it did, on July 15, 1931, request F. A. Leland, its duly authorized tariff agent and the duly authorized agent of the southwestern railroads, being all the railroads operating in Oklahoma, to submit an emergency proposal for the rate and the filing of a tariff covering the same with the interstate commerce commission; that Leland submitted the proposal to the southwestern railroads and to interested chambers of commerce and shippers for approval, which approval was refused, and thereafter the proposal was submitted to the executive committee of the southwestern railroads for approval, which was refused; that on August 5 Leland notified the southwestern railroads of the defendant’s intention to independently establish the six-cent rate, and notice of his intention was by Leland issued August 31, 1931, announcing the publication of the six-cent rate; that the rate was published in Supplement 36, SWL Tariff 79-L, Agent J. E. Johansen’s I. C. C. 2170, under special permission of the interstate commerce commission, the supplement bearing issuing date of October 6,1931, and effective date of November 17,1931; that from the time of the first conversation as to the rate until the issuance and publication of August 31, 1931, there was no delay. It is also alleged that an application to the interstate commerce commission for reparation to the shipper was made by defendant, the application, being denied. There is also an allegation that on July 1,1933, the plaintiff filed an action before the interstate commerce commission for reparation in the amount of $9,629.45, which was still pending.
Plaintiff moved to strike that part of the answer in which defendant gave the history of its efforts to get the six-cent rate promulgated, and that part setting up plaintiff’s action before the interstate commerce commission. Upon hearing, the court sustained the motion. At the same time the parties agreed that motion for judgment on the pleadings could be presented, which was done, and upon consideration the court found the answer did not state facts sufficient to constitute a defense; that the defendant’s answer admitted the contract and the failure of the defendant to perform the conditions imposed in the contract and the amount of the damages, and judgment was accordingly rendered in favor of plaintiff, from which the defendant appeals, assigning as error the sustaining of the motion and the rendering of the judgment.
As has been noted, there is no dispute as to the facts, and it is possible to dispose of the case on its merits, and without discussion separately of the motion to strike and the motion for judgment on the pleadings. The appellant’s principal contention is that a railroad cannot be held legally liable for its failure to carry out an agreement to have put into effect in the future a lesser rate than was lawfully in effect at the time of the promise and at the time the shipments were moved. Appellee’s answer is that its action is not a rate case nor for reparation, but is one for failure of performance of the contract to file and publish a rate and not violative of any statute.
In substance, the alleged contract was that if plaintiff would buy oil and ship it over defendant’s lines, defendant would immediately file and make effective a lower rate than was in effect. The facts are that plaintiff bought the oil and within two days started shipments which were concluded in thirty-eight days, or a period of forty days after the contract was made. Whatever may have been the reason, the defendant in that time did not make effective the lower rate. Plaintiff paid the higher rate and seeks to recover the difference between the two rates.
The allegations of the petition and the facts show that this was a shipment in interstate commerce, and therefore that the rates to be charged for transportation are governed by the provisions of the interstate commerce act (U. S. C. A., Title 49), the principal objects of which were to secure just and reasonable charges for transportation, to prohibit unjust discriminations and to prevent undue and unreasonable preferences. As was said in Louisville & N. R. Co. v. U. S., 282 U. S. 740, 51 S. Ct. 297, 75 L. Ed. 672:
“The legislative history of the interstate commerce act shows clearly that the evil of discrimination was the principal thing aimed at.” (p. 749.)
Section 1, paragraph (1), of the act makes its provisions apply to transportation of property by railroad from one state to another. Section 6, paragraph (1), requires every carrier to file with the commission and to keep open to public inspection schedules showing all rates and charges for transportation between points on its own lines. Section 6, paragraph (3), provides in part:
“No change shall be made in the rates, fares and charges or joint rates, fares and charges which have been filed and published by any common carrier in compliance with the requirements of this section, except after thirty days’ notice to the commission and to the public published as aforesaid, which shall plainly state the changes proposed to be made in the schedule then in force and the time when the changed rates, fares, or charges will go into effect; and the proposed changes shall be shown by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection: Provided, That the commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting and filing of tariffs, either in particular instances or by a general order applicable to special or peculiar circumstances or conditions.”
And section 6, paragraph (7), provides:
“No carrier, unless otherwise provided by this chapter, shall engage or participate in the transportation of passengers or property, as defined in this chapter, unless the rates, fares and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this chapter; nor shall any carrier charge or demand or collect or receive a greater or less or different compensation for such transportation of passengers or property or for any service in connection therewith, between the points named in such tariffs than the rates, fares and charges which are specified in the tariff filed and in effect at the time; nor shall any earner refund or remit in any manner or by any device any portion of the rates, fares and charges so specified, nor extend to any shipper or person any privileges or facilities in the transportation of passengers or property, except such as are specified in such tariffs.”
Section 6, paragraph (10), prescribes heavy penalties for violation of any order made by the commission with respect to rates.
Under the above section, from which only parts have been referred to or quoted, it has been held repeatedly that an express contract by an interstate carrier to carry for less than the schedule rate is void and will not preclude it from demanding or recovering the proper schedule rates. (See cases cited in U. S. C. A., Tit. 49, sec. 6, par. 7, notes of decisions No. 1, p. 286.)
Appellee argues that the present, contract does not offend; that the contract was not to obtain a preference on its part, but was an agreement on the part of defendant that it would immediately file the lower rate, which when so filed would be available to all shippers of a like article; that it was possible, had the defendant proceeded properly and had it not consulted other railroads and chambers of commerce, for it to have had the rate in effect within two or three days. This argument ignores features of the interstate commerce act of which it had to take notice, one that, except as the interstate commerce commission might waive it, thirty days’ notice is required before an altered rate may become effective. Another is that the shipper knew that whether the rate would be changed was solely within the power and jurisdiction of that commission and that the railway company could do no more than honestly endeavor to have the new rate lawfully established. The argument also ignores an obvious thing. Notwithstanding the agreement was to file the rate immediately, it was well known to both parties to the agreement that an application had to be prepared, it had to move from Kansas to Washington, D. C., it had to be filed, and it had to receive attention from those in authority, before even the thirty-day notice could be, if it ever was to be, waived, and, assuming its waiver, an appropriate order had then to be made. “Immediately” does not mean instantly, but, most favorably to plaintiff, without delay. We cannot say how soon, without delay, a lower rate could be made legally effective, but we can say that in view of statutory requirements, distances and other elements inherent in the matter that when in two days plaintiff commenced shipments, defendant had not had time to file the new schedule, and plaintiff knew it. Plaintiff also was bound to take notice of the statute that, unless notice was waived, a new rate would not be established in less than thirty days.
Appellant argues that under the interstate commerce act the published rate of ten cents was the legal rate; that no change could be made except after thirty days’ notice to the commission and to the public; that until such change had been lawfully made it could not, without incurring penalty, demand or receive any other rate than the published rate, and that any attempted agreement to the contrary was void.
There are many decisions dealing with various phases of rate regulation under the interstate commerce act. Many of these are cited in an annotation on “Carrier’s right or liability in respect of excess of lawful charge over charge understated where discrimination is forbidden” (83 A. L. R. 245). See, also, note in 38 L. R. A., n. s., 351.
Armour Packing Co. v. United States, 209 U. S. 56, 28 S. Ct. 428, 52 L. Ed. 681, was an appeal from a conviction under the Elkins act for carrying goods at less than published rates. It was there said:
“It is said that if the carrier saw fit to change the published rate by contract the effect will be to make the rate available to all other shippers. But the law is not limited to giving equal rates by indirect and uncertain methods. It has provided for the establishing of one rate, to be filed as provided, subject to change as provided, and that rate to be while in force the only legal rate. Any other construction of the statute opens the doors to the possibility of the very abuses of unequal rates which it was the design of the statute to prohibit and punish.” (p. 81.)
Railway Co. v. Albers, 79 Kan. 59, 99 Pac. 819, involved the liability of a carrier which had been garnisheed to refund an excess between a claimed promulgated rate and a contract rate, where collection had been made at the higher rate. For a full statement-reference is made to the opinion. The trial court allowed recovery and this court affirmed the judgment. On appeal to the United States Supreme Court the judgment was reversed in Kansas City So. Ry. v. Albers Comm. Co., 223 U. S. 573, 32 S. Ct. 316, 56 L. Ed. 556, where, in discussing the validity of the agreement to transport at a stipulated rate, it was said:
“We are thus brought to the question of the validity of that agreement. Not only did it contemplate a departure from the established local rates for the benefit of a single shipper, but no schedule embracing the rates agreed upon was filed with the interstate commerce commission. Section 6 of the interstate commerce act, as it existed at the time, laid upon every carrier subject to the provisions of the act the duty of filing with the commission and publishing schedules of the rates to be charged for the transportation of property over its road, provided for changing and superseding such rates by new schedules so filed and published, and made it unlawful for such a carrier to depart from any rate so established and in force at the time. . . . The chief purpose of the act was to secure uniformity of treatment to all, to suppress unjust discriminations and undue preferences, and to prevent special and secret agreements, in respect of rates for interstate transportation, and to that end to require that such rates be established in a manner calculated to give them publicity, to make them inflexible while in force, and to cause them to be unalterable save in the mode prescribed. . . . To avoid any misapprehension in respect of the character of the liability sought to be enforced in this case, we deem it well to repeat that there was no claim of any right to reparation or damages under the interstate commerce act, and no claim that the rate collected was unreasonable, preferential, discriminatory, or otherwise violative of that act, but only an attempt to enforce a supposed liability for a breach of the special agreement. (See Texas and Pacific Railway v. Abilene Cotton Oil Co., 204 U. S. 426, 51 L. Ed. 553, 27 Sup. Ct. Rep. 350, 9 A. & E. Ann. Cas. 1075; Robinson v. Baltimore & Ohio Railroad Co., 222 U. S. 506, ante, 288, 32 Sup. Ct. Rep. 114.)” (pp. 596-598.)
In Louisville & Nash. R. R. v. Maxwell, 237 U. S. 94, 35 S. Ct. 494, 59 L. Ed. 853, L. R. A. 1915E 665, the facts were that Maxwell, after repeated interviews with the railroad company as to the passenger fare from Nashville, Tenn., to Salt Lake City, Utah, purchased tickets at a stipulated rate, for a stipulated route, which it developed was below the published rate. In the opinion allowing the company recovery of the difference between the amount collected and the published rates, the court said:
“Under the interstate commerce act the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it, unless it is found by the commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by congress in the regulation of interstate commerce in order to prevent unjust discrimination.” (p. 97.)
York and Whitney were commission merchants who accepted delivery of perishable merchandise and paid the freight charges thereon as demanded, sold the goods, and on the basis of freight paid, settled with the shippers. It developed that less than the lawful rate had been collected. The railroad brought suit in the state court to collect a deficit between the amount paid and the amount due under the published rate. The case ultimately reached the United States Supreme Court. In disposing of the appeal (N. Y. Cent. R. R. v. York & Whitney Co., 256 U. S. 406, 41 S. Ct. 509, 65 L. Ed. 1016) it was said:
“The transaction between the parties amounted to an assumption by the consignee to pay the only lawful rate it had the right to pay or the carrier the right to charge. The consignee could not escape the liability imposed by law through any contract with the carrier.” (p. 408.)
In Prince Line Limited v. American Paper Exports, Inc., 45 F. 2d 242, reference is made to 49 U. S. C. A. (sec. 6, par. 7), and it is there said:
“Construing this provision of the interstate commerce act, the courts have held that the rate of the carrier duly filed is the only lawful charge, and that deviation from it is not permissible upon any pretext, and that no contract of the carrier can reduce the amount legally payable, and that no act or omission of the carrier can estop or preclude it from enforcing payment of the full amount by a person liable therefor, and that, though the rule may work hardships in some cases, it embodies the policy which has been adopted by congress in the regulation of interstate commerce in order to prevent unjust discrimination. (Louisville & N. R. Co. v. Central Iron & Coal Co., 265 U. S. 59, 65, 44 S. Ct. 441, 68 L. Ed. 900; Louisville & N. R. Co. v. Maxwell, 237 U. S. 94, 97, 35 S. Ct. 494, 59 L. Ed. 853, L. R. A. 1915E, 665.)”
While none of the above cases deals with a situation identical with that .presented in the case at bar, it appears that the rule is that the legal rights existing between a shipper and a carrier as to rates in interstate commerce are measured by the tariffs or rates published and on file with the interstate commerce commission; that no deviations from such published rates can be made on any pretext, and an agreement the purport of which is to permit collection of charges at other than the published rates is of no binding-force or effect. And the decisions of this court have recognized such to be the rule. (Railway Co. v. Refining Co., 83 Kan. 732, 112 Pac. 604; Schenberger v. Railroad Co., 84 Kan. 79, 113 Pac. 433; Railway Co. v. Wagner, 102 Kan. 817, 172 Pac. 519; Case v. Union Pac. Rld. Co., 119 Kan. 706, 241 Pac. 693; Parker Corn Co. v. Chicago B. & Q. Rld. Co., 120 Kan. 484, 244 Pac. 240.)
In Railway Co. v. Stannard & Co., 99 Kan. 720, 162 Pac. 1176, it was held:
“All special arrangements, agreements, customs and understandings between individual shippers and interstate railroads, not open to all similar shippers on equal terms, nor on file with the interstate commerce commission nor sanctioned by that tribunal, are void, and a defense to an action for interstate freight charges based thereon is subject to demurrer or motion for judgment.” (Syl. ¶ 3.)
A situation somewhat similar to the one which confronts us was involved in Oregon-Wash. R. & N. Co. v. Cascade C. Co., 101 Or. 582, 197 Pac. 1085. That case had many elements not in the instant case, but it does appear that the contract company applied to the carrier for a lower rate on shipments of rock, and the carrier advised the shipper that it would establish such a rate, but the rate was not filed until long after the shipments were made. In disposing of a suit to collect balances due, the court said:
“In other words, the plaintiff seems to have neglected to file the amended rate, and the defendant, without waiting for its promulgation, shipped the rock and hence became liable for the freight as computed under the schedule of tariff in force at the time the shipment moved. The defendant was bound to know the existing tariff. It was charged with knowledge that the plaintiff could not charge less or more than, or any rate different from that prescribed in the current schedule. It is fair to say that in seeking to protect its promise, but, as it appears, when it was too late, the record shows that the plaintiff applied to the Interstate Commerce Commission for leave to refund to the defendant the difference of $1,394.39, but was refused by the commission on the ground that this would constitute a preference not allowed by the interstate commerce law or the tariff in force at the time. This is clearly within the policy of the law, for any other shipper of stone would have a right to rely upon the published tariff in force at the time, and ought not to be subject to the preference that would arise out of refunding to the defendant a portion of the freight which it paid under the existing tariff, although it relied upon the promise of the plaintiff to promulgate a lower rate. In other words, the defendant paid the rate in force at the time, and must be bound thereby. The record does not show any legal ground for a counterclaim on behalf of the defendant in that matter.” (p. 590.)
Answering appellee’s argument that had the defendant filed the lowered rate immediately, meaning by that within a few days, it would have been available to all shippers, that might be true, but it bought the particular oil with the idea in mind it would be transported at the' lower rate. We do not intend to cast any aspersions on the good faith of the plaintiff, but conceivably it may have purchased the oil on "a more favorable basis because the seller knew it would, according to the published tariff, cost ten cents per hundredweight to move it to Arkansas City, and knew nothing about any agreements between plaintiff and defendant to the contrary. Good faith and laudable motive or the converse thereof do not enter into the matter, however. The purpose of the interstate commerce act is to prevent discrimination or preference, and the decisions are uniformly to the effect that published rates cannot be modified by contract, and that under no pretext can the carrier exact less nor more than the published' and effective rate. Had appellee desired so to do it could have waited until the rate was effective. It could not immediately start shipments and, under the guise of collecting damages, in effect get the benefit of a rate not then available to the public- at large. The converse of the proposition shows its correctness. Suppose the situation had been somewhat reversed, and for reasons sufficient to it the refining company had agreed to pay a twelve-cent rate instead of the published ten-cent rate, and upon completion of the shipment and demand for payment had refused to pay any but the published rate. Under the many decisions of the federal and state courts, could it be contended the railway company could recover the difference? We think not.
Appellee raises a question of pleading: That a defense that a contract is in violation of the interstate commerce law of the United States must be pleaded, and that there is no such allegation in defendant’s answer. It is true that in Railway Co. v. Bagley, 60 Kan. 424, 56 Pac. 759, we so held. A similar question was raised in Sagre v. Oil Country Specialists Mfg. Co., 138 Kan. 501, 27 P. 2d 542, and it was there held that when it becomes apparent a contract sued on is in violation of law, it is the duty of the court to dismiss the action whether the illegality has been raised by the pleadings or not. (See the cases cited in that opinion.) Perhaps the defendant could have pleaded more definitely, but it did allege that .the allegations of plaintiff’s petition did not state a cause of action, and, if we should adhere strictly to the rule in the Bagley case, that allegation would probably be sufficient. If it be assumed that the general rule required the defendant to plead specifically the illegality, we should not hesitate to make an exception, where otherwise the result would be to permit a recovery based on a void and illegal contract.
As we view the matter, the trial court ruled correctly on the motion to strike, because the reasons why the defendant did not more promptly proceed to carry out the alleged agreement were immaterial. So far as the plaintiff’s action before the interstate commerce commission is concerned, we need not here discuss whether or not it constituted an election of remedies, for, on the undisputed facts, we hold the plaintiff was not entitled to recover.
The judgment of the trial court is reversed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was a suit for cancellation of an eighty-acre tract of an original oil and gas lease of 400 acres.
A demurrer Was sustained to plaintiffs’ evidence. Plaintiffs appeal from this ruling and also rely on reversible error growing out of alleged misconduct of the trial court. The pertinent facts are: On the first day of February, 1927, Louis Cowman and Lucy Cowman, his wife, executed and delivered to J. W. Harwood a lease for oil and gas purposes, covering a total of 400 acres, 240 acres of which are located in section 11, and 160 acres of which are located in section 12, all in the same township and range, in Marion county. Material portions of the lease contract are:
“It is agreed that this lease shall remain in force for a term of five years from this date, and as long thereafter as the lessee produces oil and gas, or either of them, from said land or the premises are being developed or operated.
“If no well be commenced on said land on or before the 1st day of February, 1928, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor’s credit in the First National Bank at Herington, Kan., or its successors, which shall continue as the depository regardless of changes in the ownership of said land, the sum of four hundred and no/100 dollars, which shall operate as a rental and cover the privilege of deferring the commencement of a well twelve months from said date. In like manner and upon like payment or tenders the commencement of a well may be further deferred for like period or the same number of months successively.
“If the estate of either party hereto is assigned, and the privilege of assigning in whole or in part is expressly allowed, the covenants hereof shall extend to their heirs, executors, administrators, successors or assigns, . . .
. . and it is hereby agreed in the event this lease shall be assigned as to a part or as to parts of the above-described lands and the assignee or assignees of such part or parts shall fail or make default in the payment of the proportionate part of the rents due from him or them, such default shall not operate to defeat or affect this lease insofar as it covers a part or parts of said lands upon which the said lessee or any assignee thereof shall make due payment of said rentals.”
The lease held by J. W. Harwood covered the northwest quarter of section 12, which section lies to the east of section 11, and the southeast quarter and the east half of the southwest quarter of section 11. By assignments, appellee, Phillips Petroleum Company, became the owner of the west half of the southeast quarter of section 11, on September 30, 1930. This is the eighty in controversy. Harwood remained the owner of the eighty to the west and the eighty to the east of the Phillips eighty. Appellants have beén at all times and are now the owners of all land covered by the lease.
The first drilling on the original 400-acre tract was done in 1927. It was in the southwest quarter of the northwest quarter of section 12. This drilling resulted in a dry hole. The dry hole is a little over a quarter mile northeast from the east line of the eighty acres in controversy. Appellants’ witness testified so far as he knew the quarter section in section 12 on which the dry hole had been drilled was released to the Cowmans. This left 240 acres of the basic lease. They were the three eighty-acre tracts above described. There has been no development on the eighty east of the eighty in question. There are four producing wells on the Harwood eighty to the west of the Phillips eighty. Appellants had received royalties in the sum of $5,701.23. The royalty to August 31, 1934, was $3,576.28, and $2,125 since September 1, 1934. This suit for cancellation was filed December 21, 1934. No wells had been drilled on the eighty acres in question at that time. On the Harwood eighty to the west of the Phillips eighty, the first well was drilled in December, 1930. It was a producing well and was drilled along the west line and in the northwest corner. In May, 1934, well number two was drilled one location south of well number one. The initial production from that well was 282 barrels per day. Following the drilling of that well and on August 1, 1934, Louis Cowman wrote defendant requesting a release of the eighty acres in question on the ground that the lease had expired. On September 10, 1934, Cowman's attorney wrote defendant requesting a release, stating his client contended the lease had expired and he desired to have it released, inasmuch as it encumbered the title to his land. Appellee answered each of these letters on August 3 and September 13, respectively, acknowledging the letters requesting cancellation on the ground that the lease had expired, and stated that the lease on this eighty had not expired because it was held by production on other parts of the basic lease.
On August 22, 1934, Harwood completed well number three, one location south of well number two. This was also a producing well. On February 10, 1935, Harwood completed well number four, directly east of his well number two, and about one location from the west line of the Phillips eighty in question. On February 15, 1935, appellee attempted to drill a well on its eighty east of well number four on the Harwood eighty. Three days later and on February 18, 1935, appellants obtained a restraining order preventing appellee from proceeding with the drilling of this well. The trial court, on motion of appellee and after a hearing, dissolved the restraining order on the same day it was granted.
During the trial of the case on its merits in March, 1935, appellants’ witness, Creek, testified that he was the production superintendent of the Harwood Oil Company, and that he was familiar with the Lost Springs,.Marion county, oil area; that he had drilled various wells in that area beginning in 1926; that he had drilled for the appellee’s company in 1928, and that to his knowledge appellee had not drilled any other well in that field since 1928. The evidence further showed that with few exceptions there was no drilling in this area between 1930 and 1934.
It will be observed requests for release were not made upon the ground rentals had not been paid nor upon the ground appellee had violated the implied covenant to develop. The letters contained no request in the alternative, that is, to develop or release. The letters constituted request for cancellation solely on the ground that the lease had expired.
Appellants now contend they are entitled to cancellation because the term of the lease had expired and there had been no development of the eighty in question. They say the term of the lease was five years. It was apparently upon this theory that they requested a release. Where an oil and gas lease is for a definite fixed period only, it does expire by its own terms at the end of the fixed period. (Cement Co. v. Brick & Tile Co., 100 Kan. 547, 164 Pac. 1087.)
The lease in the instant case is not for a definite fixed period only. One of its provisions is that the lease shall terminate if lessee does not commence a well on or before February 1, 1928. A well was completed on June 8, 1927. That meets this requirement. If no well was drilled by date fixed the lease provided for annual rental payments. Rentals were paid on the basic lease till production started.
The other provision as to duration of lease is:
“This lease shall remain in force for a term of five years from this date and as long thereafter as the lessee produces oil and gas or either of them from said land or the premises are being developed or operated.”
Appellants do not admit that the entire lease may be considered as a unit, but they say that in order to reach the correct rule to be applied in this case it may be assumed that the lease on both the Phillips eighty and the Harwood eighty are held by the same party. They are adjoining eighties under the same basic lease. There has been substantial development and production on the basic lease. The first well was in the northwest quarter of section 12. It was a dry hole and the lease on that quarter was released. This left three eighties joining each other in the south half of section 11. A producing well was drilled on the west eighty in 1930. This was before the five-year term expired. Total production on the west eighty had resulted in royalties to appellants in the sum of $5,701.23. Appellants accepted royalties from the time of completion of the first well in 19.30 to August 31, 1934, in the sum of $3,576.28. The requests to release were dated August 1, and September 10, 1934. No well had been drilled on the Phillips eighty. No request or demand had been made on appellee to develop. There is no indication that appellants, prior to requests to release, had 'construed the lease on the Phillips eighty as having expired. The five-year term alone expired February 1, 1932. Appellants then made no request for release of this eighty. If appellants thought that at the end of five years appellee had forfeited its right to drill by reason of failure to develop before the end of the five-year period, it was their duty to promptly assert the forfeiture. Forfeitures must be promptly asserted. If not asserted they are waived. (Bloom v. Rugh, 98 Kan. 589, 593, 160 Pac. 1135; Brinkman v. Empire Gas and Fuel Co., 120 Kan. 602, 608, 245 Pac. 107.) The tendency has long been to frown on forfeitures where the rights of the parties insisting thereon can otherwise be adequately protected. (Bloom v. Rugh, supra. See cases therein cited.)
As heretofore stated no notice or request was ever made on appellee to drill on the Phillips eighty. This is a suit in equity. This court long ago held: '
“Ordinarily, when unnecessary delay becomes apparent, the lessor ought to call upon the lessee, or party holding under him, to do the things required under the lease, and to wait a reasonable time for such party to act.” (Howerton v. Gas Co., 81 Kan. 553, 564, 106 Pac. 47.)
The principle that courts of equity may give opportunity for and require development before resort is had to the more drastic action of forfeiture has been frequently announced. (Alford v. Dennis, 102 Kan. 403, 170 Pac. 1005; Brown v. Oil Co., 114 Kan. 166, 217 Pac. 286; Webb v. Croft, 120 Kan. 654, 244 Pac. 1033; Howerton v. Gas Co., 82 Kan. 367, 108 Pac. 813.)
In the case of Alford v. Dennis this court considered a lease on two tracts of land, 716 acres and 220 acres, respectively. The lease was executed in 1902 for a term of ten years, and as much longer as gas or oil might be found in paying quantities. The tracts were about two miles apart. The larger tract was developed and many wells were drilled thereon, but in nearly fourteen years nothing was done towards drilling or developing the smaller tract. No demand was made on the lessee to drill on plaintiff’s tract prior to the commencement of the action. Under those circumstances this court said:
“Held, that the ordinary rule that equity will not relieve against an improvident bargain prevents an absolute forfeiture, that equity will not forfeit a contract for the mere breach of one of its implied covenants; but held, also, that the petition stated a cause of action for some redress, either in damages, if such be ascertainable, or in the alternative that the lessees be required to drill and develop plaintiff’s land within a reasonable time pursuant to their implied covenant, under penalty of forfeiture, following the doctrine announced in the fourth paragraph of the syllabus of Howerton v. Gas Co., 82 Kan. 367, 108 Pac. 813.” (Syl. fl 3.)
Where there has been production on a part of the basic lease within the fixed term, lessor is not necessarily entitled to a release at the end of the fixed term as to some other portion of the basic lease which has not been developed. In Mills-Willingham, Law of Oil and Gas, page 118, the rule is stated thus:
“The finding or producing of oil or gas, during the fixed term, in accordance with the provisions of the lease, is a condition precedent to the right to hold or produce from the land after the expiration of the fixed term. Such finding or producing of oil or gas during the fixed term, however, extends the lease after the expiration of the fixed term as long as that condition shall continue. And, on the principle of the indivisibility of the lease contract, where the lease covers several tracts of land, although they may have passed into the ownership of different parties since the execution of the lease, a producing well drilled upon any of the tracts, during the term, will extend the fixed term as to the other tracts. And this is true although the lease upon the different tracts has come to be owned by different parties and there is no privity of interest between the lessee, who drilled the producing well, and the owners of the lease upon the other tracts. But, of course, under such circumstances the different tracts could not be held indefinitely by production upon one tract without violating the implied covenant for development.” (See cases cited in footnote.)
In Summers on Oil & Gas; page 296, the author makes the following statement of the rule:
“Ordinarily, to extend a lease beyond the fixed term by production, the oil or gas must be produced from the demised land. Where, however, a number of landowners demise their lands in a single lease, the courts hold that the lessee may extend the lease for all of the various tracts beyond the exploratory period by satisfactory production from one tract; or where the lease is of a single tract, but a part of it later assigned by the lessee, production within the exploratory period on the assigned portion will extend the lease as to the unassigned lands.” (See cases cited in the footnote.)
Appellants insist they had an absolute right to cancellation at the end of the term February 1, 1932. This contention entirely ignores the remaining term provision of the lease, to wit: “And as long thereafter as the lease produces oil and gas, or either of them, from said land or the premises are being developed or operated.” There was development of the basic lease, and it was being operated. Furthermore, this is an equitable action. Appellant’s contention ignores the fact they had received substantial royalties and continued to accept them for several years after the fixed five-year period had expired and that they made no request or demand on appellee to develop. They waited until drilling activity again began and then insisted upon cancellation. Appellants’ contention ignores the fact that appellee had attempted to drill and was prevented from doing so by appellants.
Appellants further contend courts of equity make a distinction between cases where the fixed term of years has expired and where it has not. It is true, this is one of the important factors to be considered. It is, however, not the only factor nor necessarily the controlling factor in each particular case. Equity will give whatever relief the facts warrant. (Hardy v. LaDow, 72 Kan. 174, 83 Pac. 401.)
Much stress is laid on the case of Nigh v. Haas, 139 Kan. 307, 31 P. 2d 28. Analysis of that case discloses the term of the lease was for five years and as much longer as ' oil or gas should be produced in paying quantities. Nothing had been done toward developing the portion of the lease there in question for almost ten years. Lessors made demands for development. The demands were refused. Those are not the facts here. In the Nigh'case this court called attention to another important distinction in cancellation cases which is pertinent here. In the Nigh case the court said:
“The distinction between the cases cited and this one is that in those cases the lessees were seeking to defeat cancellation and asking an opportunity to drill. Here the lessees have had the opportunity to drill for fifteen years and have not seen fit to do so.” (p. 311.)
In the instant case no demand had been made to develop and appellee is asking an opportunity to drill.
It is further contended appellee’s answer to appellants’ request for release made demand for development futile. Such conclusion does not necessarily follow. Appellants’ contention as reflected by the letters for release was clearly that the lease had terminated and clouded appellants’ title. With this legal conclusion appellee did not agree. Let us assume, without deciding, that appellee was wrong. Still it does not follow that if appellants had demanded appellee develop the leasé or release it, that appellee would not have developed.
Appellants now contend appellee is required to develop under the implied covenants of the lease. When appellee attempted to develop it was restrained by court order obtained by appellants. It is urged that appellee commenced drilling after suit was filed for cancellation. The petition was the first specific complaint about appellee’s failure to develop. If we assume appellant’s suit was a complaint of failure to develop as well as a request for cancellation, a court of equity could still give appellee an opportunity to develop before it decreed cancellation. Appellee attempted to drill an offset well on its lease to well number four on the Harwood lease within a few days after the well on the Harwood lease had been completed. It was restrained from drilling the well by appellants. The record of what transpired at that hearing is not before us. The trial court dissolved the restraining order after application for dissolution and hearing. We must therefore assume the trial court believed appellee was in good faith in its request to be permitted to test and develop the premises. In the light of all the circumstances in this case we find no error in the judgment denying cancellation. Should such development not progress properly appellants will not be without adequate and prompt relief.
It is urged the trial court abused its discretion -and erred in refusing counsel for appellants to be heard upon the question of demand which-they say was injected into the case by the trial court after the evidence was introduced and after the cause had been argued upon other issues, and was not a ground of the demurrer to the evidence.
Appellee demurred on the ground the evidence did not establish a cause of action for cancellation. This challenged every element of the evidence.
We have carefully examined the record relative to the charge that the court refused to hear counsel on the subject of demand. Counsel is always entitled to a fair opportunity to be heard. This was the second hearing in this case. We do not have before us the record, including contentions of the parties during the first hearing. Under the circumstances this court would not be justified in remanding the case for retrial.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an original proceeding in mandamus brought by the state .of Kansas, on the relation of the attorney general, against the mayor, board of commissioners and city clerk of the city of Hutchinson, to compel the city commissioners of the city of Hutchinson to submit to the voters of the city the question of the adoption or rejection of an ordinance granting the Hutchinson Gas Company, a Kansas corporation, a franchise to furnish gas and operate a gas distributing system in the city of Hutchinson for a period of twenty years from the date of the ordinance, August 5, 1932. This action was commenced after the mayor and commissioners had held the many petitions filed were insufficient under the laws of the state to require the submitting of the matter to the electors of the city. An alternative writ was issued and a return was made to it by the respondents.
The .matter was first considered by this court for the purpose of determining the questions of law raised on the pleadings, and the decision is reported in 137 Kan. 231, 19 P. 2d 714. The court at that time stated in the early part of the opinion the matters involved as follows:
'‘Plaintiffs contended that the petitions were sufficient and made application to this court for a writ compelling the city commissioners to submit the question on the ordinance to a vote of the electors, and an alternative writ was allowed. The parties are proceeding on the theory that the alternative writ and return, including the records and unquestioned facts, are sufficient to raise the legal questions which divide the parties, namely, the sufficiency of the petitions to require the submission of the question to a vote of the electors.” (p. 232.)
The court, upon full consideration of the pleadings and the exhibits, held the determination of the mayor and the board of commissioners as to the sufficiency or insufficiency of the petitions for calling an election to vote-upon the approval or rejection of the ordinance granting the franchise was binding upon the parties to the action and conclusive upon the courts unless the commission was actuated by fraud or was guilty of some misconduct amounting to fraud in making its decision. ■
The alternative writ alleged intentional delays, fraud and misconduct in many ways on the part.of the respondents. The questions of law being submitted on the pleadings and exhibits, the question of fraud could not at that time be determined, although it was at issue by the denial of the respondents.
The decision in the case rendered March 11, 1933, as expressed in the syllabus, is as follows:
“When the mayor and commissioners of a city who have passed an ordinance granting a franchise to a corporation to furnish gas to the inhabitants of the city, and a petition of the electors of the city is presented to the commission asking that an election be called on the question of the adoption or rejection of the ordinance, the commission has the function of determining whether the required number of legal electors have signed the petition, and its determination is binding upon the parties and conclusive upon the courts unless it is shown that the commission was actuated in its decision by fraud or some misconduct which is the substantial equivalent of fraud.
“The allegations in the alternative writ examined and held to be sufficient to raise the issue of fraud in the refusal of the city commissioners to approve the petition presented and to call the election requested by the petitioning electors.” (Syl. ¶¶1, 2.)
The court appointed a commissioner to hear the testimony as to fraud and misconduct amounting to fraud and to make findings and conclusions of law thereon. This has been done, and the commissioner made nineteen findings of fact giving a detailed history of the conduct of the officers of the city in connection with the matter involved, finding that the mayor and a majority of the city commissioners acted in good faith, were not arbitrary, were not actuated by any ulterior motives or hope of reward, and were not guilty of bad faith, fraud or corruption. The commissioner made four conclusions of law based upon these findings, holding the conduct of the officers of the city in making the decision as to the insufficiency of the petitions for an election was not fraudulent and was not actuated by fraud, ulterior motives or other misconduct the substantial equivalent of fraud.
The relator has filed exceptions to three of the findings and to each of the four conclusions of law, and also a motion for judgment on the findings. The respondents have filed a motion to confirm the report of the commissioner.
The first exception taken by the relator to the findings of the commissioner is to the following language in finding No. 9: “but their withdrawal petitions did not enter into the calculations subsequently made by the city clerk and city attorney,” for the reason that such finding is contrary to finding No. 11 and because the evidence of the city clerk shows the withdrawals did enter into the calculation. Finding No. 11 gives the substance of a resolution offered at the meeting of the city commission on October 7, 1932, which contained some figures as to the number of voters duly registered that- had signed the petition, but the same finding shows the report of the city clerk immediately thereafter stating “that he -had not checked the petitions and withdrawals to completion.” The evidence of the city clerk referred to does show some withdrawals, but the qualifying statements of the city clerk are emphatic that such was only a preliminary working sheet. The checking was not complete before the meeting on October 7. The letter of the city attorney to the city clerk which the clerk adopted as his report to the commission on October 14,1932, contains the following sentence:
“I have not considered the withdrawals because without considering them, the petitions are nevertheless insufficient.”
The part of finding No. 9 to which exception is taken is well supported by evidence.
The second exception is to the following language in finding No. 17:
“. . . the mayor and two of the commissioners did not act arbitrarily but on the contrary they were sincere in their belief that their conclusion was correct.”
The third exception is to finding No. 18 as a whole. This finding concerns the delay in reaching a decision upon the question of the sufficiency of the petitions during the sixty-day period, waiting for the possible filing of other petitions, and the further delay of one week from October 7 to October 14 for the city clerk to make his report to the commission. Tile first delay was found not to be by any arbitrary conduct on the part of the respondents, and the further delay of one week for the city clerk to complete his report was found to be not unreasonable, subject to criticism, or prejudicial. We think both these findings, to which the second and third exceptions are directed, are supported by substantial evidence and should stand.
The exceptions to the four conclusions of law are briefed and argued together, and with them the relator argues the following two propositions of law:
“(1) Can. the city commission reject legal petitions and its action in rejecting such petitions be conclusive and not subject to review by the courts except upon proof of fraud or arbitrary conduct or misconduct amounting to fraud?
“(2) Did the city commission reject legal petitions?”
The contention of the relator is that failure of the city commission to consider certain petitions amounted to fraud and that the rejection of certain petitions by the city commission by applying to them certain improper requirements was arbitrary and likewise amounted to fraud. Attorneys representing the relator well and ably argue their theory of the rules applicable to the determination of requirements to be observed in making and filing petitions for an election on a franchise ordinance. But is that the question here reserved for consideration and referred to the commissioner? Possibly it may be, if it amounts to fraud, as that was the only matter left undetermined in the decision heretofore rendered herein, and the only matter on which the commissioner was directed to make findings and conclusions.
If the city commission was wrongly advised as to the requirements of petitions filed for calling an election on a franchise ordinance and acted thereon differently from what others might find and conclude was the correct and legal way, is that fraud or arbitrary conduct substantially equivalent to fraud? We think not. Fraud is not to be presumed; it is to be proved. Relator’s strong argument is that following the wrong course, making unnecessary requirements as to the validity and sufficiency of petitions, is fraudulent. Of course, if done arbitrarily and deliberately for the purpose of delay and to defeat the project it might easily be fraud. But the commissioner has found .otherwise, and the fact that the commission did pursue a wrong course — if it did — and followed the requirements of other statutes not appropriate, if they were-not the proper ones to be applied, will not of itself make the acts of the commission fraudulent.
No one understands better than the attorneys for the relator in this case, as shown by the allegations contained in the alternative writ, the absolute necessity of allegations and proof of the elements of the fraud complained of, upon which the relator relies, especially an element in addition to applying the wrong státute and erroneously excluding petitions otherwise valid containing names that should have been counted and considered as praying for an election, when they loaded their alternative writ with the following and similar allegations:
“That the said mayor and board of commissioners of the city did arbitrarily . . . fail, neglect and refuse to approve said petitions and the signatures thereto. . . . that said city commissioners without legal cause or excuse, and acting arbitrarily and not in good faith, did unlawfully throw out ... all of which acts on the part of said mayor and board of commissioners were and are arbitrary, wrongful, illegal and oppressive, were not done in good faith, and constituted a wrong and injury to said qualified electors. . . . that the said mayor and the majority of the city commissioners of the city of Hutchinson, Kan., acting together and for the purpose of aiding the Hutchinson Gas Company, a corporation, the grantee of said franchise ordinance No. 2,190, at that time refused to act on said petition or to determine the legality and sufficiency thereof, until after the sixty days’ intervening time provided by law had passed by . . .”
The commissioner found that none of these allegations of bad faith, arbitrary conduct and unreasonable delay had been proved, and made his findings and conclusions accordingly, and we hold that such elements of fraud or misconduct substantially equivalent to fraud have not been established by the evidence in the case, and we therefore overrule the motion of the relator for judgment on the findings and confirm the report of the commissioner.
The writ is denied.
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The opinion of the court was delivered by
Smith, J.:
This is an original action in quo warranto to oust the defendant from the office of city commissioner. The defend ant was suspended from office shortly after the action was begun. A commissioner was appointed to hear and determine the issues. This commissioner found the facts in favor of the defendant. Plaintiff has moved for judgment of ouster notwithstanding the report of the commissioner.
In actions where this court has appointed a commissioner to hear-evidence and determine issues of fact, it is the duty of the court to examine the whole record and reach its own conclusion as to the facts. (See State, ex rel., v. Duncan, 134 Kan. 85, 4 P. 2d 443.) In that respect this action differs from one that is tried in district court and appealed on a question of fact. With that rule in mind we have examined this record.
The first cause of action in the petition charges defendant with using his influence and vote in awarding a contract for the paving of a street in the city and with receiving $365 from the contractor in payment therefor. The contractor, one Fry, was a witness for the state. He testified he was .a friend of defendant and helped him get into office; that shortly after his term started defendant asked him how he could make some extra money. He testified that after the petition for the paving in question was circulated there was a conference at his house at which it was agreed that the profit on the binder used in paving the street was to be split three ways, that is, between defendant, the witness Fry and one Ashford, the city engineer. He testified further that the contract was awarded to him; that his profit on the binder was about $1,100; that he drew a check for $726 and some odd cents from the bank payable to a man in Kansas City; that he cashed the check and paid defendant $365 and paid Ashford $360. On cross-examination he testified that he had not been promised any immunity for testifying and that he had fallen out with defendant about the award of another contract for paving which was not awarded to him.
Ashford was the next-witness for the state. He was city engineer. It was his duty to prepare the plans and estimates for paving and to supervise the construction. He testified that he did not remember going to Fry’s house before the contract was let, but after it was let Fry called him up; he went down to his house; and that defendant and his wife came there; witness, defendant and Fry all went upstairs to Fry’s office. At this point the testimony of this witness becomes confused. He was asked to state the conversation that occurred there among the three. He answered that he did not think he could do that. Counsel for the state then started to cross-examine him with reference to a statement he had signed. Over the objection of defendant this was permitted. He then claimed immunity and whs advised if he claimed immunity and then was forced to testify he could not be prosecuted on account of anything about which he should testify. The net result was he testified that Fry agreed that if he would take the place of Fry’s brother Dick while he was in the hospital Fry would pay him one third of the profit on the binder. Witness testified that Fry might have said that he would divide the profit three ways. Witness testified that Fry said he was going to give him a third and was going to give defendant a third, but he would not say that defendant was there when Fry said this. Witness testified that he swore to the following affidavit:
“Charles H. Ashford, being first duly sworn, upon his oath says: That I am a resident of Iola, Allen county, Kansas; that. I am, at the present time, and have been during all of the times referred to in this affidavit, the duly appointed and qualified city engineer of the city of Iola, Kan.; that as a part of my duties as city engineer I prepare the plans and specifications in connection with the construction and reconstruction of the paving on the streets of said city; that in May, 1933, and prior to the letting of the contract to R. D. Fry, or the Iola Construction Company, which is one and the same, for the resurfacing of Chestnut street between the north line of Madison to the south line of Monroe, J. D. Buchanan, R. D. Fry and myself met down at the Iola Button Factory in the afternoon and agreed that we would meet down at R. D. Fry’s house at 7:30 that evening to determine the amount of profit in the job and the amount that would be paid to J. D. Buchanan and myself as a pay-off for giving our assistance in obtaining the contract for the Iola Construction Company.”
He testified that the affidavit was true except that the time of the meeting at Fry’s house was after the contract was let instead of before. He testified that the job did not hold up very well because gravel rather than crushed rock was used in the binder. The gravel was cheaper. He further testified that he received $360 from Fry. On cross-examination he testified that he told the county attorney the date in the affidavit was wrong, but the county attorney did not change it. He testified that the only thing discussed while defendant was present was whether gravel or crushed rock would be used in the binder. Reluctantly and after being asked three or four times Ashford finally testified that he was not sure, but to the best of his recollection defendant was gone when Fry told him he was going to give him a third. On redirect examination he repeated that he told the county attorney that the affidavit should have stated the meeting at Fry’s house took place after the contract was let rather than before; and that what Fry was doing at the meeting was figuring the difference in the cost between gravel and crushed rock and that it was not unusual for a contractor to figure the cost of materials after the contract had been let. On recross-examination he testified that át the time of the county attorney’s inquisition he was promised immunity and was told if he did not come clean it would be too bad, but no strong-arm methods were used. In response to questions by the commissioner he testified that he received the money from Fry for working for his brother; and defendant never told him anything about receiving money from Fry; that at the meeting in Fry’s home Fry did not figure any costs; that he had prepared the estimates for the job; and that he had talked to defendant about it first. In redirect examination he testified that he told defendant what he had put in the statement to the attorney general and what defendant told him could not be repeated in the presence of ladies; and that defendant told him he was a fine fellow to be telling what was not true.
Jesse C. Benson testified that he was cashier of the bank; that July 7, 1933, the account of Fry showed a check drawn payable to Wm. R. Martin for $726.50; that he kept books for Fry and that at the time of writing the check Fry mentioned that he needed the money with which to pay for some equipment.
Mr. Hobart, the mayor of the city, testified that when the resurfacing of the street in question was first brought up it was turned down because some property owners on the street in question were in arrears in taxes; that after defendant became finance commissioner he stated that people were ringing his telephone off the .wall asking about it, but that no one called him, and that defendant took office in April, 1933, and defendant and Bartlett voted to have the street resurfaced in May.
For the defense, Mr. Bartlett, the utility commissioner, testified that he voted to pave the street after defendant became finance commissioner; that the contract was let to Fry, who was the lowest bidder; and that the job did not hold up very well, since it broke along the edges.
The defendant testified he was well acquainted with Fry; that Fry advised him not to run for commissioner because he could not be elected; that when the paving contract in question came up he and Bartlett voted for it and the mayor voted against it. He was present at a meeting at Fry’s house after the contract had been let. He testified that he and his wife were walking to his button factory to do some work and that when he came to Fry’s house he saw Ashford in there playing the piano; that he just “hollered” in and Fry came to the door and wanted them to come in. Fry then had them all three go upstairs and Ashford started figuring- quantities on the paving job. Fry mentioned using gravel as an aggregate and witness told him it would be all right but there should be a test run on it. He denied ever receiving any money from Fry. On cross-examination he testified he had known Fry for fourteen years and that the relationship was friendly until a few months previous. He did not know whether Fry supported him for office or not. After Fry heard that witness was going to be a candidate he visited •defendant at his place of business often — before that he had hardly ever visited him. They never discussed the paving in question at the office. Sometime after the contract was let he talked to witness about the use of gravel as an aggregate. The only reason witness talked to him was that he was a commissioner. Defendant never did think that any one commissioner was elected to any particular department. Bartlett was in charge of the department of the city government that had to do with paving. After he was elected he could not say how many times he visited with Fry at his house and at Fry’s house. He remembered Fry calling him up numerous times at noon to talk about the paving. At the time of the meeting at Fry’s house he was not there more than fifteen minutes and Fry and Ashford were figuring quantities. Nothing was asked in his presence about profits on the job. Mrs. Buchanan corroborated the testimony of her husband about how they happened to be at Fry’s house and about how long they stayed.
In rebuttal Fry testified that when he drew the $726.50 out of the bank he told Benson that it was sugar money.
It will be seen that there was testimony on both sides of the question of fact to be determined in this cause of action. The commissioner reviewed the interest that Fry had in the outcome of the action and his animus toward defendant and concluded that defendant should not be found guilty unless the testimony of other witnesses and the facts and circumstances corroborated the testimony of Fry. He also recited the testimony of Ashford about as it has be.en given here and concluded it was entitled to about the same credence as that of Fry. He found for the defendant on the issue of fact.
We hold that what was said in the case of State, ex rel., v. Carl, 120 Kan. 733, 245 Pac. 150, is in point here. In that case several witnesses had testified at the attorney general’s inquisition in a manner very damaging to the defendant. When they took the stand before the commissioner they told a different story. They were cross-examined about the statement and the commissioner based part of his findings on what was in the statements that were used on the motion to suspend. This court in effect approved this and said:
“Many other witnesses were called by the attorney general and gave testimony to the same general effect, but when they were placed upon the witness stand before Commissioner Cunningham, some of them, and particularly Fowler, were unwilling to give the same sort of testimony they had given at the attorney general’s inquisition and which was used in support of the state’s motion to suspend the defendant on September 17. However, the justices’ dockets, the files and the testimony of many of the persons who had been subjected to arrest and who had paid heavy sums as costs without conviction or plea of guilty and the requisite jail sentence and imprisonment attaching thereto, were examined by the commissioner, and the following is his partial summary of the facts:” (p. 739.)
The commissioner reports that when Ashford was put on the witness stand his face was blanched, his lips were trembling and he appeared to be under a great nervous strain. Well might this be true! He was about to endeavor to escape the effect of a statement formerly given under oath and at the same time to avoid committing perjury — always a difficult feat. Better men than he have tried it and failed. He had made a clean-cut statement to the county attorney and attorney general. This statement corroborates the testimony of Fry about the agreement as to the split of the profits and about the meeting being before the contract was let. He had told defendant about the statement and defendant had taken him to task about it in a blasphemous way. His testimony as it appears in the record is a typical example of a reluctant witness being made to testify. The first question of any importance asked him was to tell the conversation that took place there in the upstairs of Fry’s house. He answered that he did not think he could do that, meaning that he could not remember. He must have given a statement of this conversation to the officers at the inquisition. It is apparent that at the outset he was taking refuge in that haven for reluctant witnesses, a poor memory. Then he had received the idea somewhere that if it should appear that the conversation between the three occurred after the contract was let it would lessen the seriousness of its effect on defendant. Accordingly we see his palpable effort to establish the fact that he told the officers at the inquisition that the conversation took place after the contract was let rather than before, as appears in the statement. No good reason appears why officers would thus misquote a witness. Then when pressed to say that only he and Fry were in the room when the talk occurred about a split, the question was asked three times without an answer and then he said, “Well, I am not sure, but to the best of my recollection, he was gone when Bob told me he was going to give me a third.” Clearly, here is a witness afraid to commit perjury and unwilling to tell the truth. Clearly, his every effort at the hearing before the commissioner was bent toward shielding defendant. As to his testimony about the conversation taking place after the contract was let rather than before, the fact is that the circumstance of the engineer and Fry figuring on the cost of different materials, which all parties agree they were doing, tends to corroborate the facts as contained in the statement made by Ashford to the attorney general rather than his testimony before the commissioner.
In cases where a public officer is accused of taking a bribe there are few witnesses, for obvious reasons. Circumstances, however slight, must be relied on and weighed for what they are worth. Thus, we have here, beyond a doubt, the check for $726.50 being withdrawn from the bank immediately after the job was finished and the payment of $360 to Ashford, which no one seems to doubt. This becomes important to us when we see that the money paid to Ashford, plus the money alleged to have been paid defendant, was just two thirds of the alleged profits. Nor can we overlook the fact that money was all drawn out of the bank on a check payable to a man in Kansas City, 'Mo., just the sort of transaction that would be used to cover up payment to local people in a questionable transaction. This court is not impressed, as the commissioner was, with the fact that there had been no prosecutions growing out of this transaction. While the question of whether the public would be better served by a criminal prosecution of state’s witnesses than by an ouster suit is one usually for the exercise of the judgment of the officers, it may be said that if the prosecution of witnesses was concluded to be the better service to the public very few public officers would fear ouster. One more circumstance which tends to corroborate Fry is the fact that there appears to have been a very good reason for the paving in question being turned down by the city commission when it was composed of Mayor Hobart, Commissioner Bartlett and one other. As soon as defendant became a member the project was undertaken, and while defendant stated that people living on the street to be paved were ringing his phone off the wall the mayor did not receive a call. Taking all the facts and circumstances into consideration, this court cannot agree with the commissioner that defendant did not enter into an oral agreement with R. D. Fry to use his influence and vote in his official capacity to secure from the city for Fry a contract for resurfacing the pavement on a part of Chestnut street, and did not use his influence and vote for such purpose and did not receive from Fry any money for securing any such contract, but on the contrary this court concludes that the finding should be 'that the defendant did do those things.
The second cause of action charges that defendant solicited and accepted a bribe in connection with the purchase of fire equipment.
While there is evidence to support this cause of action it is not as persuasive as that which supports causes of action 1, 3 and 5, and if this were the only charge against the defendant the evidence standing alone would hardly justify the ouster. Since a ruling on the cause of action will not affect the ultimate result in this case we shall not detail the evidence concerning it.
The third cause of action charges defendant accepted money in connection with a purchase of gas pipe to be used in the gas mains of the city.
Fry testified he had some conversations with defendant about January of 1934; that the purchase was to be about $10,000; that defendant asked how much he should get out of it, and was told about twelve or fifteen hundred dollars; that a few days later defendant told him he thought he could make a deal with John Krupp; and that Fry told him he should deal with a more reputable firm who would protect him and its own reputation. He further testified that defendant later told him he had closed the deal and was getting $785 out of it. He testified that a few days later when he was at defendant’s office Krupp came in; Krupp and defendant went to the back end of the building and in a minute defendant came back and said he had $300 of Krupp’s money, and that witness saw the money but did not count it. At another conversation defendant told Fry he was sending the money to his mother and she was sending it to his brother and he was checking it out from there. On cross-examination he testified that the office where Krupp came to see the defendant is in a bigger building, and when he said they went out behind he meant they went out of the office and they were gone fifteen or twenty minutes.
Ernie Barnes testified that he worked for the Krupp Junk Company in March, 1934; that he was employed because Krupp sold some pipe to the city; that his duties were cutting pipe; that he heard a conversation between Krupp and defendant in the summer .sometime; and that the conversation was as follows:
“A. Buchanan came in the office and said, ‘John, I believe they have got the goods on us.’
“Q. Well, just go ahead and tell what was said. A. John said, ‘Don’t let them scare you.’ Buchanan laughed and said, ‘No, I will take care of that.’
“Q. And did you hear any further conversation there at that time? A. No, sir.”
Some time after defendant was suspended Barnes heard another conversation between Krupp and defendant. It was as follows:
‘‘A. Mr. Buchanan said, ‘If one man talks, we’re sunk!’
“Q. Well, what was the whole conversation there that you heard? A. That was what I heard.
“Q. Well, did John reply anything to that? A. No, sir.”
He testified further that John Nelson inspected the pipe for the city, and at Krupp’s order he hauled out to the job some pipe that had been rejected by the inspector. On cross-examination he testified that he worked for Krupp in February of 1935, but at that time he had trouble with him and quit; that the first time he told the story about the conversations was to the county attorney about a week before the hearing at which he was testifying; and that he told about it because Krupp gave him a dirty deal. On redirect examination he testified that all the time he was working there he kept still to protect his job. On recross-examination he testified that he went to a lawyer’s office with a fellow named Fat Hamilton and told the lawyer the story, and the lawyer sent him to the county attorney; that defendant had nothing to do with his hauling the rejected pipe; that Nelson was not there all the time.
Mr. Shanahan, the city clerk, testified that there was nothing in the minutes of the city commission pertaining to the purchase of pipe; and that the amount of pipe purchased was $10,887.81. On cross-examination he testified there was a purchase order written out before the pipe was purchased and signed C. M. Thompson. In response to questions by the commissioner he testified that Thompson was a city employee known as a purchasing agent, and there is no ordinance covering his office and that the city of lola operates three utilities — gas, water and electricity — and Thompson does the purchasing for all of them; and that Thompson was employed for twenty years before defendant became commissioner. On redirect examination he testified that practically all the purchases are 0. K.’d by the finance commissioner; that he was not sure who approved this order; that on the larger items they were usually taken up by the commission; and this purchase was very much the exception; and that it was the usual practice for the finance commissioner to approve all purchases.
The testimony of Mayor Hobart was that the city was to re-lay the gas mains as a federal project to help out the unemployed; that Bartlett and defendant said they had word from Sonken-Galamba Corporation in Kansas City that they had taken over a refinery in Oklahoma and. they had a lot of used pipe that they claimed was as good as new; that they wanted him to go along to inspect the pipe, but he said he did not know anything about pipe and thought he knew as much as they did so went along; that they came back and said they had found a lot of second-hand pipe that was as good as new and the firm which owned it had to have an answer by 6 o’clock that night; that he objected to the rush when they were paying 26 cents for this pipe and could buy new pipe for 26.9 cents a foot; that at the time of that conversation he told them that Fred Denton at Arkansas City had some used pipe which he wanted to sell, and they said there would be no use in looking at it; that the next thing he heard about the pipe was when the requisition came through; that he said he thought they ought to wait for a regular meeting, but they stated it was not necessary; that the pipe started to an’ive in a few days and he suggested they get a competent man to inspect it; that Bartlett suggested Ashford, but that Hobart did not think he was competent and suggested Nelson, and he was employed; that Nelson was on the job two or three weeks (it took all summer and way into the fall to complete the job); and that after Nelson quit, Ashford, the engineer, who had charge of laying the pipe, inspected it. He testified on cross-examination that the commission had Thompson write the companies for prices on new pipe-; that Bartlett and defendant reported that the pipe at Arkansas City was junk; that he does not know when Nelson quit the inspection job; that Nelson has been reemployed by the city commission. In answer to questions by the commissioner he testified that most of the pipe bought was 3-inch pipe; that the price of new pipe was 26.9 cents a foot in double lengths; that double lengths are about twice as long as ordinary and would require about half the welding; that the pipe purchased was single; that a little of it was double strength; and that he signed the warrants and approved the claims when he knew the city was paying within nine tenths of a cent of what new pipe would cost. On redirect examination he testified that he knew when the commissioners were down in Oklahoma that Krupp had something to do with the selling of this pipe. On recross-examination he testified that all he knew about the pipe being single or double strength was what somebody had told him.
Fred Denton testified that the pipe he offered the city was 6-inch standard 20-pound pipe; that there are different grades of 6-inch and 3-inch pipe; that he never heard of double-strength pipe. In response to questions by the commissioner he testified that he did not quote any prices on reconditioned 3-inch or 2-inch pipe; and that he figured 35 to 50 percent off for used pipe.
Ashford testified he had known Krupp for several years; that Krupp told him he was going to put in a bid for the pipe and if there was anything he could do to help him he would appreciate it. He further testified as follows:
“He .(Krupp) did not tell me lie was going to pay me anything. I. might have made the statement at the inquisition that John Krupp told me beforehand, ‘If you feel like you can have any influence with Buchanan, I would like to sell them some pipe and I will make it right with you.’ He didn’t mention any name at all. After that John Krupp paid me around $100 at different times. I don’t think he paid me over $10 or $15 at one time. After talking with Krupp, I told Buchanan and Bartlett.that that was good pipe.”
F. J. Horton testified that he had been engaged in the oil and gas business for about fifty years; that after the purchase of the pipe by the city he inquired as to the price of 3-inch standard iron pipe; that from his experience he is familiar with the price of used pipe in Iola; that he thought the fair value was from 10 to 15 cents a foot; that he had a quotation of from 17^ to 20 cents on 6-inch pipe; that the value of 6-inch reconditioned pipe at that time in Iola was anywhere from 15 to 25 cents a- foot, depending on the condition. On cross-examination he testified that the value of used pipe depends on its condition; that he thought the price paid by the city was exorbitant; that his son-in-law had been defeated for commissioner by defendant.
Bartlett, for the defendant, testified that the pipe bought by the city was just as good as new pipe; the provision about the city being the sole judge of the pipe was written into the purchase order at the suggestion of Bartlett and defendant; that when the pipe first began to come in defendant was in the hospital and Nelson was appointed to inspect the pipe at the suggestion of Hobart; that about two or three weeks afterwards it was reported to him that Nelson got too much to drink and went home, and that he had nothing to do with discharging Nelson. On cross-examination he testified that the pipe was purchased in order to repair the gas distributing system on account of the leakage; when they looked at the pipe in Oklahoma they did not perform any tests; it did not show any pits; that they just walked along and looked at it; that Ashford, defendant, Krupp and his representative from Kansas City went with him to Oklahoma to look at the pipe; that he is charged with the duty of maintaining the gas mains of the city and wanted good .pipe; that Nelson tapped the pipe and sounded it and threw the rejected pieces to one side; he did not discharge Nelson, he probably worked eighteen to twenty days; that he did tell Mayor Hobart that an answer had to be made by 6 o’clock the evening of their return.
The defendant testified that the city was asked to sponsor a CWA project and thought of renewing some of the gas mains; that the commissioners looked at the pipe at the refinery in Oklahoma; that they found 3-inch and 6-inch pipe all on overhead lines and there was quite an amount of it in stock there; that it did not look as though it had ever been used for anything; that the pipe at Arkansas City was stacked in several piles in a muddy field and they could not look at it; the reason they were anxious to get the pipe as early as possible was that it was a CWA project and they wanted to get as many men to work as quickly as possible; that after they came back from inspecting the pipe in Oklahoma they told Hobart about it, and he said, “if you and Mr. Bartlett think the pipe at Boynton is a good buy I have absolutely no objection;” that Hobart suggested that they had better call the city attorney and find out if it should go over to a-regular meeting; and he did call Mr. Apt and he said a contract was not necessary; and they all agreed it was not necessary that the purchase should go over to a regular meeting; and Apt said to write on the purchase order that the city was to be the sole judge of the condition of the pipe; that shortly after the purchase order was signed he went to the hospital and when he came back Nelson was in charge of inspecting the pipe; that he told Hobart if he was satisfied with Nelson’s ability it was all right with him; that Nelson stayed on the job until election day; that he did not think Nelson was discharged; that the chief of police told him he was called over to the Hobart garage and found Nelson drunk, and that it was the last day he worked; that after that Ashford inspected the pipe; that he never told Fry that Krupp paid him any money and Krupp never paid him any. On cross-examination he testified that Krupp submitted a bid of 46% cents on 6-inch pipe, 26 cents on 3-inch pipe and 7 to 7% cents on 2-inch pipe, all used. The bids on new pipe were 26.9 on 3-inch and between 65 and 66 on 6-inch. After the bids were opened Silverman, the representative of Krupp, from Kansas City, told the commission what they had in Oklahoma and wanted the whole commission to go down and look at the pipe; that he went down with the others; that he did not see the inside of this pipe; when he came back he saw Hobart, but did not tell him they had to close the deal before 6 o’clock that night; that he could not say that the pipe looked at was the pipe finally purchased; that he never did talk to Fry about this deal and at that time there had not been any unfriendliness between them. On redirect examination he denied that he ever had any such conversation as testified to by Barnes; that the pipe bought was a second weight heavier than standard pipe; that he had some of the pipe weighed because Bartlett was a candidate at the election and the people were telling that he had paid practically new prices for old pipe.
J. B. Kirk testified that he had experience in buying all kinds of pipe. He examined the purchase order and said that it was a splendid contract for the city; that whether or not the city would get good pipe would depend on the inspector; that it is generally conceded that pipe that is used in an oil field is better than pipe that is used in a gas field; that there is very little relationship between the price of new pipe and used pipe; that the market price of used pipe is governed almost wholly by the law of supply and demand; that he had purchased old pipe when he could have .gone out and bought a lighter new pipe for the money; that his judgment was that the price paid for the pipe by the city was a fair price. He testified on cross-examination that if you were permitted to make a rigid inspection there would be very little difference in the price; that by rigid examination he meant a very close examination with calipers; that if the pipe had been used around a refinery it might make a difference in the condition of the pipe; that one would have to see the pipe to estimate the value of it. In response to questions of the commissioner he testified he had actually seen used pipe go above the price of new pipe. On redirect examination he testified that heavier pipe in the city of Iola would be a decided advantage because of the fact that due to the smelters in the city the pipe deteriorates fast. On recross-examination he testified that the pressure used on pipe would not have a tendency to wear the pipe.
Krupp testified that he paid 18 cents a foot for the 3-inch pipe and sold 28,000 feet of it to the city for 26 cents; that he bought the 6-inch pipe for 25 cents a foot and sold 8,000 feet of it to the city for 46% cents a foot; that he’ lost $12 on the 2-inch pipe that he sold the city; that he made about $2,500 on the deal; that he figured his expense for hauling the pipe to Iola was about five or six hundred dollars; that he gave the city engineer about $100.
Mrs. Krupp testified that she was never in the office of the Krupp yard when Ernie Barnes, her husband and defendant had any conversation.
Krupp testified that he had expense with the pipe; that he had to plain end it, clean it and string it; and that he never paid defendant any money whatever.
In response to questions by the commissioner he testified that the pipe delivered to the city of Iola was tubing weighing 8% pounds per foot; that it was second-grade pipe; that he had a man working in his office by the name of Ernie Barnes; that he never had a conversation with defendant in the presence of Barnes; that he never paid defendant any money at all, but that he paid Ashford $100; that he paid Ashford because when Nelson was no longer on as inspector the pipe got so congested that he told Ashford that if he would work Sundays and all the spare time he had he would pay him for his trouble; that he was paying the engineer whose duty it was to represent the city for inspecting this pipe; that he could see nothing wrong with that; that he never promised Ashford anything if he got the contract. On redirect examination he testified that most of the pipe was not inspected when Nelson quit.
John Nelson testified that he was employed to inspect pipe used in relaying the gas main; that along in March he understood Krupp to say “that finishes the order” and he thought he was done; that it was necessary to take a gunnysack and wipe the dirt and oil off the outside of the pipe and swab it out; that before this was done it was impossible to catch all the defects; that Krupp told him that he would call him when the pipe arrived, but he did not call him. On cross-examination he testified that he did not know defendant when he started working for the city; Ashford hired him to work for the city; that nobody told him any specifications except that Shanahan told him what was on the bottom of the purchase order; that the city was the sole judge; that he turned the pipe down that was not smooth and satisfactory to him and that on election night he had been drinking and the chief of police came and took him home.
In response to questions by the commissioner he testified that the still tubes that he was inspecting weighed more than 7.575 pounds to the foot; that he never weighed them because they were beyond the required weight per foot; about thirty percent of that sort of pipe was inspected and passed, and that he passed nothing but good pipe.
Frederick G. Apt testified that he did not advise defendant that they could buy that pipe without a contract or without a commissioner’s meeting.
On that record the commissioner found all the issues in favor of defendant. We will examine the evidence.
Fry testified as to the statement by defendant that Krupp was to give him $785. He also testified to seeing Krupp come to the office óf defendant, and that defendant said at that time he had $300 of Krupp’s money. If this should be believed it would be sufficient of itself to justify ouster of defendant. On account of the apparent interest of Fry we will examine the surrounding facts and circumstances with the idea of finding whether Fry’s testimony is corroborated. The two conversations testified to by Barnes furnish some corroboration. We now must not only wave aside the testimony of Fry, but must do the same thing with Barnes’ testimony. The conversations sworn to by Barnes have the ring of naturalness. They are about what a man would say under such circumstances. Defendant ridicules the idea that men would have such a conversation in the presence of a third person, but for aught this record shows the circumstances might have been such that the speaker did not notice the presence of Barnes. In order to believe the story of defendant, this court is asked to disbelieve too many people. There is the further circumstance of the payment of $100 to Ashford. Fry testified that in the early conversations defendant told him that Ashford would have to have $100. There seems to be no dispute but that Ashford received this. Surely this is a circumstance that is entitled to some weight. A small circumstance that must be considered is the fact that both defendant and Bartlett wanted to close the deal for the pipe by six o'clock of the night they returned. It is true they both denied this, but no reason appears why Hobart would swear falsely in this case. The fact that they both thought this important enough to deny causes it to assume more importance in the case than if they had offered some explanation. The undue haste shown by them in their action in buying the pipe without a meeting of the commissioners throws a shadow of suspicion on the whole transaction. That brings us to a consideration of the most damaging circumstance of all- — -the price paid for the pipe. Used three-inch pipe was bought for only nine tenths of a cent less per foot than new pipe could have been bought. A great deal is made in the record about the fact that this pipe was about a pound per foot heavier than standard, but the trouble with that is that defendant himself does not testify that he knew this at the time the purchase order was signed. In fact, no examination of the pipe that would have enabled him to determine this was had. Indeed, the bid does not specify anything as to the weight, while the bid offered by other parties was for standard pipe. In connection with this must be considered the mystery of what happened to Mr. Nelson. Ernie Barnes testified that he hauled out to the ditch some pipe that Nelson had rejected. Whether the city suffered by this purchase depended on whether this pipe was carefully inspected before it was put in the ground. Some action towards this end was taken when, pursuant to the suggestion of Mayor Hobart, Nelson was given that job; but after three weeks he suddenly disappeared. Apparently nobody knew what happened. Nobody would say they caused his discharge, but the fact remained that he was no longer on the job with most of the pipe yet to be inspected. On the other hand, the ubiquitous Ashford appeared and took over the job, receiving money all the while from the man to whose interest it was that the pipe should all be accepted and paid for. The fact is that had not the pipe been purchased from a junk dealer instead of from a regular dealer for a few cents a foot more there would have been no need of a Nelson or any other inspector, and the opportunity for a large profit would not have been so great. The manner in which the contract was made and the way in which it was carried out all point to the conclusion that the contract was the sort of one which the party to be benefited would be willing to have executed. We have concluded that the finding of the commissioner on this cause of action should have been for the plaintiff.
In the fourth cause of action the defendant is charged with accepting a bribe in connection with the purchase of some waterworks equipment. As to this cause of action we have reached the same conclusion as expressed heretofore in this opinion with reference to the second cause of action.
In the fifth cause of action defendant was charged with having accepted a payment of money in connection with the purchase of land by the city for a swimming pool. The commissioner found the issue of fact on this charge in favor of the defendant. We will examine the record.
In this cause of action Fry testified that along in February, 1934, he had a conversation with defendant with reference to the city purchasing Riverside Park; that he told him there would be $1,000 in it which they would split; that later he told him there would only be $500 in it, which he offered to split with defendant; that he talked with F. O. Benson at the Iola State Bank; that the city bought the real estate in March, and he took defendant his $250. He also testified as follows:
“Q. Did you draw the money out of your bank account? A. No.
“Q. Well, you may state just what you did in connection with the obtaining of that money. A. He (Benson) called at my home and told me to come up to the bank. I did so. When I went in, he told me' he had deposited two hundred and fifty dollars ($250) to my account, had the deposit slip all made out and gave it to me. No, I will rescind that statement. He said he had deposited five hundred dollars ($500) to my account and he asked me how I wanted the other two hundred and fifty dollars ($250). I told him in cash. He went in and made out a check, brought it back and I signed it. He went and got the two hundred and fifty dollars ($250) in cash.”
He further testified that the check was made on his account' in which had been deposited $500, of which he kept $250; $250 he gave to defendant. On cross-examination he testified that the site of the fairground was selected by a committee appointed by the city commission; that he got $500 for a real-estate commission; that Buchanan was not present when he had his talk with Benson; that he did not think Benson knew where the money which was paid went; that it was paid with the understanding that it was going some place; that the money was withdrawn on a check but he had lost the check; that defendant was in his office when the money was paid and he said, “Can I use that?”
Jesse Benson testified that on March 16 Fry’s account was overdrawn $7.72; that on March 17 there was an additional check for $2, which, with the 2-cent tax, would make the overdraft $9.74; that the next entry is April 5, 1934, when the record shows thirty-nine checks ranging from one dollar to twenty, most of them for a dollar or two; that the last check was for $2 and 78 cents tax; that these checks were all presented to the bank the same day; the ledger sheets show a deposit on April 5 of $350 and another deposit of $150; that on April 6 the ledger sheets show checks for $250, $3, $3, $3, and tax six cents; and that the $250 check was not taxed; that this fact would indicate that this was what is called a counter check; that he never had any conversation with Fry about holding these checks; that he cannot say whether all the checks were presented on the same day; that it is unusual to have an account inactive for a long time and then have 39 checks presented on the same day; that he would not want to testify positively that some of these checks were not held for cash items. Prior to April 5, 1934, the Allen County Fair Association owed the bank $5,590.30; that on that date the obligation was paid; that the amount had been built up over several years; that on April 5 the Allen County Agricultural Society gave a new note for $150.
Shanahan testified that exhibit 32 was the resolution of the board of commissioners accepting the offer of the Agricultural Society to sell the land and assuming the indebtedness of $12,160 and appropriation of the money from the electric fund; that exhibit 34 is a copy of the claim of the Agricultural Society for $5,700 on note; that exhibit 34-A is a city warrant for $5,700 showing payment by perforation; that exhibit 34-B is a copy of a note dated December 9, 1933, for $5,590.30; that exhibits 35 and 35-A are claims of the Iola Building and Loan Association and city warrant for $6,460.
Bartlett, for the defendant, testified there was a question about where the swimming pool should be located; that he and the mayor and defendant looked around and finally decided to call in a lot of men and to let them decide and they finally decided that Riverside Park was the best place; that part of the land was owned by the city and part by the Agricultural Society. On cross-examination he testified the land bought for the city adjoins land already owned by the city and that he thought it was a good buy.
Defendant testified that the committee voted to put the swimming pool in Riverside Park; that a representative of the Agricultural Society appeared before the commission and offered to give the commission the land down there if the city would assume the indebtedness; that after the grant was made of money to build the swimming pool there had to be a location for it, so the deal was made; that he never had any conversation whatever with Pry about the ground; that he came and wanted the engineer’s estimate of the cost before the contract was let and he would not tell him; that Fry wanted to know so he could bid just under the estimate; that a man named Northrup advised him that it would be a good idea for the city to do the work and not have a contract, but that on account of it costing Chanute $20,000 extra to build a swimming pool by that method, he refused. On cross-examination he testified that he thought Doctor Beattie and Mr. Klein presented the proposition about the sale of the real estate to the city; that Klein owns the Klein Lumber Company; is a member of the Fair Association and he thought a director of the bank.
Cedric Wilson testified he was engineer for the proposed swimming pool; that he was present in the commission room when the proposition of buying the land first came up; that there were present three city commissioners, the city attorney and the city clerk and himself; that Hobart was opposed to buying any more land and defendant was opposed to purchasing the land; that in the general conversation the city attorney was in favor of purchasing the land, and his impression was it was the city attorney’s remarks that swung defendant over to buying the land.
F. 0. Benson testified he was president of the Iola State Bank; that he knew R. D. Fry; that he never had any dealings with R. D. Fry with reference to the sale of land for the city; that the bank had a note of the Agricultural Society for about $5,590 principal; that the financial worth of the indorsers on the note was $200,000. On cross-examination he testified he did not remember any conversation with Fry about the sale of the land; that it is not a fact that he and defendant talked the matter over in the rear of the bank; that he and Fry and defendant had talked things over in the rear of the bank many times, often about the swimming-pool contract; that he did not hold out any checks of defendant; that Fry did not tell him what the check for $726 was for; that he made out two deposit slips for Fry for something like $500; that he did not hold any checks for Fry and they are not in the habit of doing business that way; that many business men call up and ask whether a check is good and sometimes they just hand a check in and say when this is good take the money out and pay it; that he never had any conversation with Fry about the sale of the land; and he further testified as follows:
“Q. Now under expense here on the original that you have here, it appears that on this day of April 5, 1934, there is the handwriting of two different persons. A. First two items are in the handwriting of my son, Jesse Benson, cashier of the bank. The one item of $250 is in my handwriting.”
On recross-examination he testified that two officers or directors of the bank were indorsers of the note of the Agricultural Society; that there was $125 paid on the note on the day that Fry deposited the $500 in the bank.
In response to questions by the commissioner he testified that the fact that he made out the two deposit slips — one for $150 and one for $350 — did not mean that he made the deposit; the item of $250 on April 5, 1934, is in his handwriting and was paid to G. R. Gard, attorney for the bank; that one note was for $125; that it was paid in full on April 5, 1934. On recross-examination he testified that he did not have a receipt for the $250 that appears on the exhibit as expense; that he had had a receipt for it but could not find it; that he thought perhaps the county attorney had carried it away; ,the receipt was not prepared a month before, as shown on the ledger sheet; that the perforations showed that the receipt was issued the month before and this was probably caused by the clerks in the morning when they turned the stamp machine up turning the day instead of the month; that the receipt showed on its face that it was Mr. Gard’s official receipt as having been paid April 5, 1934; and that was written on the receipt in ink while the rest of it was written on a typewriter. On redirect examination he testified that the $250 was paid to Gard in cash; that on the same day the Agricultural Society borrowed $150 from the bank, and that he could not recall whether they told him what they wanted it for or not.
In rebuttal Fry testified that on April 5,1934, F. 0. Benson called him down to the bank and told him he had just deposited $500 to his credit and asked how he wanted the other half, and when Fry said “in cash” he went in and'got $250 and brought it with a rubber band around it, rolled up; and that he took it and gave it to defendant.
Frederick G. Apt, city attorney, testified he did not advise defendant the city could use the money from the sinking fund to buy the land.
A; M. Dunlap testified for the state on rebuttal that he was director and vice-president of the Agricultural Society; that he signed the note for $5,590 as vice-president and indorsed it personally; that the directors were all supposed to sign it, but they did not all do it — four of them were not on there; that the bank wanted the note paid; that he received a notice from the bank addressed to A. M. Dunlap as president of the Agricultural Society, although he was not president, and to him personally stating that the bank demanded payment of the note; and that the banking department had been making demand for the payment of the note.
On the above evidence the commissioner found the facts in favor of the defendant.
If' the testimony of R. D. Fry is believed the facts should be found for the state. Fry testified that the money was paid to defendant; the defendant denied this. Enough has already been said in this opinion about the interest of these two witnesses. We do not see as much reason for doubting the veracity of Fry as there is for doubting the veracity of defendant. Since it is the sort of a case where direct evidence of the actual transaction is difficult to obtain, we must have recourse to what facts and circumstances are available. To begin with, it is perfectly evident that the city engaged in a doubtful transaction when they bought the land. (See City of Iola v. Hobart, 141 Kan. 709, 42 P. 2d 977.) There is some evidence that the transaction was the sort of one wherein the commissioner who wielded the influence.on the commission would be apt to take a bribe. The next important circumstance is the fact that the bank was demanding payment of the note in spite of the fact that one of the bank’s witnesses testified the financial worth of the indorsers on the note was $200,000. We find the bank writing sharp letters to one of the signers demanding payment and resorting to that final threat of all bankers — that the banking department was demanding that the note be paid. There appears no reason for doubting the testimony of Dunlap on this point. Clearly the bank had a note among its assets which it was anxious to get rid of, and securing the sale of this land would accomplish that end without the embarrassment of bothering any of the indorsers. A final determination of the matter requires a consideration of the records of the bank. The testimony of Fry was that under the agreement he was to receive $500 from the bank when the land was sold and that his agreement with defendant was that the defendant was to get half. The president of the bank at first denied having any conversation with Fry and defendant, and then admitted he had many conferences with them in the bank, a circumstance which at the outset requires a careful scrutiny of their testimony. The next bit of circumstantial evidence is the condition of the account of Fry. On March 17 the entry on this account shows an overdraft of $9.74. The next entry is on. April 5, when 39 checks in amounts from $1 to $20 were all cashed on the same day. The cashier testified these checks had been held as cash items in the bank until the account of Fry was in such a condition that they could be charged against it. The president of the bank, while not so candid as his son, the cashier, admitted under cross-examination that this was probably true, a most surprising occurrence and one which persuades us that the bank expected Fry to have his money soon. On the day these checks were cashed the real deal was finally consummated and there was a deposit in the account of Fry of $350 and another for $150— just enough to make the $500 deposit which Fry testified the banker-told him was deposited on that day. On the same day the note of the Agricultural Society for $5,590.30 was paid and a new note for $150 of the society was given. The fact that the society was interested in selling this land; that some officers of the bank were officers of the society and that $150 was deposited in Fry’s account— just what was needed to make it total $500, the amount which he testified was deposited in it by the banker' — makes a chain of circumstances which go far in persuading this 'court that the story testified to by Fry was true. There is the added circumstance that these two deposit slips ■were made out in the handwriting of the president of bank. Fry testified that the banker told him he had deposited $500 for him in the bank, and on that day two deposit slips in the handwriting of that official appear in the records of the bank, a circumstance which taken by itself would not be so signifi cant, but when considered along with other facts and circumstances is persuasive. Nor is that all. Fry testified that Benson, the banker, asked him how he wanted half of the deposit, and he said in cash, whereupon Benson went back and came out with $250 in bills. The records of the bank show that on April 6 there were four checks drawn on Fry’s account — one for $250 and three for $3 each, with a tax of 6 cents. This indicates but one thing — the three $3 checks were handled through the regular channels of the bank; the imposition of the tax of 2 cents each proves that; while the withdrawal of the $250 was done either by what is called a counter check or through some interior channels of the bank; it might have been one of the other checks that was handled that way, but in this record the man whose account that was, testified that $250 was drawn from his account in that manner and a circumstance such as this is some corroboration. Another circumstance which is worthy of note is the fact that on April 5 there was an entry of $250 in the teller’s cash account of the bank. This appears in the handwriting of the president. That officer of the bank testified that this payment was made in cash to a lawyer for a fee and that the bank had the lawyer’s receipt for this amount. The receipt had disappeared between the time of the inquisition and the trial. It showed the date of April 5 indorsed in ink on its face and a date of a month later by the perforations made by a machine in the bank. The fact that the lawyer to whom the money was said to have been paid was not called to state what services he performed, that the transaction was in cash and that there was something queer about the receipt, point to a conclusion that this was the method used by the bank to account for $250 of the deposit of $350 that was made to the account of Fry on the same day.
After a consideration of the record on this cause of action we have concluded the finding should have been in favor of the state.
We are aware that we have thus reached a conclusion on the first, third and fifth causes of action in the petition, different from that reached by the commissioner. Our duty, however, bids us examine the entire record, weigh evidence- and reach our own conclusion as to the facts. Our examination of this record impels us to the conclusion already announced.
The judgment of this court is that ouster of the defendant be ordered.
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The opinion of the court was delivered by
Smith, J.:
These actions were for damages for injuries sustained in an automobile collision. Plaintiffs recovered. Defendants appeal.
John Cannon was driving an automobile, and Frank Larcher was riding with him. Defendant E. 0. Brown owned the truck, which at the time of the collision was driven by Homer Brown. The car in which plaintiffs were riding was being driven west on a concrete highway. They had just come down a long hill. At the foot of this hill was a filling station on the north side of the road. There were cars coming from the opposite direction and there were cars in front of the car in which plaintiffs were riding. The driver of the car directly in front signaled that he was going to turn in to the station. Cannon slowed up to avoid running into the car ahead, and as he did so the truck of defendants collided with him from the rear. There was testimony that immediately after the crash the driver of the truck said:
“I did not see you until I was almost upon you and I realized I could not stop my truck and I could not turn out around you to the left because of the cars going east, and I could not turn to the right because of the filling station and the things in the driveway, and the only thing I could do was to crash into you.”
The driver of the truck testified he had examined the truck and the brakes and air hose of the truck and they were in good condition; that he had made several stops before the collision and the brakes worked all right; that he tried to slow down but the brakes would not hold; that he could have stopped if his brakes had held as they had been holding; that about three miles farther on he discovered the air hose had broken; that when the air hose was broken the truck had to be operated with the foot brakes; that he was about 50 or 75 feet away when he applied the brakes and about 25 feet away when he discovered he could not stop.
The cases were consolidated in the trial court.
The jury found for plaintiff Cannon in the amount of $653.63 and for plaintiff Larcher in the amount of $269. The answers to special questions were as follows:
“1. What was the proximate cause of the accident in question in this case? A. Negligence of the driver of the truck.
“2. Did the defendant, or his agent, use that care which an ordinarily prudent man would have used to inspect the brakes on the truck on the morning of the day of the accident? A. Yes.
“3. Did the brakes on defendant’s truck work properly prior to the time the driver, Homer Brown, applied them immediately prior to the accident? A. Yes.
“4. Were the brakes and the air hose in apparently proper condition and repair at the time of the inspection? A. Yes.
“5. Did Homer Brown attempt to apply his brakes immediately before the accident? A. Yes.
“6. In the event you answer question number 5 in the affirmative, then state if there was any indication of improper brakes or defective or broken air hose until and prior to the attempt of Homer Brown to apply same immediately prior to the accident. A. No.
“7. If you answer question number 6 in the affirmative, then state what there was to bring the condition of the defective or broken air hose or defective brakes to the attention of the defendant, or his agent, Homer Brown.”
Question No. 1 was further answered by the jury on motion of defendants as follows:
“1. What was the proximate cause of the accident in question in this case? A. Negligence on part of driver in not taking due precautions in descending hill when he saw car slowing up ahead.”
Defendants filed a motion for judgment on the answers to special questions notwithstanding the general verdict. This motion was overruled. The ruling is one of the errors urged by defendants.
Defendants argue that failure of brakes to operate does not impose liability on one who had examined and adjusted them two or three days before the accident, at which time they worked properly. But in this case the failure of the brakes to operate was not the proximate cause of this collision. The jury found that the proximate cause was negligence of the driver in not taking due precautions in descending the hill when he saw the car slowing up ahead. The driver going down hill at about 40 miles an hour permitted the truck to get within 75 feet of the car in front before he attempted to put on his brakes. Due care required that he keep at a greater distance in the rear. Had he done so he might have eased the force with which his truck struck the car by the use of the foot brake. He had no right to approach so close to the car in front that only the use of his air brake would prevent a collision. The jury was no doubt swayed somewhat by the evidence of the statement of the driver that “I did not see you until I was almost upon you.” A proper lookout would have enabled him to lessen the force of the collision if he could not have prevented it altogether. The motion for judgment on the answers to special questions was properly overruled.
There is another error urged by defendants that requires attention. It is based upon the following direct examination of plaintiff Cannon:
“Q. Mr. Cannon, just relate what conversation you had with Homer Brown, the driver of the truck, at the time of the accident.
“Mr. Stearns: We object to that for the reason it has already been asked and answered.
“The Court: Well, if there is anything additional.
“Q. Any additional statement that you can recall, just tell what was said there. A. Well, I remember that after we got together after the accident, Homer Brown told me that he felt it was his fault because he came over the hill so quick that he didn’t have time to stop his truck and the only thing he could do was to run into us, and I asked him if his employer carried liability insurance on the truck and he said ‘yes.’
“Mr. Stearns: I object to that and move that the answer be stricken out.”
At this point the court asked the jury to retire. Counsel for defendants thereupon moved the court to dismiss the jury for the reason the plaintiffs had voluntarily injected into the case the question of liability insurance. After some colloquy the trial court decided to overrule the motion of defendants and instructed the jury as follows:
“The Court: ‘The jury will be instructed that the latter part of the statement of the witness just given before you were excused will be stricken out and you are instructed to disregard it.’ ”
Defendants argue it was error to refuse to discharge the jury. The question was again raised on the motion for a new trial. When denying this motion the court found that plaintiff Cannon did not deliberately inject the question of insurance into the case. The inadmissibility of evidence that a defendant in a suit for personal injuries carries liability insurance is well established in this jurisdiction. In Coffman v. Shearer, 140 Kan. 176, 34 P. 2d 97, the court said:
“It would appear that in a damage suit for personal injury the inadmissibility of such testimony and of the trial court’s duty to exclude it is no longer a subject of fair debate in this jurisdiction. And not only so, but it is only when such testimony gets into the record inadvertently that its admission can be cured by a peremptory order of the court to strike it out and for the jury to disregard it. (Holloway v. Telfer, 136 Kan. 80, 12 P. 2d 826.)” (p. 181.)
In this case the action of the court in overruling the motion to discharge the jury and the denial of the motion for a new trial amount to a finding that the testimony as to the liability insurance got into the record inadvertently. Such being the case, the prompt action of the trial court in advising the jury that it should not consider such evidence prevented the defendants from being prejudiced.
This view is supported by the fact that the verdicts were not excessive and by the fact that there was very little dispute as to the facts. While defendants argue that finding No. 1 was not supported by the evidence, the argument is directed at what significance should be given certain facts rather than at a dispute as to what actually happened.
This court frowns on the practice of using one means or another to give the jury a hint that the defendant is covered by liability insurance, but does not find that this case is one where the introduction of the evidence required a new trial, in view of the prompt action of the court in admonishing the jury, and the facts and circumstances showing liability.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Goldie Johnson was convicted of the crime of being accessory after the fact to the shooting of the sheriff of Ness county.
She appeals, contending that the trial court erred in overruling her demurrer to the state’s evidence.
The facts upon which the prosecution was based were these:
On February 9, 1934, Clayton Libby, sheriff of Ness county, received a telephone call from Oakley (on the borders of Thomas and Logan counties) that certain bank robbers were traveling southward on a public highway out of Quinter in Gove county. Sheriff Libby and the county attorney of Ness county intercepted a car with three men in it at Beeler in Ness county. As these officers approached, one of the three men in the other car reached for a gun. The officers gave chase, and eventually came upon the other car. Sheriff Libby got out of his car and was shot in the leg — presumably by one of the three men he had been pursuing. Probably the sheriff had exchanged shots with them, but the record does not state. The pursued trio abandoned their car; impressed another car into their service, and compelled its owner to drive them to a point near Cedarvale in Chautauqua county, nearly 300 miles away. Sheriff Libby examined the abandoned car and the road thereabouts in Ness county. He discovered a pool of blood, evidencing that one of the trio had been wounded. In the abandoned car was a rifle, a sawn-off shotgun, and an automatic pistol.
Contemporary with these events this defendant, Goldie Johnson, came from somewhere for a visit to the home of Mr. and Mrs. Everett Bonnell near Cedarvale. She drove a Plymouth coupé which belonged to one Jim Clark, who was then an escaped convict from the state penitentiary. Defendant was a former school acquaintance of Mrs. Bonnell. She told the latter that a “boy friend” would come for her. About 6 o’clock, before daylight, the morning after the sheriff of Ness county was shot, three men came to the Bonnell home. One of them was apparently wounded in the feet, lie walked “rather funny” and there were drops of blood on the porch and near the tracks of the automobile in which he had come. Defendant left the Bonnell home with those three men in the coupé of Jim Clark. Later she was arrested in Oklahoma City, where she was living with Jim Clark. She was brought to Hodgeman county, and while in jail at that point she told the sheriff of Ness county that she had given Jim Clark $15 to buy a gun and $30 for expenses on some adventure he was about to undertake (the state’s inference was that it was some projected felony), and that she thought one of the trio whom the sheriff had pursued on February 9 was Frank Delmar. She also said that Jim Clark told her it was Delmar who had reached for a gun during their pursuit by the sheriff, and that he, Jim Clark, was going to quit Delmar because he was too scared at anything he got into. Another witness for the state also testified that.on the road between Jetmore and Ness City defendant told him the coupé she had driven to the Bonnell home belonged to Jim Clark, that she had nursed a gunshot wound in his foot, and that “she would do anything in the world for Jim Clark.”
Do these facts support a verdict of conviction of the specific charge contained in the information? It read:
“. . . On or about the 9th day of February, 1934, in the county of Ness and state of Kansas, Jim Clark, Frank Delmar, and John Doe did then and there unlawfully, feloniously, on purpose and of malice aforethought shoot with a deadly weapon, to wit: a gun loaded with powder and leaden balls, one Clayton Libby, sheriff of Ness county, Kansas, and did then and there assault the said Clayton Libby with intent to kill; and that one Goldie Johnson after the commission of the felony and crime as aforesaid, and knowing the said Jim Clark, Frank Delmar, and John Doe to have committed the felony and crime as aforesaid, did unlawfully and feloniously conceal and aid the said Jim Clark, Frank Delmar and John Doe with the intent and in order that they might escape and avoid arrest, all of which is contrary to the statutes,” etc.
There was no evidence that at the time defendant drove away from the Bonnell home with Jim Clark and his associates that defendant knew that the crime of shooting the sheriff of Ness county had been committed. Indeed the evidence does not show that Clark and his associates themselves knew that fact. There could be no criminal offense of concealing and.aiding Clark, Delmar and Doe, or any of them, to escape, and to avoid arrest, without defendant’s knowledge that they had committed some, crime and that their arrest was sought therefor. The information charged that she concealed and aided them to escape and avoid arrest knowing that they had shot the sheriff. The court’s instruction, which is the law of this case so far as the state is concerned, reads:
“In order to render one liable as an accessory after the fact, he must have actual knowledge at the time he assisted the principal, that the latter had committed a felony. Such knowledge must be personal as distinguished from constructive, but if the accused had actual knowledge of facts which would give him good reason to believe the person assisted to be guilty of a felony, this would be sufficient to prove actual knowledge.”
It is useless to multiply words in this appeal. It was not shown, and under the facts and circumstances it could not be shown, that defendant knew that any of the trio had shot the sheriff, or that they had committed any other felony in Ness county on February 9, 1934, at the time she did whatever the state claimed she unlawfully and feloniously did do, and which the state construed to have been a concealing and aiding of the trio with intent that they should escape and avoid arrest for the crime of shooting the sheriff.
From the record it would appear that Goldie Johnson furnished Jim Clark with money to buy a gun and to pay expenses whereby he could go some place and commit some crime and that he might shoot somebody in the course of it, and that she arranged with him in advance to have his automobile in readiness at the Bonnell home in Chautauqua county to enable him to escape. If such was the arrangement she might be guilty as accessory before the fact of whatever crime Clark might have committed, but certainly not the alleged crime for which she was prosecuted and convicted.
The judgment is reversed, and the cause remanded with instructions to discharge the defendant. | [
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The opinion of the court was delivered by
Thiele, J.:
This is an appeal from an order denying a motion to dismiss the action.
Plaintiff filed an action for a divorce from defendant on the ground of extreme cruelty. The petition alleged that the parties, through their joint efforts, had accumulated a considerable amount of real estate, which was described, as well as cattle, farm machinery and other personal property; that she had joined with defendant in notes secured by mortgages on the real and personal property; that she had been in bad health and confined to her bed, and not realizing the contents and purport of the same, on October 20, 1934, had executed a property settlement, a copy of which was attached to the petition, but is not abstracted; that she signed said contract because of the action and threats of the defendants, and on said date learned that defendant claimed to have been divorced from her. She further alleged that defendant was and had been for over forty-five years a resident of Kingman county and had no other home, abode or residence, and if a divorce had been granted it was without the knowledge, acquiescence or consent of plaintiff, was wrongfully obtained and null and void. Other allegations as to her separate property, payment of taxes, debts, etc., need not be noted.
The defendant filed a special appearance and moved the court to dismiss the action on the ground that on March 3, 1934, he had filed an action in the chancery court of Washington county, Ark., alleging a cause of action for a divorce against his wife; that his wife, by a written statement duly acknowledged, entered her appearance in the Arkansas court on March 2, 1934, the entry being filed March 3, 1934, and that on the same day the cause was tried and the parties divorced. Duly authenticated copies of the complaint in equity, entry of appearance and decree of divorce were attached to the motion and appropriate sections of the statutes of Arkansas with reference to divorce, and of the decisions of the supreme court of that state with reference to them, were also made an exhibit and attached.
The trial court overruled the motion, and the defendant appeals.
So far as the record shows, there is no claim that appellant was not, at the time the instant suit was filed, a resident of the state of Kansas, and there could be no claim that the court was without jurisdiction to determine the question of plaintiff’s right to relief. The whole force and effect of appellant’s motion is to raise the question whether the matters complained of in appellee’s petition are res judicata by reason of the proceedings in the Arkansas court. It was held in Bank v. Benson, 8 Kan. App. 566, 54 Pac. 1037, that a motion to dismiss is not the proper method to raise the question of a former adjudication. In Maynard v. Bank, 105 Kan. 259, 182 Pac. 542, it was said:
“The case has been argued here upon its merits, the jurisdiction of this court not having been questioned by the appellee. It is obvious, however, that the appeal cannot be entertained, because the decision overruling the motion to quash the service and dismiss the case is not a final order as defined in the code, and is not made appealable by the statute. (Oil Co. v. Beutner, 101 Kan. 505, 167 Pac. 1061.)” (p. 260.)
Had the appellant answered and the appellee replied, on the issues thus joined the trial court could have heard the evidence and rendered a judgment from which an appeal would lie. As the matter now stands, the appellee has not had an opportunity to plead or defend, and, as shown, this court is without jurisdiction to rule on the correctness of the trial court’s ruling on the motion to dismiss.
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The opinion of the court was delivered by
Lockett, J.:
Defendant entered an Alford plea to second-degree murder and aggravated robbery. Defendant filed a post-sentencing motion to withdraw his plea, claiming that he had not received the specific sentence promised and that he was not provided with effective assistance of counsel because his court-appointed attorney was acting as a special county attorney while defending him. The sentencing judge refused to allow defendant to withdraw his plea. Defendant appeals the denial of the motion to withdraw plea.
Dennis Wallace was charged with first-degree murder, aggravated robbery, and aggravated kidnapping. Mark Ward was appointed to represent Wallace. Because of the death of the county attorney, a deputy attorney general represented the State during the later stages of the proceeding.
Wallace entered an Alford plea to reduced charges of second-degree murder and aggravated robbery on November 30, 1992, the day before trial was to commence. There was no written plea agreement. After the district judge accepted Wallace’s plea, the State and defense counsel informed the judge that there was no agreement concerning the sentence to be imposed. Sentencing occurred on January 22, 1993. The State requested imposition of consecutive maximum sentences. Wallace received consecutive maximum sentences of 15 years to life for the offenses. Wallace filed a motion to modify his sentence 5 days later. The aggravated robbery sentence was modified downward to 10 to 20 years but remained consecutive to the 15 years to life sentence for second-degree murder.
Six months after the sentence was modified, Wallace filed a pro se motion to withdraw his plea. Following a hearing at which Wallace and his trial counsel testified, the judge denied Wallace’s motion.
K.S.A. 22-3210(d) permits a trial court to set aside a judgment of conviction and allow a defendant to withdraw his or her plea after sentencing to correct manifest injustice. The decision of whether to grant or deny a motion to withdraw a plea lies within the sound discretion of the trial court, and the trial court’s decision will not be disturbed on appeal absent a showing that the trial court abused that discretion. See State v. McDaniel, 255 Kan. 756, Syl. ¶ 4, 877 P.2d 961 (1994); State v. Jackson, 255 Kan. 455, Syl. ¶ 2, 874 P.2d 1138 (1994); State v. Morris, 254 Kan. 993, Syl. ¶ 2, 869 P.2d 739 (1994); State v. Hill, 247 Kan. 377, Syl. ¶ 2, 799 P.2d 997 (1990). One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. State v. Davis, 256 Kan. 1, 26, 883 P.2d 735 (1994).
Wallace sets forth two arguments. First, he argues that his court-appointed counsel, Mark Ward, misled him as to the sentence the judge would impose. Second, Wallace complains that his Sixth Amendment right to effective assistance , of counsel was violated because his appointed counsel had a conflict of interest because at the same time counsel was defending him for a Bourbon County crime, he was serving as a special prosecutor for Bourbon County. Wallace also asserts that where the fundamental constitutional right to effective counsel is violated, the trial court has no discretion and is required to allow a defendant to withdraw a plea.
We first address Wallace’s argument that his defense counsel guaranteed him the district judge would impose a specific sentence. Wallace testified at the hearing on his motion to withdraw plea that his defense counsel, Ward, promised that he was to receive two 10- to 20-year sentences. According to Wallace, Ward informed him the judge had stated that if the press was present at Wallace’s sentencing, the judge would impose a more severe sentence and later reduce the sentences when the motion for modification of Wallace’s sentence was heard: Wallace also testified that he understood the State had agreed to stand mute as to the sentence to be imposed by the judge.
Ward denied he promised Wallace that he would receive two 10- to 20-year sentences or that the judge had agreed to impose a specific sentence at Wallace’s sentencing or modification hearing. Ward insisted he explained to Wallace the range of penalties and that the sentencing judge had discretion in imposing the sentence.
The transcript of Wallace’s plea hearing reveals that before accepting Wallace’s plea, the judge informed Wallace of the range of penalties for each offense. Wallace acknowledged at that hearing that the judge was not bound by any agreement of counsel or recommendation concerning the sentence and that the sentence to be imposed would be up to the judge. Wallace also agreed that there would be no sentencing benefit by entering a plea rather than proceeding to trial. Finally, Wallace indicated to die judge that no threats or promises of leniency had been made to him.
At the hearing to set aside his plea, Wallace conceded that at the plea hearing he acknowledged the judge was not bound by any sentencing recommendation. Wallace claimed that even though the State and his counsel informed the judge at the plea hearing that there was no agreement as to the sentence to be imposed, he had been instructed to just stand there because his counsel had the deal worked out prior to the hearing. Wallace asserted that he did what his attorney told him to do but did not understand what was occurring at the plea hearing.
The judge found that no promises had been made to Wallace by the State or defense counsel. The judge concluded that Wallace’s counsel had been effective and that no manifest injustice occurred that required setting aside Wallace’s plea. We have previously stated that a mere inaccurate prediction by counsel of the sentence a defendant might receive does not constitute ineffective assistance of counsel. State v. Solomon, 257 Kan. 212, Syl. ¶ 7, 891 P.2d 407 (1995). Here, there is no evidence of a plea agreement or an inaccurate prediction as to the sentence to be imposed. Under the facts, the judge did not abuse his discretion in denying Wallace’s motion to withdraw plea based on the sentence Wallace received.
To set aside a guilty plea because ineffective assistance of counsel has rendered the plea involuntaiy, the defendant must show that counsel’s performance fell below the standard of reasonableness and that there is a reasonable probability that but for counsel’s errors the defendant would not have pleaded guilty and would have insisted on going to trial. Solomon, 257 Kan. 212, Syl. ¶ 6. Wallace asserts that Ward’s capacity as a special prosecutor created an inherent conflict of interest which violated Wallace’s constitutional right to effective counsel and required withdrawal of his plea.
The Bourbon County attorney was killed during the pendency of Wallace’s criminal case. Ward served as a special prosecutor in criminal cases when the county attorney had a conflict of interest, and he filed criminal cases for a week or so after the county attorney’s death. Ward served as a special prosecutor for Bourbon County while representing Wallace in Bourbon County. Ward could not recall the number of cases he prosecuted when the county attorney had a conflict of interest. Ward testified that the majority of the cases on which he was a special prosecutor were misdemeanors, and there may have been one felony case. Ward stated that acting as a special prosecutor in the other criminal cases did not interfere or conflict with his representation of Wallace and that he was prepared for Wallace’s trial. He believed Wallace was aware he acted as a special prosecutor in other cases while defending Wallace.
Wallace testified he was not informed of Ward’s status as a special prosecutor and would not have consented to the appointment of Ward as his defense counsel if he had been aware of the conflict. Wallace argues that whether or not he was aware of the conflict, Ward’s status as a special prosecutor was an inherent conflict of interest which compromised Wallace’s constitutional and statutory right to effective counsel. Wallace cites Holloway v. Arkansas, 435 U.S. 475, 55 L. Ed. 2d 426, 98 S. Ct. 1173 (1978), and Cuyler v. Sullivan, 446 U.S. 335, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980), which are discussed later in this opinion. Wallace argues that as a special prosecutor and to maintain Ward’s relationship with the county government, Ward’s true sentiments were to insure that the client he was defending was convicted or entered a plea.
The State stresses that Wallace’s defense counsel acted as a special prosecutor only on a limited basis. It argues that Ward was not a “part-time” county attorney working for or under tíre supervision of the county attorney when he defended persons charged with crimes. The State contends that under these circumstances, Ward was sufficiently removed from the prosecutor’s office that there was no conflict of interest and that Ward’s representation of Wallace was effective and did not violate Wallace’s right to counsel. For authority, the State cites State v. Rice, 227 Kan. 416, 607 P.2d 489 (1980).
In Rice, the defendant was represented on state criminal charges by a court-appointed attorney whose law partner served as a part-time judge of the municipal court in the same city. The attorney sought to be relieved as defense counsel because of the possible conflict. The Rice court stated that ordinarily, a part-time judge or part-time city or county attorney or the law partner or associate of such public servant would not be precluded, on a basis of conflict of interest, from representing defendants in criminal cases in other courts. However, such persons could not represent or be appointed to represent a defendant in the court in which the judge or part-time city or county attorney carries out his or her duties. The Rice court stated that the decision of whether a conflict of interest actually exists or whether the relationship of the defense counsel to the public servant creates a conflict of interest is to be determined by the judge and counsel on an individual basis. The Rice court found no actual conflict of interest or appearance of impropriety to preclude the representation in that case. 227 Kan. at 421-22.
In Widener v. State, 210 Kan. 234, 499 P.2d 1123 (1972), Widener pleaded guilty to two criminal offenses in the Cowley County District Court. Widener later filed a K.S.A. 60-1507 motion seeking to set aside his convictions due to ineffective assistance of counsel because his court-appointed attorney was also the probate judge in Cowley County. Widener did not claim that the quality of representation by the attomey/probate judge was deficient. The Widener court noted that a probate judge had no jurisdiction over or duties related to criminal cases. Moreover, there was no limitation on the practice of law in other courts by probate judges in that county except where the practice conflicted with the duties of their office or the interests of those having business before the probate court. The Widener court noted that in essence the defendant was claiming he was denied the effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution. It observed that in measuring the adequacy and effectiveness of appointed counsel provided for an accused as guaranteed by the Constitution, adequacy and effectiveness must be gauged by the actual representation afforded the accused. To be a denial of an accused’s constitutional rights, it must clearly appear that the representation of the accused by his counsel was wholly ineffective and inadequate.
The Widener court observed that even though much has been cited concerning the judicial and professional ethics involved when a judge practices law, the issue before the court was not about judicial or professional ethics. It asserted that the constitutional issue raised was whether, under the circumstances, the defendant had the effective assistance of counsel. The court noted that the record clearly indicated that appointed counsel represented the defendant diligently and effectively. The Widener court concluded that an accused is not denied the effective assistance of counsel guaranteed by the Constitution merely because the attorney appointed to represent the defendant also holds the office of probate judge. 210 Kan. at 236-37.
In Rice, the defendant was represented by the law partner of a municipal court judge in a court other than the municipal court. In Widener, the probate judge was practicing criminal law in a separate court. Here, Ward was defending Wallace in the court in which he also prosecuted other individuals. Rice and Widener are not dispositive of the issue in this case.
Rice was cited in In re Lake, 241 Kan. 351, 737 P.2d 40 (1987), a disciplinary proceeding. Lake, an attorney, was found to have violated the Code of Professional Responsibility by representing a client, Ms. Hamner, in civil and criminal matters while he also served as Jackson County attorney. Lake had represented Hamner in a divorce and he later entered into a business with her. Subsequently, criminal charges were filed against Hamner in Jackson County. Lake did not defend Hamner on those charges. While the criminal charges were pending in Jackson County, Lake defended Hamner on separate criminal charges in Shawnee County. In addition, Lake also represented a creditor in a civil lawsuit against Hamner. Hamner filed a complaint against her attorney.
Lake argued that he had not violated disciplinary rules by representing Hamner in the Shawnee County criminal action while she was being prosecuted by his office in Jackson County. The Lake court reviewed the rationale of Rice and observed that lawyers holding part-time positions as judges or prosecuting attorneys should not appear as counsel for defendants in criminal matters in the courts in which they have responsibility. It found, however, that they may be far enough removed that they can appear as counsel for criminal defendants in other courts in which they have no substantial responsibility without giving the appearance of impropriety and without creating a conflict of interest. 241 Kan. at 355. The Lake court concluded that Lake was not far enough removed and had violated the Code because he was inextricably involved with the client in the business, a financial failure, which caused the criminal charges against the client. 241 Kan. at 355. See MRPC 1.7 (1994 Kan. Ct. R. Annot. 313) (conflict of interest).
The fact that a conflict of interest under either the Code of Professional Responsibility or the Model Rules of Professional Conduct may exist is not dispositive of whether a client had ineffective assistance of counsel in a criminal proceeding. In Schoonover v. State, 218 Kan. 377, Syl. ¶ 3, 543 P.2d 881 (1975), cert. denied 424 U.S. 944 (1976), which concerned a contingency fee contract in a criminal case, the court stated that unprofessional conduct by defense counsel which violates a disciplinary rule contained in the Code of Professional Responsibility does not constitute ineffective and inadequate counsel as a matter of law. It is simply one factor to be considered as a part of the totality of the circumstances in making a judicial determination as to whether an accused has been provided representation by effective counsel.
Two United States Supreme Court cases discuss the danger of joint representation of codefendants in a criminal case. In Holloway v. Arkansas, 435 U.S. 475, prior to the joint trial of three codefendants for robbery and rape, the court-appointed defense counsel who was providing joint representation for the codefendants moved for the appointment of separate counsel. The attorney claimed that because of confidential information received from the codefendants, he was confronted with the risk of representing conflicting interests and thus could not provide effective assistance for each of his clients. The trial court denied the motion, and the codefendants were convicted. On appeal, the Supreme Court of Arkansas affirmed.
On certiorari, the United States Supreme Court observed that requiring or permitting a single court-appointed attorney to represent codefendants is not per se violative of constitutional guarantees of effective assistance of counsel. In some cases multiple defendants can appropriately be represented by one attorney, and in some cases advantages may accrue from joint representation. 435 U.S. at 482. One such case is where a defendant in a criminal proceeding waived his right to the assistance of an attorney unhindered by a conflict of interest. 435 U.S. at 483 n.5.
The Holloway court noted that where representations are made by a court-appointed defense counsel representing codefendants in a state criminal proceeding that his joint representation of the codefendants confronts him with the risk of representing conflicting interests and, in the absence of any dilatory practices by the defense counsel, the failure of a court to either appoint separate counsel or take adequate steps to ascertain whether the risk of a conflict of interest is too remote to warrant separate counsel deprives the codefendants of the assistance of counsel under the Sixth Amendment. 435 U.S. at 484. It concluded that a court should grant a court-appointed defense counsel’s request for the appointment of separate counsel for codefendants he is representing in a criminal proceeding based upon counsel’s representations as an officer of the court regarding a conflict of interest since (1) an attorney representing codefendants is in the best position professionally and ethically to determine when conflicts of interests exist or will probably develop in the course of a trial; (2) defense attorneys have the obligation, upon discovering a conflict of interest, to advise the court at once of the problem; and (3) when attorneys, who are officers of the court, address a judge solemnly upon a matter before the court, their declarations are made virtually under oath. 435 U.S. at 485-86. The Holloway court reversed the defendant’s conviction and remanded for further proceedings.
In Cuyler v. Sullivan, 446 U.S. 335, two privately retained lawyers represented three criminal defendants charged with first-degree murder. All the defendants were tried separately. The first defendant to come to trial was found guilty on the basis of circumstantial evidence after his defense counsel rested without presenting any evidence. The defendant and his lawyers had not objected to the multiple representation. The other two codefendants were subsequently acquitted. The first defendant eventually petitioned for collateral relief under state law alleging, among other claims, that he had been denied the effective assistance of counsel because his defense lawyers represented conflicting interests. The trial court denied relief. The Supreme Court of Pennsylvania affirmed both, the first defendant’s original conviction and the denial of collateral relief. The court found that there was “ ‘no dual representation in the true sense of the term’ ” and that resting the defense without presenting evidence was a reasonable tactic which did not amount to a denial of the effective assistance of counsel. Eventually, the Third Circuit Court of Appeals granted habeas corpus relief, holding that resting at the close of the prosecution’s case raised a possibility of conflict in violation of the right to counsel. 446 U.S. at 337-40.
On certiorari, the United States Supreme Court vacated and remanded. It stated that a defendant who fails to object to multiple representation is required to establish that an actual conflict of interest adversely affected the performance of counsel in order to demonstrate a violation of the Sixth Amendment and that a trial court, unless it knows or reasonably should know that a particular conflict exists, is not required to initiate an inquiry into the propriety of multiple representation if no party lodges an objection. 446 U.S. at 347-48. The Court concluded that a convicted criminal defendant is not entitled to federal habeas corpus relief based on a violation of the Sixth Amendment right to effective representation upon a showing of multiple representation which involves a possibility of conflict of interest, since the mere possibility of such a conflict is insufficient to impugn a criminal conviction. 446 U.S. at 350.
In State v. Jenkins, 257 Kan. 1074, 898 P.2d 1121 (1995), this court discussed dual representation by an attorney. Jenkins appealed his jury conviction for sale of cocaine. Jenkins’ court-appointed attorney also represented the key witness against Jenkins on unrelated charges. The trial court had been informed of the dual representation. On appeal, Jenkins argued that he was denied the effective assistance of counsel at trial due to the conflict created by the dual representation. The Jenkins court discussed Holloway, 435 U.S. 475, and Cuyler, 446 U.S. 335. Reconciling Holloway and Cuyler, the Jenkins court stated that when a possible conflict exists but the trial court is not advised of the possibility, the limited presumption set forth in Cuyler applies and the defendant, in order to establish a violation of his Sixth Amendment right to the effective assistance of counsel, must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. See Cuyler, 446 U.S. at 348. On the other hand, Holloway requires that where the trial court is advised of the possibility of a conflict by either the defendant or the State, the court is required to initiate an inquiry to insure that the defendant’s Sixth Amendment right to counsel is not violated. If the trial court fads to inquire, a showing that there is an actual conflict of interest results in automatic reversal without a need to show that the conflict adversely affected counsel’s performance. See Holloway, 435 U.S. at 489.
The Jenkins court concluded that even though the defendant had not objected to the representation at trial, the trial court was aware that an actual conflict existed and therefore Holloway required automatic reversal. 257 Kan. at 1086-87. The court noted that reversal would also be required under Cuyler because the record showed that the conflict adversely affected counsel’s cross-examination of the witness he represented. 257 Kan. at 1087-88.
Beets v. Scott, 65 F.3d 1258 (5th Cir. 1995), was decided 5 months after Jenkins. After Beets’ conviction for the capital murder of her husband was affirmed by the Texas Court of Criminal Appeals, she sought habeas corpus relief, claiming ineffective assistance of counsel based on her counsel’s son taking assignment of media rights and her counsel’s failing to withdraw as trial counsel and testify for her. The United States District Court for the Eastern District of Texas granted relief, and the prosecution appealed.
The Fifth Circuit Court of Appeals noted that in most Sixth Amendment ineffectiveness cases, the defendant must show that counsel’s errors fell below an objective standard of reasonableness and prejudiced his or her case, which usually means establishing a reasonable probability that counsel’s errors changed the result of the proceedings, i.e., the Strickland test determining ineffective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1983). It observed that in some cases, prejudice is presumed if the defendant shows that an actual conflict of interest adversely affected counsel’s performance. 65 F.3d at 1265. In its analysis, the court noted that the Sixth Amendment assures defendants of legal counsel whose reasonably effec tive assistance permits a fair trial. 65 F.3d at 1268. The court stated that the purpose of Sixth Amendment is not primarily to police attorneys’ ethical standards and create a constitutional code of professional conduct but, rather, is to assure a fair trial based on competent representation. 65 F.3d at 1272. Not every potential conflict, even in multiple representation cases, is an actual conflict for Sixth Amendment purposes. 65 F.3d at 1268. The court concluded that counsel owes his or her client a duty to avoid conflict of interest, but that is just one of many duties, including advocating the client’s cause, consulting with the client and keeping him or her informed, and employing skill and knowledge on the client’s behalf. 65 F.3d at 1272.
The United States Court of Appeals held that: (1) the Strickland test of effective assistance of counsel, rather than the Cuyler test, offers the superior framework for addressing conflicts outside the multiple or serial client context; (2) attorneys should not enter into literary and media rights fee arrangements with clients during the pendency of the representation; (3) the defendant was not prejudiced by the fact that the attorney’s son was given media rights by the defendant as payment of attorney fees; and (4) the attorney’s failure to withdraw and testify for the defendant was not professionally unreasonable and did not prejudice the defendant. 65 F.3d at 1272-77. The United States Court of Appeals found that Beets had not established that she was deprived of constitutionally effective counsel and reversed the district court’s grant of habeas corpus.
None of these cases discussed have the same factual context as the case at bar. Here, a defense attorney was acting as a temporary prosecutor in the court in which he was defending his client.
It is the duty of the county attorney to appear in any court having jurisdiction within the county and prosecute or defend on behalf of the people all actions and proceedings, civil or criminal, in which the state or the county is a party or an interested party. K.S.A. 19-702(a). The legislature recognized that in certain situations the county attorney will be unable to perform his or her statutory duties and appointment of temporary county attorneys is necessary. In the absence, sickness, or disability of the county attorney and his or her deputies, any court before which it is the county attorney s duty to appear may appoint an attorney to act as temporary county attorney. K.S.A. 19-711. When a vacancy occurs in the office of county attorney, the district judges of the judicial district in which the county is located appoint a person to serve as temporary county attorney until a person is appointed and qualifies to fill the vacancy under K.S.A. 19-715(a). A temporary county attorney so appointed has the same powers and duties and is subject to the same qualifications as an elected county attorney. K.S.A. 19-715 (b), (c). If Ward was the elected county attorney of Bourbon County or was appointed and qualified to fill the vacancy under K.S.A. 19-715(a), he could not represent clients charged with violations of state criminal statutes in that county.
As provided by statute, Ward was appointed by the district court to serve as acting county attorney in specific cases in which the Bourbon County prosecutor had a conflict of interest and to serve as a temporary county attorney after the death of the county attorney. The district judge was aware of Ward’s capacity as a special prosecutor while defending an individual charged with a criminal offense. Ward was not a “part-time” county attorney working under the supervision and control of the county attorney when appointed as a temporary county attorney by the district judge. When enacting K.S.A. 19-711 and 19-715(b), the legislature did not intend that an attorney appointed as temporary county attorney would be prohibited from practicing law in the district court while fulfilling the temporary position.
The assistance of counsel is a constitutional right so basic to a fair trial that its denial can never be treated as harmless error. A trial judge has an independent duty to ensure that a criminal defendant receives a trial that is fair and does not contravene the defendant’s Sixth Amendment right to effective assistance of counsel. Jenkins, 257 Kan. 1074, Syl. ¶¶ 1, 2. To set aside a guilty plea because ineffective assistance of counsel has rendered the plea involuntary, a defendant must show that there is a reasonable probability that but for counsel’s errors he or she would have insisted on going to trial. State v. Solomon, 257 Kan. 212, 223, 891 P.2d 407 (1995); see Hill v. Lockhart, 474 U.S. 52, 58-59, 88 L. Ed. 2d 203, 106 S. Ct. 366 (1985).
Wallace stated that he felt confident about going to trial before the plea because there was no evidence against him. We note, however, that Wallace intended to rely on an alibi defense at trial. Shortly before trial, Wallace’s alibi witness refused to testify as to the alibi. In addition, Wallace was aware of evidence from a co-defendant placing Wallace at the scene of the murder and stating that Wallace was the one who did the shooting. Wallace claimed he felt he could justify pleading guilty to the two 10- to 20-year plea bargained sentences because he had been committing other crimes at that time. As discussed previously, the evidence did not show that Wallace was promised two 10- to 20-year sentences. Wallace testified, “I’ve had a lot of time to think about this, and regardless of whether I could justify two 10 to 20s or not, I would like to have my chance in court to prove that I didn’t shoot this man.” This shows that Wallace had a change of heart after he entered his plea, but it does not show that there is a reasonable probability that but for Ward’s conflict of interest Wallace would have insisted on going to trial. The trial court did not abuse its discretion in finding no manifest injustice requiring withdrawal of Wallace’s plea due to ineffective assistance of counsel.
The fact that an attorney has been appointed by the district judge as acting and temporary county attorney while defending an individual charged with committing a crime is not a violation of the defendant’s constitutional right to the effective assistance of counsel and does not constitute a manifest injustice which requires withdrawal of defendant’s plea. The trial court specifically found that Ward’s status as a special prosecutor did not affect his defense of Wallace. Wallace’s own testimony is not to the contrary. Under the facts, there was no conflict of interest created by Ward’s capacity as a special prosecutor, and Ward’s assistance as Wallace’s trial counsel was not ineffective. The trial court did not abuse its discretion in determining that there was no manifest injustice requiring withdrawal of Wallace’s plea.
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The opinion of the court was delivered by
Harvey, J.:
This was an action on a promissory note and to foreclose a mortgage given to secure its payment. The trial court sustained plaintiff’s motion for judgment on the pleadings. The real property was sold under the court’s decree and the sale was confirmed. The principal defendants have appealed.
The answer filed by the principal defendants contained a general denial, admitted the execution of the note and mortgage sued upon, and as specific defenses alleged:
(1) That the note was payable in gold coin; that such payment is now against the public policy; that gold coin has been withdrawn from circulation; hence, that payment in gold coin was not only illegal but impossible. Respecting this defense it may be said, in Norman v. Baltimore & Ohio R. Co., 79 L. Ed. 417, 55 S. Ct. 407, it was held that the payee of such a note was required to take payment in lawful money of the United States, and the court’s decree in this case was in accordance with that view; hence, appellants cannot complain.
(2) That there was no assignment of the note and mortgage from the original payee to plaintiff. The note bore the written endorsement of the payee and the mortgage the written assignment, which had been duly recorded; hence, this point was not well taken.
(3) That neither the original payee nor plaintiff had paid the registration fee upon the mortgage, required by chapter 273 of the Laws of 1925 (R. S. 1933 Supp. 79-3101 to 79-3107). The mortgage sued upon in this action was made to the Deming Investment Company of Oswego, Kan. It was acknowledged October 1, 1924, recorded October 9,1924, and was assigned the next day to plaintiff, a Vermont corporation, which corporation has continued since that time to own the note and mortgage. The statutes above mentioned do not require the payment of the registration fee on mortgages executed and recorded prior to the passage of the statute and owned by nonresidents of the state. Perhaps a provision of the statute making such a requirement would be invalid, but we need not determine that question, for it is not before us. It is sufficient to say the statute does not purport to make such a requirement. In this connection see Union Pac. Rld. Co. v. Stratemeyer, 119 Kan. 8, 237 Pac. 873.
(4) That plaintiff and its assignor cooperated to conceal the note and mortgage from the taxing officers, both of Kansas and Vermont, so that taxes would not be paid thereon in either state. We find nothing in the record to support such an allegation. The Deming Investment Company made the loan, took the note and mortgage, and transferred them to plaintiff before the statute requiring the mortgage registration fee was enacted. Certainly it cannot be charged with having attempted to evade a statute not then in existence. Since the transfer of the note and mortgage to plaintiff it has not been taxable in Kansas. Appellants are not concerned with whether the note and mortgage have been taxed in Vermont, and their general allegation to the effect that it had not been so taxed is not a defense to this action.
The result is, the answer stated no defense, and the trial court properly sustained plaintiff’s motion for judgment on the pleadings.
We may say the questions raised by the answer, or some of them, were also raised in slightly different form by a demurrer to the petition and by motions opposing the confirmation of the sheriff’s sale. It is not necessary to treat these separately.
We find no error in the record. The judgment of the court below is affirmed. | [
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|
The opinion of the court was delivered by
Wedell, J.:
This is an appeal by the respondent and insurance carrier from a judgment and award of the district court in a workmen’s compensation case.
The material facts are: Respondent owns and operates a flour mill in the city of Salina, and a line of country elevators through western Kansas. The claimant had been an employee of the respondent for approximately thirteen years prior to his accidents. The accidents herein mentioned occurred at respondent’s elevator at Lucas. The first accident occurred on June 15,1931, when claimant fell from a ladder while attempting to attach a spout at the elevator. As a result of this fall he sustained a traumatic incomplete right inguinal hernia. Traumatic hernia is a scheduled injury under the workmen’s compensation act. The compensation allowed therefor is sixty (60) percent of the average weekly wage during twelve weeks. The average weekly wage of claimant was $25. The scheduled compensation for traumatic hernia was, therefore, $180.
On October 12, 1931; claimant, while carrying a sack of feed out of the elevator, slipped and fell against an automobile. This accident resulted in a strangulated hernia on the same right side. Strangulated hernia is not a scheduled injury under the act. He was brought to Salina on the night of October 12 and an operation was performed on October 13. He remained in the hospital until October 30, when he returned to work for respondent. On January 25,1932, claimant made application for compensation with the commissioner for the first injury of June 15,1931. The only mention in that application concerning his second injury of October 12, 1931, is found in the following portion of that claim:
“Date of accident — June 15, 1931 . . . Cause of accident — spout falling from side of elevator. Nature and extent of injury — hands and limbs bruised and cut, injury to side causing operation for hernia on October 13, 1931. . . . Date quit work on account of injury — October 12, 1931.”
No question is raised as to notice or demand for the first injury nor concerning the finding and award of the commissioner concerning the same. This appeal involves the second injury and claimant’s right to compensation therefor.
On February 18, 1932, a hearing was had before the examiner. At this hearing claimant suggested to the examiner in substance that he did not know how the examiner desired to interpret the application, but that there was involved the question of a second accident on October 12, and that evidently the application to the commission was meant to cover both accidents. Respondent, appellant here, objected to the introduction of evidence concerning the second injury for the reason that no report had been made concerning the same and further raised the question as to whether an application for the second injury had been made to the commission.' Claimant contended that whether an application had been made to the commission depended upon the interpretation of the application to which we have previously referred. The examiner overruled the objection and permitted the introduction of evidence as to the second injury.
On March 11, 1932, the examiner made and filed his findings and the award. The findings and award were approved and confirmed by the commissioner on the same day. The findings dealt solely with the first injury of June 15. The award was in payment of compensation for the scheduled injury of traumatic hernia. It ordered the award in the sum of $180 paid in a lump sum and also ordered payment for medical attention in the sum of $8. No findings and no award were made either allowing or denying compensation for the second injury of October 12, 1931. No finding or award was made either allowing or denying the hospital bill in the sum of $90.70, or surgeon’s bill for operation as a result of the second injury, in the sum of $210. The only reference made to the injury of October 12 is found in the history of the case. The history relates claimant testified that on the 12th 'day of October he sustained another injury to his right side. The history shows this injury was diagnosed as strangulated hernia, that an operation had been performed on October 13, that he remained in the hospital until October 30, that while in the hospital he was called upon by Mr. Richter (who was a representative of the respondent company), and that no demand for compensation was made for any injury on October 12, and that nothing was ever said about this accident to anyone connected in a responsible way with the respondent until a few days before the hearing. The history portion of the commissioner’s report does not state whether claimant sustained a strangulated hernia on October 12, in the course of his employment. As previously stated, no findings were made concerning the injury of October 12. The award dealt solely with the first injury of June 15. On March 26, 1932, the insurance carrier paid the award in full by draft. The draft was for the sum of $180 and expressly provided as follows: “For all injuries received by him on or about the 15th day of June, 1932.” Above the indorsement on the back of the draft appears the following: “I accept this draft in full payment of compensation due me as stated on the face hereof.”
Claimant executed a final receipt and release containing a similar recital which was filed with the commissioner on April 4, 1932. On April 22 claimant filed an application with the commissioner to set aside the award and the release on the grounds of mutual mistake, fraud and gross inadequacy, and requested that claimant be permitted to amend his application for compensation theretofore filed and that he be granted an award for additional compensation. On April 25 he filed an application for compensation with the commission based upon the injury of October 12, the same being for a strangulated hernia, resulting in mental impairment; injury to scrotum, testicles; weak spells; impaired movement of lower extremities; permanent injury to right side and groin and abdominal injuries to nerves, muscles and tissues, continued pain and inability to perform manual labor; severe swelling in scrotum. The application for compensation based upon the second injury was set for hearing on May 20. At that hearing respondent objected to any consideration of claimant’s motion to set aside the former release, and filed a motion to dismiss both claimant’s motion to set aside release and claimant’s application based on injury of October 12. Briefly stated, the grounds for respondent’s motion to dismiss claimant’s application to set aside the release and to modify the former award were that the commission was without jurisdiction to review, modify or cancel its former award, in that the award was based upon a scheduled injury and that payment 'had been accepted and release of liability had been filed.
Respondent further contended that the only remedy available to claimant was by appeal within twenty days from the date of the award, to wit: March 11, 1932. As grounds for respondent’s motion to dismiss claimant’s new application for compensation as to the injury of October 12, they contended that evidence had been introduced over their objection concerning this injury at the former hearing and that the examiner had permitted the introduction of such evidence over their objection; that in the award of March 11, 1932, the commissioner made an award to the claimant for an inguinal hernia and made a finding of fact that the said hernia was sustained as a result of an accident on June 15, 1931, and that the commissioner made a further finding that claimant had not made demand for compensation for any injury occurring on October 12, 1931, and that claimant had not, until a few days before said first hearing, made any mention of an aecident on October 12, to anyone connected with the respondent. As above stated, the foregoing constituted respondent’s contentions.
Respondent further contended that the hernia referred to in plaintiff’s application for compensation filed on April 25, 1932, was the same hernia that is referred to in plaintiff’s first application for compensation. Respondent further contended that the commission was without jurisdiction to hear claimant’s last application for compensation filed on April 25, 1932, for the reason that the matters were adjudicated by the commissioner on March 11, 1932, and that claimant’s only remedy as to the award of March 11, 1932, was by appeal to the district court within twenty days from that date. In support of. respondent’s motions, they offered in evidence the entire record of the former hearing to .and including the last application for compensation filed by claimant. Claimant offered no evidence on his application to set aside the award, the final receipt and release and for additional compensation. He announced that he was not standing upon the motion to set aside the final release, but was standing upon the transaction of October 12. Thereupon the examiner proceeded to hear evidence concerning the injury of October 12. Respondent objected to the introduction of any evidence for the reasons stated in the motions and for the further reason that this matter had been adjudicated before the commission and that the commission had no further jurisdiction. The examiner stated that he would reserve his ruling. Evidence was introduced by claimant concerning written demands upon the employer for compensation as to the injury of October 12, and evidence was also introduced as to the strangulated hernia suffered on October 12, together with resulting physical disability which was not sustained by the injury of June 15. On June 18, 1932, the commission made and filed its findings and award concerning the second hearing of May 20. The findings made were:
"In addition to the admission of the parties it is found that the claimant’s average weekly wage was $25; that respondent had ten-day notice of the accidental injury on June 15, 1931; that claim for compensation was made as required by law on September 3, 1931; that the claimant met with personal injury by accident arising out of and in the course of his employment with respondent by receiving a traumatic, incomplete inguinal hernia, and compensation should be paid for twelve weeks, and the'medical services of Doctor Smith in the amount of $8 should be paid; that if the claimant met with personal injury by accident arising out of and in the course of his employment on October 12, 1931, that no written demand {or compensation was made within ninety days after the alleged accidental injury; that the motion of the respondent and insurance carrier questioning the jurisdiction of the commission to hear the claim filed on April 25, 1932, and motion to set aside final release and award, filed April 22, 1932, should be sustained for the reason that all the matters had been fully determined by the commission.”
The award made gave claimant the identical compensation given under the first award, to wit: $180, the amount due for the scheduled injury of traumatic hernia and $8 for medical services. The findings and award were labeled, “Modification of award and rehearing.”
On July 5 claimant filed a motion requesting that the commissioner change the title of the findings and award made on June 18 from “modification of award and rehearing,” to “hearing on claim for compensation of Ira E. Brown, as filed before said commissioner on April 25, 1932,” or such other appropriate heading or title as would speak the truth and disclose to the appellate court the true nature of the proceedings.
Claimant further requested that the commissioner strike from the history of his report that portion dealing with the motion of claimant to set aside the previous award, agreement and final receipt and for additional compensation for the reason that at the time of the hearing on May 22 the examiner was informed that the hearing on that date was upon the claim of October 12, and that no evidence would be offered concerning the accident of June 15, and that none was offered. Claimant further asked in substance that all mention of any claim of June 15 contained in the stipulation be stricken out and the date of October 12 be inserted, for the reason that the examiner knew that the hearing and stipulation related solely to the injury of October 12, and that all claim for modification of any award relating to June 15 was openly withdrawn and that the papers relating to modification of the award of June 15, 1931, were riot for consideration in the present case. Claimant further asked that the commissioner strike from said award or finding all reference to June 15 insofar as the same conflicted in any manner with the facts and circumstances of the accident and claim of October 12. This motion of claimant was filed and denied on July 5. Thereafter, and on July 5, claimant duly filed notice of appeal to the district court.
Respondent and insurance carrier filed a motion in the district court to dismiss the appeal on the ground that the district court had no jurisdiction to hear it. The contentions in support of the motion in substance were: All matters were previously heard and award thereon was made March 11, 1932; the award was a complete adjudication of claim for injuries sustained on October 12; the award was paid and no appeal was taken as required by the act; the commission had no jurisdiction to modify the award. The motion was overruled. The trial court made the following findings of fact and conclusions of law:
“Findings
“1. For a long time prior to June 15, 1931, Ira E. Brown had been employed by the Shellabarger Mill & Elevator Company as manager of its grain elevator at Lucas, Kan.
“2. On June 15, 1931, said Ira E. Brown sustained an injury arising out of and in the course of his employment by falling off a ladder while attempting to replace an old elevator spout with a new one resulting in a laceration of his hands and an injury to his right side nearly, but not quite, producing a hernia. The physician and the commissioner described the injury as an ‘incomplete inguinal hernia.’
“3. Said Ira E. Brown as a result 'of said injury was advised by his physician, Doctor Smith, of Lucas, to rest for a time and accordingly laid off from work for a period of nine or ten days; his hands were dressed by said physician and he made about four calls upon his physician as a result of his injuries.
“4. His last visit to his physician on account of this injury was" made on June 23, 1931, and soon thereafter he returned to his work as manager of said elevator and carried on-his work until October 12, 1931, at which time he had apparently fully recovered from the injury which he had received on June 15, 1931.
“5. On October 12, 1931, said Ira E'. Brown sustained an injury arising out of and in the course of his employment by slipping and falling against an automobile while carrying a 100-pound sack of shorts which he was delivering to a customer of said elevator company; said fall caused another injury to his right side and produced at once a strangulated inguinal hernia.
“6. On the night of October 12, 1931, Ira E. Brown was taken from his home in Lucas, Kan., to a hospital in Salina, Kan., and on October 13 underwent an operation for the hernia and remained in the hospital until October 30, 1931, when he was taken back to his home in Lucas, Kan.; the reasonable charges of the surgeon for said operation were $210 and the reasonable hospital charges were $90.70; Doctor Smith, of Lucas, who was called by claimant on the evening of October 12 made a charge of $2 for said call.
“7. The proximate cause of the necessity for said operation was the injury which Mr. Brown received on October 12, 1931. The injury of June 15, 1931, may have been a contributing cause, but if so it was a remote cause, and merely created a condition in the right side from which a hernia might be apprehended from a further slight injury.
"8. On September 3, 1931, Ira E. Brown made a written claim for compensation on account of said injury sustained by him on June 15, 1931, but erroneously stated the date of the accident as May 15, 1931.
“9. Within less than ten days after the accident of October 12, the S'hellabarger Mill. & Elevator Company received notice of said accident and of the time and place and particulars thereof.
“10. On November 4, 1931, Ira E. Brown made written claim for compensation upon his employer by letter marked ‘Exhibit F’; and again on January 7, 1932, Ira E. Brown made further written claim for compensation by letter to his employer marked ‘Exhibit I’; both these letters refer specifically to the surgical and hospital bills which accrued on account of the injury of October 12, 1931, and both of them were written and received within 90 days after that accident. Mr. Brown also made written claim for compensation to the workmen’s compensation commission on October 15, 1931, by letter of that date marked ‘Exhibit A.’
“11. On the 25th day of January, 1932, Ira E. Brown filed with the workmen’s compensation commission an application for the determination of the compensation due to him on account of his injury of June 15, 1931, in which there was no reference to any injury sustained by him on October 12, 1931.
“12. This application was heard by Hon. John W. Wood, an examiner for the commission at Russell, Kan., on February 18, 1932. On the hearing the claimant offered evidence as to the accident and injury of October 12; the defendants objected to the offered testimony because no such accident had been reported; that no claim was made for any such accident, it was not pleaded and was not mentioned in the claim and that the claim made was for compensation due on account of an injury June 15, 1931. The examiner reserved his rulings on these objections, but heard the evidence.
“13. On March 11 the commission awarded to the claimant $180, the amount due him for the scheduled compensation for traumatic hernia, and' the further sum of $8 to Doctor Smith, of Lucas, for medical services accrued within sixty days, on account of the injury sustained by claimant June 15, 1931.
“14. In its preliminary statement of the ‘History’ of the case the commissioner says: ‘No demand for compensation -was made for any injury on October 12, and nothing was ever said about any accident on that date to anyone connected in a responsible way with the respondent until a few days before the hearing.’ No reference was made in the findings of the commis sioner nor in the award made by the commissioner to the injury, or alleged injury, of October 12. The claimed injury of October 12 was simply ignored in the decision, with the exception of the foregoing reference in the history of the case; at the time of the hearing oral testimony was admitted concerning the written demand made November 4, 1931, but apparently the writing itself was not at that time produced; the written demand of January 7, 1932, was, however, offered in evidence.
“15. On March 26, 1932, the Globe Indemnity Company paid the award of 55180 made to Ira E. Brown on March 11, 1932, by draft of that date reciting that the award was ‘for all injuries received by him on or about the 15th day of June, 1931,’ and'said claimant executed a final receipt and release containing a similar recital, which was duly filed with the workmen’s compensation commission on April 4, 1932.
“16. On April 25, 1932, the claimant, Ira E. Brown, filed with the workmen’s compensation commission an application for compensation on account of the injury sustained by him of October 12, 1931, which was set for hearing at Russell, Kan., on May 20, 1931.
“17. On May 20, 1932, the insurance carrier filed a motion to dismiss said claim for the reason that the compensation commission was without jurisdiction to consider the same because all matters contained in said claim were considered by the commission in the hearing of February 18, 1932, and included in the finding, decision, and award of the commission made and filed on March 11, 1932, which award was paid in full on March 26, 1932.
“18. The examiner reserved his ruling on this motion and heard evidence as to the extent of the claimant’s injuries on October 12, 1931, from which the court, finds that in addition to the traumatic hernia the claimant received a permanent partial disability, not covered by the schedule, which has impaired his earning capacity 50 percent.
“19. On June 18, 1932, the workmen’s compensation commission rendered its decision on the claim for injury on October 12, 1931, in which it modified its award of March 11, 1932, by including in its findings a part of the ‘history’ of the case stated in the award of March 11, 1932, as follows: ‘That if the claimant met with personal injury by accident arising out of and in the course of his employment on October 12, 1931, that no written demand for compensation was made within ninety days after the alleged accidental injury’; and the further finding that ‘all the matters had been fully determined by the commission.’ The commission then sustained the motion of the insurance carrier to dismiss the claim.
“20. On July 5, 1932, the claimant appealed to the district court from the order of the commission modifying its findings and award of March 11, 1932, and from its order sustaining the motion of the respondent and insurance carrier to dismiss said claim for want of jurisdiction, and from all other orders of the commission of June 18, 1932.”
“Conclusions op Law
“1. The objection of the insurance carrier on February 18, 1932, to any evidence concerning any injury to claimant on October 12, 1932, was perfectly good; the insurance carrier did not in any way waive said objection nor in any way consent to any enlargement of the issues then before the examiner; the only issue at that time before the examiner for hearing was concerning an alleged injury to claimant on June 15, 1931.
“2. Although the examiner did, over objection, hear some evidence on February 18, 1932, with reference to an alleged injury to claimant on October 12, 1931, nevertheless the award made on March 11, 1931, is not under the circumstances an adjudication of the alleged injury of October 12, 1931.
“3. The commission’s modification on June 18, 1932, of the award m^de on March 11, 1932, did not have any retroactive effect so as to cut off plaintiff’s right to appeal from the award of March 11, 1932, as modified on June 18, 1932; the modification of June 18, 1932, changed the legal effect of the award made on March 11, 1932, and as modified showed that the examiner and the commission had considered the evidence of an injury to claimant on October 12, 1931, and had rejected the claim on its merits.
“4. Where a workman who is entitled to the benefits of the workmen’s compensation act receives two successive injuries on different dates and makes written claims for compensation after each injury, his written demands need not state the date of the accident for which he is claiming compensation.
“5. The claimant is entitled to $100 for medical, surgical and hospital treatment on account of his injury of October 12, 1931, and for his permanent partial disability he is entitled to compensation for 415 weeks at the rate of $7.50 per week, of which $780 should be paid in a lump sum and the remainder at the rate of $7.50 per week, subject to the provisions of section 28 of the compensation act. Judgment will be rendered accordingly.”
Judgment was entered thereon on October 24, 1934; and upon the same day notice of appeal was duly filed by the respondent and insurance carrier.
Specifications of error will be considered in the course of the opinion.
It may be well to clarify a few points here before we enter the consideration of the merits of the appeal. It should be noted that the first injury of June 15 was designated as traumatic incomplete inguinal hernia. Traumatic hernia is specifically scheduled under the compensation act. The schedule does not distinguish between a complete and an incomplete hernia. It is simply scheduled “traumatic hernia.” The record indicates no complaint or dispute concerning the fact that the first injury designated traumatic incomplete hernia was compensated in the same manner as traumatic hernia is compensated under the schedule. We are not deciding they are the same. We simply say they were apparently treated as the same. The first injury having been adjudicated and paid is not in dispute.
Strangulated hernia or the complications probably resulting therefrom as disclosed by the evidence, which were the result of the second injury, are not specifically scheduled in the act. Medical testimony as to the difference between the two injuries is seriously lacking in the record before us. The trial court, however, found that in addition to the traumatic hernia the claimant received a permanent partial disability, not covered by the schedule, which has impaired his earning capacity fifty percent. (Finding 18.) That finding is conclusive here.
There is no complaint made here concerning the amount allowed for the second injury. The contention of appellants is that under the circumstances and procedure followed by claimant, he cannot recover for the second injury.
Appellants have ushered their contentions under three main headings. We shall consider them in the order stated.
Appellants say the first question for determination is. whether the findings, decision and award of March 11,1932, were a final determination of the claimant’s right to compensation on account of his accidents of June 15, 1931, and October 12,1931, or only a determination of his right to compensation on account of his accident of June 15,1931.
It is appellant’s contention that the application presented to the commission at the first hearing on February 18, 1932, was for compensation on account of both accidents and that all claims for compensation on account of both accidents were duly considered by the commission and fully and finally determined in the findings, decision and award made and filed by the commission on March 11, 1932.
The foregoing contention is, first, that the commission considered the second injury in the first hearing; second, that the commission by its findings, decision and award of March 11,1932, made full and final determination of claimant’s right to compensation for his second injury. The fact that evidence was introduced at the first hearing concerning the second injury is not in dispute. Under the provisions of our compensation act it was the duty of the examiner to hear the evidence, even though he entertained doubt about its competency, in order to make a full record as a basis for review. This was his duty because the act requires it. (Willis v. Shelly Oil Co., 135 Kan. 543, 11 P. 2d 980.)
The second contention of appellants that the commission by its findings, decision and award had fully and finally determined the right of the claimant to compensation for the second injury requires examination of the record. The trial court found not only that the commission made no findings and no award concerning the second injury in its award of March 11, 1932, but found further that the commission made no reference in its findings and award to the injuries of October 12. (Finding 14.) The only injury mentioned in the findings of March 11, 1932, is the first injury of June 15. It finds that compensation should be paid for twelve weeks for the first injury and the award is made in favor of claimant for twelve weeks at $15 per week or $180, which it ordered paid in a lump sum. The award further orders the payment of $8 for medical attention incurred as a result of the first injury. The findings and award both deal exclusively with the first injury. No mention or reference is made in them of the second injury. The draft in payment of the award is for $180, and expressly provides that it is in payment of the injuries sustained by claimant on the 16th of June, which was the date of the first injury. Above the indorsement on the back of the draft appears the following statement: “I accept this draft in full payment of compensation due me as stated on the face hereof.” The release contained similar recitals and was limited to the injury of June 15.
The only reference to the second injury is found in the history of the first injury. The history does not make a finding that the claimant was injured on October 12. It simply states that claimant testified he was injured on October 12.
Section 34 of chapter 232 of the Laws of 1927 provides:
“The award, finding, decision or order of an examiner when approved and confirmed by the commissioner and filed in the office of the commissioner, shall be deemed to be the award, finding, decision or order of the commissioner.”' (Italics ours.)
Appellants are correct in stating that they objected at the first hearing to any evidence being offered concerning the second injury. The examiner heard the evidence over the objection of respondent, but made no findings or award either allowing or denying compensation for the second injury.
Appellants say the district court apparently was not familiar with the rule under the compensation law, namely, that if no claim for compensation is made in the time and manner provided by the act, no award can be made. It is true that no affirmative award allowing compensation can be made under those circumstances, but it does not follow that an award is not made under the rules of the commission. The proper finding or award under such circumstances is, “award denied.” Such is the general practice of the commission when it denies an award. When the commission ruled upon the second injury after the hearing of June 18, 1932, it made its award and said, “award denied.” A question of law is presented for our determination. It is, whether the finding of the trial court that no finding or award was made on March 11, 1932, concerning the second injury, is correct. We are obliged to concur with the finding of the trial court that no reference was made in either the findings or award of March 11, 1932, concerning the second injury. We are further obliged to hold that on the face of those findings, award, draft and release, there was no final decision or adjudication of any injury except the first injury of June 15.
2. Appellants say the second question is, Did the commission or district court have jurisdiction to review or modify the decision and award of March 11, 1932?
On April 22, 1932, claimant filed with the commission his motion to set aside the previous award, release and settlement. On April 25 claimant filed his separate application with the commission for compensation on the second injury of October 12. The hearing on this application was set for May 20. At that hearing claimant announced to the examiner that he was not relying upon the motion to set aside the former release, award and settlement and that he would offer no evidence in support of "that motion. He offered no evidence on the motion. He further stated that he was standing on his application for compensation for the injuries of October 12. We therefore need not discuss the question of whether the commission had jurisdiction to review or modify its previous award.
Claimant was thereafter standing upon his right to compensation for the second injury alone, separate and distinct from the first injury. The district court was not obliged to review or modify the first award. The district court was obliged to review the decision and award of the commission made on June 18, 1932, which decision and award were based on the hearing concerning the second injury.
3. The third question raised by appellants is, Under the facts in this case, did the commission or district court have jurisdiction to make an award under the last application filed April 25, 1932?
It is appellants’ contention that claimant’s right to compensation for the second injury had been fully determined and adjudicated by the findings and award of March 11 and that claimant’s remedy was by appeal from those findings and that award. Appeal from what? Claimant did not seek an appeal on the award of March 11 as it pertained solely to the first injury. No findings, no award, no final ruling, no decision was contained in that award allowing or denying compensation for the second injury. The findings and award simply ignored the second injury. (Finding of trial court No. 14.)
Section 42 of chapter 232 of the Laws of 1927, as amended by chapter 206 of the Laws of 1929, reads:
“Any party to the proceedings may appeal from any and all decisions, findings, awards or rulings of the commission to the district court of the county where the cause of action arose upon questions of law and fact as presented and shown by a transcript of the evidence and proceedings as presented, had and introduced before the commission.” (Italics ours.)
The case of Willis v. Shelly Oil Co., 135 Kan. 543, 11 P. 2d 980, involved the duty of the commissioner to hear all evidence pertaining to the case and to make findings concerning the same. In discussing the subject of when a case before the commission was concluded and subject to appeal, this court said:
“When the hearing on all branches involved is concluded and a ruling is made thereon the case will be subject to appeal.” (p. 547.) (Italics ours.)
In the instant case the findings and award contain no ruling as to the injury of October 12. Even in the history of the case the record discloses that no finding was made as to whether claimant sustained an injury on October 12. It simply says that claimant testified that he sustained such injury.
In the case of Willis v. Shelly Oil Co., supra, the commissioner stopped the proceedings after having received evidence on the subject of a written demand and did not take testimony on the subject of the injury. His thought was that if it was decided that his ruling on the question of demand was correct, then there would be no occasion for taking evidence as to the injury. This court said he was obliged under the provisions of our compensation act to ■ take all of the testimony and make findings and rulings thereon in order to make it subject to appeal. In that case the commission did make a specific finding that written demand had not been made. In discussing the necessity for making a definite decision on each branch of the case the court said:
“With the evidence in on both branches of the ease, the decision on one branch may dispense with the necessity of making a finding or decision on the other branch. But the commissioner should hear all the evidence, that is, the evidence on all points involved, and until that is done and a ruling made, the case is not ready for appeal, but still stands as a case only partly heard and tried before the commissioner.” (p. 547.) (Italics ours.)
In the instant case no decision, no ruling, was made on March 11, .1932, whether claimant did or did not sustain injury on October 12. Nor was there a decision or ruling on the subject of whether claimant made written demand for the injury of October 12. The only reference to the demand feature is contained in the history of the case. Clearly the case as to the injury of October 12 was not subject to appeal.
The commission must have realized it had made no findings, no award and no. decision in its award of March 11 concerning the second injury. On June 18, 1932, it made its award on the hearing of May 20 concerning the second injury. This time the commission made findings denying an award for the second injury. Its grounds for denial were three. The first was that no written demand had been made as required by law. The district court found such written demand had been made on the employer for the second injury within ninety days after that injury. (Finding 10.) This court in compensation cases is limited to questions of law. (Willis v. Skelly Oil Co., 135 Kan. 543, 11 P. 2d 980.) The finding of the district court on the subject of demand is based upon substantial, competent evidence. Therefore as to- the question of demand there is not even a question of law presented for review. (Cornell v. Cities Service Gas Co., 138 Kan. 607, 27 P. 2d 228.)
The second reason given by the commission for denying compensation for the second injury in its award of June 18 was that the commission had no- jurisdiction to hear the motion of claimant to set aside the award of March 11 and the release filed by claimant after accepting payment for the injury of June 15. As previously indicated there was no need for a ruling by the commission on that subject as claimant had voluntarily withdrawn his motion concerning that matter.
The third reason given by the commission for denying claimant compensation for his second injury was that the injury of October 12 had been fully determined in the previous award. We have heretofore indicated that we think otherwise. Appellants have presented an able brief in this regard and on all other aspects of the case. Numerous decisions are cited. They have all received studious consideration. They are cases in which the findings and award specifically allow or specifically deny compensation. It is clear they do not quite reach the point at issue here. No cases are cited, however, and we have found none, in which it has been held that the rights of claimant are determined or adjudicated where no final decision is made by the commission. No cases have been cited, and our search has disclosed none, in which it has been held that an appeal may be predicated upon the record of the commission in which the findings or award contain no final decision or final ruling upon any of the necessary elements of the claim. The case of Willis v. Shelly Oil Co. holds squarely the contrary.
The result is claimant was without the remedy of appeal from the award of March 11 in regard to the second injury. The lack of the remedy of appeal was not his fault. He asked that the evidence of the second injury be heard at the first hearing. It was heard, but no appealable findings or award were made.
Now, shall it be said .that by reason of this fact claimant must go uncompensated for an injury which has resulted in a fifty percent permanent disability? We think not. He filed his application for the second injury with the commission on April 25,1932.
The commission for the first time made an appealable decision with regard to claimant's second injury. This time a decision was made. It was "award denied,” and for the reason heretofore discussed. Claimant appealed. The district court found in his favor. We see no good reason for disturbing the judgment rendered. It is affirmed.
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The opinion of the court was delivered by
Burch, J.:
The action was one by a minor, by his next friend, for damages for personal injuries sustained when plaintiff set fire to his clothing, on which gasoline had been spilled which had escaped from an oil refinery. A demurrer to plaintiff’s evidence was sustained, and he appeals.
The Standard Oil Company of Kansas owned and operated an oil refinery at the city of Neodesha. The corporation was dissolved, and for the purpose of winding up its affairs, its business and property vested in its trustees. They transferred to the Standard Oil Company of Indiana. The accident which occasioned the litigation happened while succession of one corporation to the other was in progress of consummation. The Kansas corporation, its trustees, and ■ the Indiana corporation, were made defendants. For convenience, the corporations will be referred to indifferently as “the oil company.”
The refinery occupied approximately 200 acres of land adjoining the city. Underground pipe lines forming part of the plant, of which there were many, would deteriorate and leak. From twenty to twenty-two feet below the land surface is a stratum of gravel in which water is found. Gasoline which escaped from pipes would reach this formation and appear on top of the water in wells in the city in the vicinity of the refinery. One enterprising citizen drilled three wells on his lots to the gravel with a' post auger, and from the wells he pumped and sold large quantities of gasoline and kept the money. Corrective measures adopted by the oil'company reduced the supply, and operation of the wells as gasoline wells became unprofitable and was discontinued. The oil company pumped some wells on private property, and recovered some gasoline, which was returned to the refinery. There was indefinite testimony regarding one lawsuit growing out of the pumping of gasoline by the oil company from a lot owner’s well, which was compromised in some way. There was testimony of one notification to the oil company regarding gasoline in a well, given some ten or twelve years before the trial, and there was testimony that some complaints of oil in wells were made in 1913 and 1914. There was no testimony that use of any specified water well, as such, was abandoned because of gasoline in it, and use of city water seems to have superseded use of well water without protest, as far as the evidence disclosed, by property owners. The refinery had been in existence thirty-six years at the time of the trial. There was no evidence that any fire or any explosion of gasoline or other petroleum product had ever occurred as a result of escape of gasoline, and there was no evidence of specific hurt or annoyance in recent years, either to the public generally, or to individuals, as the result of escape of gasoline from the refinery premises.
When the accident occurred, several wells in the vicinity of the refinery had gasoline in them. Shortly before the trial, one witness drew some gasoline from his well to kill potato bugs, and gasoline drawn from wells was used to operate automobiles.
Wayne. Ramey leased city lots approximately a block from the boundary of the oil company’s land, which he occupied with his sister and his son, Wayne. There was a well north and west of the house which contained gasoline. The well was two and one half to three feet in diameter, and twenty-three to twenty-five feet in depth to the gasoline. The well was walled with stone and brick, and was kept covered with boards. Ramey used gasoline from the well to operate his automobile. A supply taken from the well was filtered and kept for ready use in a barrel at the back of the lot, about forty feet from the well.
On the afternoon of October 15, 1932, Ramey came home in his automobile, and told his son he needed some gasoline in the automobile. Plaintiff, Carl Reece, was at the Ramey home visiting the boy, Wayne, and volunteered to help Wayne. Perhaps the two boys had been engaged in replenishing the supply in the barrel when the elder Ramey "arrived. The boys took eight gallons of gasoline from the barrel and filled the tank of the automobile. The elder Ramey then drove away. The two boys then either resumed or commenced the task of putting gasoline in the barrel. The method of operation was this: The covering having been removed from the well, Wayne would draw up gasoline from the well by means of a bucket and rope. The fluid would be filtered through chamois skin, held by Carl, into a gallon glass jar; the jar would be emptied into a five-gallon milk can; when the milk can was nearly full, it would be carried to the barrel, and the contents would be emptied into the barrel. When the automobile tank was filled, the barrel was tipped, gasoline was poured into a bucket, the bucket was carried to the automobile, and the contents of the bucket were poured into the tank through a large funnel.
At some time, in the handling of the gasoline, some of it was sprinkled or spilled on Carl’s right trouser leg. Before leaving, the elder Ramey warned Carl to be careful about gasoline, and told Carl it was exceedingly dangerous to have matches. After the elder Ramey went away, Carl found a match in his pocket. In order to get rid of the match Carl went some fifteen feet from the milk can and struck the match on a rock. His trouser leg took fire, and he was severely burned.
At the time of the accident Carl was twelve years and nearly four months old. He was a bright, intelligent boy, who understood things. Wayne Ramey was some years older. Carl knew he was handling gasoline, and knew it would burn, but did not know it' was so explosive, and did not know it could be set on fire without flame coming in contact with the fluid.
Gasoline is a fluid in common use by all classes of persons, and is in common use in home for various domestic purposes. The number of gallons consumed daily reaches astronomical figures. To supply this need, gasoline may be safely stored in quantity and safely distributed as required. While it is a dangerous substance, because of its inflammable and explosive character, peril lies only in the manner in which it is kept and handled. Nuisance is a condition, and so far as disclosed by the evidence, after years of experience, the gasoline which escaped from the oil company’s pipes and percolated to the water table of the neighborhood, was not in fact either a public or private nuisance on account of its inflammable and explosive character. The result is, plaintiff may not recover on the strength of an opprobrius name. He can recover only for breach of duty to him, or to the class to which he belonged — inexperienced boys — to keep the fluid in such a manner foreseeable personal injury by fire would not occur. Manifestly the oil company did that. The gasoline was inaccessible to boys manifesting normal boyish proclivities. Even Ramey, who impounded a quantity of the wandering fluid at the bottom of a deep, walled and covered well, was not guilty of maintaining a nuisance, and was not even guilty of negligence.
The oil company might foresee that escaped gasoline would spoil the water of wells in the vicinity of the refinery, but that is not the type of harm involved, and danger of personal injury by fire from the gasoline, as the oil company left it, was not within the range of reasonable foresight.
Under the circumstances which have been narrated, the oil company might foresee that an occupant of land in the vicinity of the refinery, whose well contained gasoline, would exercise the dominion of an owner and would appropriate the fluid to uses to which it was adapted, as Ramey did. But there was no notice that the practice was resulting in or threatening personal injury to anybody, and that appropriation would expose boys at large in the city to the hazard of fire was no more to be foreseen than if the oil company had sold to Ramey a can, or a drum of gasoline, or a larger quantity delivered in his underground tank. Manifestly distributors of gasoline are not responsible for the manner in which it is subsequently kept and used, unless it is disposed of to a person known to be unfit to handle it.
The circumstances under which the accident did happen ]vere quite peculiar. After he had been warned concerning matches, Carl discovered a match in his pocket. He concluded he would get rid of it. He went away from the place where ignition of gasoline might be expected to occur, to strike his match. While he gave a remarkably clear and detailed narrative of the events of the afternoon at the Ramey home, he could not account for the gasoline on his clothing; and it so happened Carl himself unwittingly carried away to a place remote from the normal place of danger the gasoline which he himself unwittingly set on fire.
It was not essential that the oil company should foresee that injury would occur in the precise manner in which it did occur, but risk that a boy would somehow be burned was not a normal risk attending accumulation of gasoline in Ramey’s well. The result is, the oil company was not negligent with respect to plaintiff. This conclusion renders it unnecessary to discuss the subject of legal cause.
Plaintiff cites and relies on the case of Clark v. Powder Co., 94 Kan. 268, 146 Pac. 320. The case is not in point. In that case the agent of a powder company, engaged in manufacture of high explosives and in the business of shooting oil wells, shot an oil well with solidified glycerine. The work completed, the agent left a quart of the explosive at the well. A son of the owner of the land on which the well was shot found the explosive, and fearing injury to himself, took it away and partially concealed it in a crevice in a stone fence surrounding an abandoned burial place remote from any habitation. Some boys found the explosive. One of them struck the article with a rock to break it up, and was severely injured. A judgment for damages against the powder company was affirmed by this court. The grounds of the decision, which was sound, both on reason and authority, were fully stated in the opinion by Mr. Justice Dawson. We have no such case here. The solidified glycerine was a substance which was not in daily use by the public generally. It could not be handled at all with safety except by experts, and a quantity of the substance was left at a place where it was inevitable it would be found and handled by persons not qualified to do so. Gasoline is not in the class with the various kinds of dynamite, and in this instance the oil company emphatically did not leave the gasoline exposed to intermeddling by incompetents.
Plaintiff cites and relies on the case of Snyder v. Light Co., 98 Kan. 157, 157 Pac. 442. The case is not in point. In that case the light company maintained an uninsulated high-voltage wire in a city street. A woman discovered a boy fifteen years old sitting on the stone coping of the yard in front of plaintiff’s house. The boy was dead and his clothes were on fire. The woman screamed and called for help, and plaintiff rushed out of her house to aid the boy. When she touched the boy she was severely shocked and burned. She recovered a judgment for damages against the light company, and the judgment was affirmed by this court. The boy had tied a rock to the end of a small silkrwound wire, and had thrown the rock over the uninsulated high-voltage wire. There is no similarity between the conduct of the light company in that case and the conduct of the oil company in this case.
This case is not in the same category with the gas-explosion cases. In those cases the explosive substance is disseminated by means of defective appliances in places where contact with fire is likely to occur, and one of the risks is conduct of some grown-up with a child’s I. Q., who, when he smells gas, strikes .a match to find the place of escape.
In this case, no matter how the gasoline escaped from the refinery, it accumulated and was confined in a place which was not attractive to boys, and was not the customary scene of boyish activities. The place of confinement was one where contact with fire, whether of boyish origin or otherwise, was neither natural nor probable. Nothing the oil company did portended personal injury to anybody through contact of the gasoline, or gasoline vapor, with fire.
The gasoline was taken from the perfectly safe place in which the oil company kept it, was safely brought to the surface, was there safely handled, so far as proximity to fire was concerned, and nothing which Ramey did portended personal injury to anybody through contact of the gasoline, or gasoline vapor,' with fire.
Looking forward from the standpoint of the oil company, when it suffered escaped gasoline to accumulate in Ramey’s well, and looking backward through the series of events ending in injury to plaintiff, risk of harm to plaintiff or any one of his class, from the inflammable character of gasoline, as it was maintained, was altogether too conjectural to form the basis of a charge of negligence against the oil company.
The demurrer to plaintiff’s evidence was properly sustained, and the judgment of the district court is affirmed. | [
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The opinion of the court wás delivered by
Hutchison, J.:
This appeal is from a judgment for plaintiff in an action for an.ordinary foreclosure of a mortgage.
The statement of the case by the defendants, who are the appellants here, in their abstract, disposes of some of .the law propositions submitted to the trial court and argued here as errors made by that court. It is said in the statement that John W. Cloninger,' one of the defendants, mortgaged his farm in Labette county on April 31, 1923, to secure his note of $5,000 payable in ten years to the Fidelity Savings Trust Company. The amended petition pleads these matters, but it is strongly urged the petition should have been made more definite and certain, and the demurrer thereto should have been sustained because the petition failed to state that the registration fee had been paid on the mortgage, without which it could not be introduced in evidence nor could judgment be rendered thereon. The statement gives the date of the note secured by this mortgage as April 11, 1923. The registration fee law (R. S. 1933 Supp. 79-3107) was enacted February 23, 1925, and made to apply only to all mortgages executed on or after March 1, 1925. So the matter of paying the registration fee is not involved in this case. (Brattleboro Savings Bank v. Arbegast, 142 Kan. 293, 46 P. 2d 884.)
Another matter strongly urged by appellants is also disposed of by this statement. Appellants demanded a jury trial on the ground that the verified answer put in issue the indebtedness of the. principal defendant. The petition, like the statement, alleges that he executed a note for $5,000 which was secured by a mortgage. The verified answer does hot deny the execution of the note nor allege payment of the same. So the verified answer did not put in issue the execution of the note (Kimble v. Bunny, 61 Kan. 665, 60 Pac. 746), nor was a jury issue raised by the pleadings. (Union State Bank v. Chapman, 124 Kan. 315, 259 Pac. 681.)
The numerous other defects pointed out by the appellants as being in or omitted from the amended petition, including allegations as to corporate existence and trust relations, were not defects making the amended petition demurrable, and the rulings of the trial court thereon were correct.
Another point urged by appellants was the refusal of the trial court to postpone the hearing of defendants’ motion to take the case from the calendar of the court because the first motion day under supreme court rule 28 (now 45) was March 6, after the filing of notice of trial date was served on defendants on January 29, 1934, for trial on February 2, 1934. Defendants urge that under rule 45 of this court no motion can stand for hearing before the first motion.day following the fifth day after the filing of the same, which would be March 6, 1934, and that the court erred in ruling on these motions on February 2, 1934, and commencing the trial of the case on that day. Such a construction of rule 45 is not consistent with the preceding and subsequent rules showing the direct intent and purpose of the rules was not to delay the hearing of motions, but to require an expeditious hearing of all motions. The construction contended for by appellants would be out of harmony with the statute on this same subject, R. S. 60-2932, which is as follows:
“Action shall be triable on the issues of fact in ten days after the issues are made up. Issues of law and motions may be tried by the court or judge in term time or vacation, at such times as the court or judge may fix, after reasonable notice, which shall not be less than three days.”
The same contention was made later in the case with reference to the hearing of the motion of plaintiff to confirm the sale of the property made by the sheriff. The sale was made on June 5, 1934. Notice was served on defendants on June 21, 1934, to hear this motion two days later, or June 23. At that time the court declined to hear the motion because of the time of the notice being too short, but set the hearing for June 27, at which time it was heard, and the sale was then confirmed over the objection of the defendants, who argue and claim that it could not properly have been heard under the rule of this court until September 17, 1934, which was the first motion day after the service of the notice. Such was not a proper construction of the rule or the requirement of the statute.
Appellants insist that the certificate of the notary public to the depositions used by plaintiff in the trial does not comply with R. S. 60-2825 nor R: S. 60-2842 and is in violation of R. S. 60-2837. Neither the first nor the last of these sections concern the contents of the certificate, and no showing was made outside of the certificate itself as to the requirements of these two sections. R. S. 60-2842 states what the certificate shall contain, and there is no question in this case but that it does contain all that this section requires. The other two sections prescribe the qualifications of the officer taking the deposition and how it shall be taken. These are not matters to be set out in the certificate, If they are disregarded or violated, proof to that effect might be furnished by the party attacking the regularity of the taking of the depositions.
In Minnesota Tribune Co. v. Sway, 137 Kan. 352, 20 P. 2d 490, it was held:
“Our statute (R. S. 60-2842) does not require an officer before whom a deposition is taken to state in his certificate that he is not ‘a clerk or stenographer of either party, or attorney for either party.’ ” (Syl. HI.) (See, also, Tegarden v. Brown, 123 Kan. 603, 256 Pac. 986.)
We find no error in the admission of the evidence contained in the deposition of either of the two witnesses, nor as to the evidence concerning the payment of taxes, nor in the overruling of the demurrer to the evidence of plaintiff^
The trial court made extended findings of fact and followed them with conclusions of law. Appellants contend that the findings were not supported by sufficient evidence and were therefore erroneous. There was, in our judgment, sufficient evidence to support the findings, and the conclusions of law were such as could properly be based thereon.
Appellants contend that the publication of the notice of sheriff’s sale was illegal in not being consecutively published on Wednesday of each week, and in violation of the requirements of the statute authorizing legal publications to be made in daily newspapers (R. S. 64-102), the portion thereof which is here concerned is as follows:
“That all legal publications and notices of whatever kind or character that may by law be required to be published a certain number of weeks or days shall be and they are hereby declared to be legally published when they have been published once each week in a daily newspaper, such publications in such daily papers to be made upon Wednesday or Thursday of each week. . .
The publications were made Wednesday of each of four consecutive weeks and then the fifth publication was made on Thursday, presumably on account of the fifth Wednesday being a holiday, May 30. The date of the sale, as stated in each of the publications, was to be June 5, and the publications were made on May 2, 9, 16, 23 and 31, all being on Wednesday except the last, which was on Thursday. Does the section above quoted require that all the publications be on the same day of the week?
Appellants cite Boyd v. McFarlin, 58 Ga. 208, where the statute required the sheriff’s sale notice to be published weekly for four weeks in some newspaper, and it was there held that it was not a compliance with the requirements of the statute to publish it four times in four consecutive weeks instead of weekly for four weeks or twenty-eight days. Counsel for appellants also cite the later decision of the same court (Bird v. Burgsteiner, 100 Ga. 486) which refers to the amendment of the statute made in 1891, which eliminated the requirement of twenty-eight days intervening between the first and last publication and then construes the amended statute to mean just four weekly publications, regardless of the intervening time, and concluded the holding as follows:
“. . . hence the act, in referring to the publication to be made once a week for four weeks, means a calendar week, and if notice shall be made on any day of a calendar week, that shall be counted as a publication for that week; and this construction would allow a notice to be made on a day within the week when the sale is to take place, because the act expressly excludes computation of days.” (p. 491.)
This is not our case because R. S. 60-3416, requiring such publication to be made, does so by fixing the number of days for which the notice shall be given, viz., thirty days before the day of sale. Full compliance was made in the case at bar with this requirement (Bank v. Kennedy, 98 Kan. 51, 157 Pac. 417), but because the last notice was published on Thursday instead of Wednesday it would not seem to be in violation of the terms of the statute. The notices were published “once each week in a daily newspaper” and were “upon Wednesday or Thursday of each week.” (See Ronkendorff v. Taylor’s Lessee, 29 U. S. 349.)
Another objection made by appellants was to the confirmation of the sale. It was two-fold and involved the right of an agent or attorney to authorize another to act in his stead in carrying out the request of the plaintiff as to bidding at the sale, and the right of the sheriff to act in an individual capacity in making the bid requested by the plaintiff to be made. As early as Moore v. Pye, 10 Kan. 246, the latter right was recognized, and as late as Wright v. Providence Washington Ins. Co., 130 Kan. 438, 286 Pac. 237, the authority of an agent has been recognized to delegate to a subagent the execution of acts clerical or ministerial. The testimony heard by the trial court brings both these matters fully within the limitations of the last two decisions cited, .so that the announcing by the sheriff of the bid requested by the attorney of the plaintiff to be made was not a reason for setting the sale aside or refusing to confirm the sale.
Many other propositions are raised and discussed in the appellants’ brief, but we do not find error in the ruling of the trial court on any of them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment in an action to recover on a promissory note, where the propriety and result of incidental proceedings in garnishment became the principal matter in controversy.
The pertinent and explanatory facts which gave rise to this lawsuit may be thus summarized:
In 1933 the defendant Art Vansickle was a tenant farmer in Stevens county. There had been some domestic turmoil between him and his wife; she had separated from him for a time; but in 1933 she had returned to him upon an agreement that their farming affairs were to be managed by her and their grown son, Harry Vansickle. Their landlord, Bodecker, agreed to this arrangement in writing, thus:
“Nov. 1, ’33.
"It is satisfactory that Art Vansickle assigns lease over to F. G. Vansickle and Son on [lands described].
“Landlord: W. J. Bodecker.”
In accordance with the reconciliation agreement of Vansickle and his wife his bank account was informally assigned to his wife and son. Prior to such assignment it had, stood in the name of “Art Vansickle and Son.” Thereafter it stood in the name of “Van-sickle & Son”; and in December, 1933, certain wheat-allotment moneys issued by the government to Art Vansickle were handed over by him to Mrs. Vansickle and deposited in the bank to the credit of the account of “Vansickle & Son.” Certain debts of defendant were paid out of this deposit — seed loan, farm rent, and miscellaneous bills and charges. After the assignment of the bank account, Art Vansickle drew six checks on it which were honored and paid; but during the same period Mrs. Vansickle drew twenty-' one checks -and their son Harry Vansickle drew eighteen checks. Two small items of cash due Art Vansickle for pasture and feed prior to the reconciliation agreement between husband and wife, totalling $18.60, were deposited in the bank account of Vansickle & Son.
In August, 1933, defendant purchased an automobile from plaintiff, giving his promissory note due in ninety days in payment therefor. Defendant failed to pay, and this action was begun on December 26, 1933. Garnishment process was served on the bank, which answered that it was indebted to Art Vansickle in the sum of five cents, and no more. Plaintiff took issue on this answer, and the garnishee filed an amended answer, reciting some of the facts outlined above and averred that it was indebted to Vansickle and Son on checking account in the sum of $272.34 on the date it was served with garnishment process, but that—
“So far as this garnishee is informed this account is a partnership account and that said garnishee has been informed that the partnership consists of F. G. Vansickle and H. J. Vansickle.”
Plaintiff’s reply joined issue on the garnishee’s answer. Mrs. Van-sickle and Harry Vansickle filed an interplea, alleging that the moneys in the bank deposit to the credit of Vansickle & Son were their moneys; that they constituted a farming partnership; that defendant Art Vansiekle had no interest therein — excepting specific instances where they had authorized him to check on the account to pay for farm materials and supplies. Issues of fact raised by the garnishment pleadings were tried by the court. At the hearing, counsel for plaintiff remarked:
“My position on this is, I don’t believe the court would have authority and power to determine the garnishment matter until there is a judgment or trial [in the main case] coincident with the garnishment proceedings.”
The court made no ruling on this observation. Witnesses were called and testimony given on behalf of the interpleaders who assumed the burden. Evidence for plaintiff was then adduced, and the trial court found that aside from the items for pasture and feed ($18.60), which belonged to defendant and subject to garnishment, the balance of the deposit account was the property of the interpleaders and judgment was entered accordingly.
Plaintiff appeals, contending first that the issues in the garnishment proceedings should not have been decided until the.cause of action in the main case had been adjudicated. This contention is correct, but what of it? The obvious reason for this rule of the civil code which directs that no trial shall be had in the garnishment action until the plaintiff shall have judgment in the principal action (R. S. 60-951) is that unless the plaintiff does recover judgment in the principal case it is of no importance to the garnishor whether the garnishee has or has not any money or other effects belonging to the defendant debtor.
But how is the plaintiff hurt in this case because the trial court departed from the rule of the code and tried and adjudicated the garnishment issues before judgment for plaintiff was rendered in the main case? The issues of fact touching the ownership of the bank deposit standing in the name of Vansiekle & Son were fully tried and decided; and, however dissatisfied plaintiff may be as to the result, it is not suggested that another trial would bring about a different result — so far as this lawsuit is controlled by a determination of any dispute of fact.
Plaintiff’s second contention is that “exemption” of the deposit from garnishment was neither pleaded nor proved. That may also be conceded. Plaintiff’s criticism of the trial court’s reference to “exemption” is based upon the following recital in the journal entry of judgment:
“Thereafter, and on June 27, 1934, the court having considered the evidence adduced and the law applicable to the issues involved in said hearing concludes and finds, that . . . the Moscow State Bank, a corporation, holds the balance of funds derived from' a wheat-allotment check, and that the same should be released from said garnishment by reason of being exempt, and that the interpleaders acquired title to such funds by reason of the transfer thereof by defendant, Art Vansickle.”
Whatever “exemption” privilege may have sanctified the wheat-allotment money prior to and during its passage from the control of the federal government until it reached the hand of defendant, it thereafter became part of the common mass of property within this state and subject to civil process under state law. See the analogous case of State, ex rel., v. Shawnee County Comm’rs, 132 Kan. 233, syl. ¶ 4, 294 Pac. 915, and citations. But be that as it may, the evidence to which the trial court gave credence was that prior to the commencement of the garnishment proceedings the moneys in the bank account which plaintiff sought to subject to garnishment had been assigned to Mrs. Vansickle and her adult son; and the elementary rule is that, garnishment proceedings will only reach and sequestrate moneys, credits and the like which actually belong to the debtor, not such as have already been transferred to another person in good faith. (Eggers v. Ross, 103 Kan. 812, 176 Pac. 655; H. & M. Tire Service Co. v. Combs, 140 Kan. 35, 34 P. 2d 943.)
Another contention of plaintiff is that the demurrer to the evidence in behalf of the interpleader should have been sustained. Without quoting excerpts from the record, we think the testimony of Mrs. Vansickle and the evidence inherent in the landlord’s agreement to accept herself and her son as farm tenants in lieu of defendant, and the relatively large dominion she and her son exercised over the wheat-allotment money after defendant delivered it to them and after it was deposited in the bank, and the seemingly credible and plausible explanation of the few checks drawn on the fund by defendant thereafter — these and other corroborating incidents fully justified the trial court’s ruling on the demurrer to the interpleader’s evidence.
, There is nothing further in this appeal to justify discussion. No prejudicial error is made to appear, and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was a divorce action brought by Robert Moffett against Evelyn Moffett, in which he alleged as grounds extreme cruelty and gross neglect of duty.
The case was initiated before Judge William H. McCamish, judge of division number three of the district court of Wyandotte county. After it had proceeded for a time the court postponed it in order that appellee might get additional evidence. When it came up for trial again it was in division number two, presided over by Judge Clyde C. Glandon, who tried the case to the end and rendered final judgment.
The parties were married in Pueblo, Colo., in the month of December, 1919, and have been husband and wife since that time. Each party had been married before. She had been living in Newton, but shortly after their marriage they made their home in Kansas City. They appeared to live in harmony for a short time. He was employed as a porter for the Atchison, Topeka and Santa Fe Railway Company, and had a run from Kansas City to Wellington and Newton.
In support of his charge of extreme cruelty he testified that in 1929 they drove to St. Joseph, Mo., with two friends. On the way there she drove the car and seemed to be trying to pass everyone on the road. He told her not to drive so fast and she called him “ignorant and crazy,” and said he could not tell her how to drive. Out in the country she drove fast and turned the car over in the ditch. She cursed him at that time and used vile language in the presence of their friends. It hurt plaintiff’s feelings and brought distress. He was not used to such language. He testified of an occasion the following year, in June, 1930. She acted as though she was sick, and when he asked her if she was sick she began cursing and hitting him, and tried to get a gun. He had a little police dog and during the encounter warned her to watch the dog. She then cursed the dog; grabbed a waste basket full of paper and struck him on the head. This experience had the effect of making plaintiff sick and he had to lay off his job for some time.
Plaintiff further testified that she received calls from strange men, complaining about their not having met her; they squabbled over the telephone in his presence and in his home. She refused to cook his meals; refused to allow him to get into his own icebox. He went to get a drink and she shoved him away from the cabinet. He started to cook his own meals and she said she would get a gun and “blow his damn brains out.” She started going out nights in 1930. When plaintiff asked her where she had been she would say she had been over to town; or that she was grown and did not have to tell him. That occurred frequently. Plaintiff was away three nights a week and every time he came home after that she would stay out all night.
Plaintiff had a niece living in the house, Marie Moffett. They had a beauty parlor in the house, and had a couple of boarders for one season. Defendant got the money. She used it for her own benefit, not for the benefit of the house. Plaintiff did not know what she did with the money. She went to Chicago once or twice. She went to Los Angeles, and wherever she wanted to go. She went to Los Angeles in 1928 and stayed there two months. Plaintiff asked her to come back. Plaintiff paid her expenses for two months in Chicago and for a couple of months in Brooklyn, N. Y.
There was a change of judges in the trial, from Judge McCamish to Judge Glandon, and this gives rise to a claim that the subsequent judge was not informed as to what had been given when his predecessor had it before him. It is well settled that in the administration of justice the subject is not affected by a change of judges. In Kansas City P. & L. Co. v. City of Elkhart, 139 Kan. 374, 31 P. 2d 62, it was said:
“Court officials come and go, but the institution remains. Rights of litigants in court are neither enhanced nor curtailed by a change of judges. When one judge vacates the bench, whether he is the regular judge, or pro tempore, or pro hao vice, his successor takes up and dispatches all pending judicial business, except where he may be disqualified because of interest in the litigation:” (p. 376.) See, also, Madden v. Glathart, 115 Kan. 796, 224 Pac. 940.
In In re Day, 129 Kan. 14,18, 281 Pac. 865, it was said:
“The continued existence and identity of the court was not affected by a change of judges. The court does not resign or die and does not become defunct by the absence or change of its functionaries. The incoming judge had power to take up and dispose of unfinished business as fully as his predecessor could have done if there had been no change of judges.”
Most of the testimony was heard by the judge who subsequently tried the case, and it appears from the record that it was tried out by the subsequent judge quite fully and was heard by him as fully as if no change had been made. Some of the testimony was repeated several times and was heard as completely as if no change had been made in judges. It may be assumed that the judge was fully informed as to what had transpired before the first judge who acted in the case, and having been informed as to that matter he decided the case and entered judgment granting the divorce to the husband. The judgment is warranted by the evidence.
In an answer which she had filed defendant finally asked a divorce from her husband on account of his cruelty and gross neglect of duty, but the court concluded that she was most at fault and granted plaintiff a divorce from her. There were some questions as to whether he had corroborating evidence of her faults. There was some corroborating evidence of the charges made in the husband’s testimony, and the court considered the storms of cursing and swearing and calling of names by defendant, but said in deciding the case:
“I don’t care to comment particularly upon the testimony by which I arrive at the conclusion I have arrived at; and I don’t think it is necessary for me to give the various reasons I have for my decision in- the matter; but I think in this case the divorce should be granted to Mr. Moffett. That disposes of the divorce matter.”
The court remarked that it was impossible for the people to live together as husband and wife, and therefore the divorce was granted.
Then there is another thing that will be mentioned later — that she is not entitled to question the order granting a divorce. She is appealing on the allowance of alimony that was granted to her, and is not particularly questioning the divorce on the ground on which it was granted. She was allowed the furniture in the nine-room house and then the court gave her the certificate of the United Securities Company, on which $305 had been paid, free and clear of the lien and claim of the plaintiff. The nine-room house had considerable furniture; all the rooms were adequately furnished. It is remarked that she said it would not bring more than $100, but it was worth much more than that, and it was estimated to be worth about $1,000. The court appeared to think that he was dividing the property equitably between them. The house was worth about $2,000 and the automobile, which was bought in 1928, about $150.
A small difference in the amounts awarded to each of the parties would bring the amounts about equal. There is testimony that the certificate on which $305 had been paid was in her possession or that of her attorney, but has not been assigned to her by the plaintiff. The court determined that plaintiff should pay the costs of the action, and when these are considered there is little chance for claiming that there is much difference in the amounts awarded. The divorce having been granted to him, the costs might have been assessed to her. There was the house given to him that was estimated at $2,000, then the old automobile which is estimated at $150, altogether $2,150. If she got the furniture, estimated at $1,000, and the certificate, and if we consider the costs of the case, which were not estimated, as having been assessed to her, this would cover a good deal of the difference in the amounts awarded to each of them.
However, she is appealing and has acquiesced in the judgment. She is asking for an appeal and has received the property awarded to her. She has gone to the house where it was kept and taken possession of it. She admits that she took possession of the property awarded to her, and has it in her exclusive control now. It is no longer in the control of the court, and she has possession of it as fully as if she did not intend to appeal. If she intended to appeal she could have so announced and left the property where it had been, but when-she took possession of it she acquiesced in the judgment, and within the authorities, only some of which are cited, she lost her right of appeal. (Wolf v. McMahon, 26 Kan. 141; Fenlon v. Goodwin, 35 Kan. 123, 10 Pac. 553; Pazer v. Davis, 104 Kan. 403, 179 Pac. 309; Bank v. Bracey, 112 Kan. 677, 212 Pac. 675; Fadely v. Fadely, 128 Kan. 287, 276 Pac. 826; Simon v. Crow, 131 Kan. 638, 293 Pac. 400; Paulsen v. McCormack, 333 Kan. 523, 1 P. 2d 159; Wilhite v. Judy, 137 Kan. 589, 21 P. 2d 317; Mann v. Mann, 140 Kan. 538, 38 P. 2d 147; 3 C. J. 665.)
It follows that the action of the defendant operates to cure any 'errors, if any there were in the judgment, and that the appeal is therefore dismissed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order and judgment of the trial court overruling a demurrer to a petition in an action to recover taxes paid under protest. The tax involved is that imposed on plaintiff’s property in Greenwood county by the 1933 levy for delinquent state taxes. Broadly speaking, two points are argued: (1) The constitutionality of the statute under which the levy was made, a'nd (2) the effect on the validity of the levy of the fact alleged to be true that the delinquent taxes had been paid before the levy in question was made and extended upon the tax rolls.
The pertinent allegations of the petition shortly stated are: That plaintiff owned property in Greenwood county of the assessed value in 1933 of $841,505; that the state and county taxes levied on such property for that year amounted to $11,788.53, one half of which was payable by December 20, 1933, and the other half by June 20, 1934; that the ordinary rate of state taxes for that year was 2.65 mills per dollar, but in addition thereto there was levied, under R. S. 79-2917, an additional tax, commonly designated the state delinquency tax, at the rate of .61 mills per dollar, making the total rate for state taxes 3.26 mills per dollar; that the amount of tax imposed against plaintiff’s property on account of this delinquency rate was $513.32; that this was imposed because of the claimed delinquency in the state tax of 1931 not collected and paid over to the state treasurer by November, 1932, as provided by R. S. 79-2201 and R. S. 79-2203; that in December, 1933, plaintiff paid, under a written protest to be mentioned later, the first half of this tax in the sum of $256.66; that the delinquency levies for state taxes in the various counties of the state for 1933 were not uniform, some having no such tax, the state rate being 2.65 mills per dollar, others having different rates for the delinquency state tax, the highest state rate in any county being 3.63 mills per dollar. Appended to the petition was a table showing the state rate in 94 counties. It is alleged that plaintiff and other taxpayers similarly situated were subjected to an unequal, nonuniform, unlawful and invalid tax, which as to plaintiff was the tax in question; that the imposition of such tax is contrary to and in violation of section 1 of article XI of our state constitution, and that to require plaintiff to pay such tax would be to deprive it of its property without due process of law and to deny it equal protection of the law, contrary to the fourteenth amendment to the federal constitution.
Plaintiff alleged the levy and imposition of the tax was invalid for the further reason that although the state auditor, on or before the second Monday of July, 1933, certified to the county clerk that there was a delinquency payable to the state treasurer on account of state taxes for 1931, not collected by November, 1932, in the sum of $12,361.50 for the state general fund and $3,345.29 for the soldiers’ compensation fund, pursuant to R. S. 79-2917, yet prior to the time of such certification there had been collected from the 1931 tax levy and tax of prior years by the county treasurer, for the account of the state, an aggregate amount in excess of the certified deficiency, all as more fully shown by an exhibit attached to the petition; that as a result of this the so-called delinquency in tax funds due the state from the county, so certified by the state auditor to the county clerk, was not a delinquency in fact; that such delinquency did not exist at the time of the certification, and there was no necessity or justification for imposing the delinquency tax on the taxpayers; that if R. S. 79-2917 and R. S. 79-2201 be construed to require the levy of a tax for nonexistent delinquencies the effect thereof is to impose a nonuniform and illegal rate of taxation for state purposes and to impose a greater rate of taxation for state purposes upon plaintiff and other taxpayers in Greenwood county than is imposed upon other taxpayers whose property is situated in other counties, contrary to section 1 of article XI of our state constitution, and that the effect of such action is to deprive plaintiff of its property without due process of law, and to deny it the equal protection of the law, contrary to the fourteenth amendment of the federal constitution. It further is alleged plaintiff had made its demand upon the board of county commissioners of the county for a refund of the taxes, which demand had been refused.
We now take up the legal questions. The first of these is the constitutionality of R. S. 79-2917. This question was specifically presented in the written protest filed by plaintiff at the time it paid the tax now sought to be recovered. R. S. 79-2917 was enacted in 1885 (Laws 1885, ch. 199, § 6). It is one of several sections of our statutes providing for the assessment, levy and payment of state taxes; what to do when there are delinquencies in payment by the owners of taxed property; what to do with surpluses, if any, of taxes paid. That such delinquencies or surpluses may exist is common knowledge. Any fairly accurate tax system- — and that is all the best of them are — must take these contingencies into account. The general outline of the plan is this: The state tax commission, which has general supervision of the system of taxation throughout the state (R. S. 79-1402), having performed the many duties required of it by statute (R. S. 79-1404 and other sections), ascertains the assessed value of all the taxable property in each county in the state, and from appropriations and other legislative acts ascertains the amount necessary to be raised for state purposes by a tax on property. It is then required to “apportion the amount of tax for state purposes as required by law to be raised in the state among the several counties therein, in proportion to the valuation of the taxable property therein.” (R. S. 79-1409 [see Supp.].) Each county is responsible to the state for the full amount apportioned to it to be raised by taxes for state purposes. (R. S. 79-2203.) The board of county commissioners levies the tax (R. S. 79-1802). In doing so it must use the valuations fixed by the state board as a basis for the levy (R. S. 79-1409). In this case it appears all this was done in 1931 in harmony with these statutes. The taxes levied for that year were due November 1, 1931 (R. S. 79-1804), and payable one half by December 20, 1931, the other half by June 20, 1932 (R. S. 79-2004). Provision is made for collecting unpaid taxes on personal property under tax warrants (R. S. 79-2101 et seq.) and for the sale of real property for unpaid taxes (R. S. 79-2301 et seq.). All these efforts to collect the taxes levied in 1931 normally would be completed before November, 1932, but it is quite possible some taxes levied in 1931 would not be collected by that time. Naturally the functions of government could not stop for that reason. It was appropriate for the legislature to provide for such a contingency. It has done so in this manner (R. S. 79-2201): In November of each year, or immediately after the annual settlement of the county treasurer with the county commissioners in October, the county cleric shall prepare and forward to the state treasurer and state auditor a statement showing the total state tax collected, the amount paid the state treasurer and the balance of state taxes remaining in the county treasury. The county treasurer is not required to pay into the state treasury more state taxes than shall have been collected in the county. (R. S. 79-2204.) If, after the settlement with the county treasurer in November there remains due from the county any portion of the state tax levied for the preceding year, the state auditor, by the second Monday of July of the next year, shall report the amount of the unpaid taxes to the county clerk, and he shall determine the rate necessary to raise the amount and place the same on the tax rolls, in addition to the regular levy for state purposes, and the same shall be collected by the county treasurer and paid into the state treasury as other state taxes. (R. S. 79-2917.) If the county clerk neglects or fails to do so he forfeits certain penalties and may be removed from office. (R. S. 79-2919.) When by virtue of these provisions the county treasurer shall have paid into the state treasury the full amount of state taxes apportioned to the county for any year, the excess of state taxes collected shall be applied to the payment of the amounts of state taxes apportioned to the county for succeeding years. (R. S. 79-2918.) R. S. 19-539 appears to make a different disposition of surpluses of taxes collected, but, without passing on its validity for some purposes, we hold that it has no application here. There is also a provision (R. S. 79-2913) that if the county treasurer should pay into the state treasury a greater amount than the state tax due from that county for any year the state treasurer at the close of the fiscal yéar shall credit such overpaid amount to the county upon taxes thereafter to become due to the state.
The form used by the state tax commission in apportioning the amount of state taxes among the several counties of the state, and so certifying such apportionment to the county clerk, sets out the rates used by the tax commission in arriving at the amount. Naturally this is the proper rate for the county commissioners to use in making the levy of taxes for state purposes if the county treasurer does not have an excess of state taxes previously collected. In the event there is such an excess, that should be taken into account by the county commissioners in fixing the rate of levy of taxes for state purposes. Hence, R. S. 79-2917 and R. S. 79-2918 are designed to apply only to those situations when, on the one hand, in some county there is a delinquency in the collection of the amount apportioned to that county to be raised for state purposes; or, on the other hand, when by virtue of the various statutes pertaining to collection of taxes for state purposes there is in the county treasury an excess of the amount of state taxes apportioned to that county.
Plaintiff’s specific contention is that R. S. 79-2917 violates section 1 of article XI of our constitution, which so far as here pertinent reads: “The legislature shall provide for a uniform and equal rate of assessment and taxation; . . .” It is argued that this requires the tax rate to be equal and uniform throughout a taxing district; that the state as a whole is and of necessity must be the taxing district for the assessment, levy and collection of taxes for state purposes, and that to have a higher rate for state taxes in some counties than in others violates the constitutional provision that the rate must be uniform and equal. In this connection it is contended that R. S. 79-1409, requiring the tax commission to apportion the amount to be raised for state purposes among the several counties of the state, and R. S. 79-2203, which makes each county responsible to the state for the full amount so apportioned, are invalid for the same reason. It is argued the county is not a taxpayer; it collects taxes; the property owners are the taxpayers. The points argued, while forcefully put, are not new. These statutes, with no change in their fundamental purposes, have been in force in this state, and constantly used, for half a century or more (see Laws 1876, ch. 34; Laws 1885, ch. 199), except that some of the duties now performed by the state tax commission, created in 1907 (Laws 1907, ch. 408), formerly were performed by other state officers. The constitutionality of these .statutes appears first to have been passed upon by our court of appeals in Railway Co. v. Williamson, 8 Kan. App. 711. They were there considered and held to be valid, and specifically, as not being in violation of section 1 or section 3 of article XI of our constitution. That conclusion was followed by the same court in Clark v. Railway Co., 8 Kan. App. 733. The Clark case was appealed to this court (Railway Co. v. Clark, 60 Kan. 831, 58 Pac. 561), where the question was again examined, and the conclusion reached by the court of appeals in both cases was approved as to the validity of these statutes. How ever, this court, in State, ex rel., v. Bailey, 56 Kan. 81, 83, 42 Pac. 373, previously had referred approvingly to the statute authorizing state taxes to be apportioned among the counties. In Harper County v. Cole, 62 Kan. 121, 61 Pac. 403, the correctness of the conclusion of the court in Railway Co. v. Clark, supra, was challenged and the court was asked to reexamine the question, and did so. In an opinion written by Chief Justice Doster the various sections of the statutes relating to the levy and collection of state taxes, apportionment of them to the county, and the liability of counties for the sums so apportioned, were considered and their validity sustained. Among the sections so considered was section 6 of chapter 199 of the Laws of 1885 — now R. S. 79-2917. (See, also, to the same effect: Crebbin v. Weaver, 71 Kan. 445, 80 Pac. 977; Railway Co. v. Reno County, 87 Kan. 555, 556, 125 Pac. 108; Kearny County v. Davis, 88 Kan. 858, 129 Pac. 942; Clay County Comm’rs v. French, 139 Kan. 815, 33 P. 2d 312.)
The trial court in this case correctly held plaintiff’s contention that R. S. 79-2917 violates section 1 of article XI of our constitution is not well taken, being foreclosed by our former decisions.
Plaintiff cites and relies strongly on the decision of this court in State, ex rel., v. Leavenworth County, 2 Kan. 61, which held invalid an act of the legislature of 1863 (Laws 1863, ch. 63), which undertook to require a tax to be levied to take up delinquencies in the collection of state and territorial taxes for several years back to 1858. It was not a part of the plan provided by law for the levy and collection of taxes at the time the taxes alleged to be delinquent were in fact levied. A number of things were found to be wrong with the act. We need not recapitulate them here. This decision was held (Railway Co. v. Clark, supra) not to apply to the statutes here in question. These statutes are a part of the general plan provided by the legislature for uniformity and equality in the rate of assessment and taxation which our constitution (section 1 of article XI) requires. No contention is made that there .was any lack of uniformity or equality in the assessment and levy of state taxes in 1931, the thing to which the constitutional provision applies. The manner of apportioning the state taxes among the several counties according to the assessed value of the taxable property in each county is a common provision in tax schemes (3 Cooley on Taxation, 4th ed., § 1016). The matter of delinquencies in payment, or surpluses in collection of taxes, is encountered in any scheme of taxa tion. The fact that provision is made for such situations does not detract from the uniformity of the plan. This is the substance of our earlier holdings, and it conforms to our present view. In short, these statutes provide if there are delinquencies in payment an added sum, to the extent of the amount needed to maintain the functions of government, must be collected, but when there are surpluses in collections, by reason of the added sum collected or otherwise, that is credited on the amount next to be collected. This enables the government to continue to function through periods of depression or affluence. The plan is uniform throughout the state, and was a part of the law when the 1931 state tax was determined and assessed. It is quite possible, in operating under this plan, that the surplus plaintiff alleged had accumulated by July, 1933, has already been credited on the state tax from this county in 1934, or will be this year, so that plaintiff already has or will soon receive the benefit of it; certainly this is not negatived by any allegation in the petition. We find no reason to hold R. S. 79-2917 to be in violation of section 1 of article XI of our constitution.
Plaintiff’s second point is that by July, 1933, when the state auditor certified to the county clerk the delinquency in the collection of state taxes of 1931, reported by the county clerk to him in November, 1932, the delinquencies in the state taxes of 1931 and all prior years had been paid in full, hence that the levy made in 1933 on account of such delinquency was invalid; that if R. S. 79-2917 and R. S. 79-2201 be so construed as to require a levy for such fictitious and nonexisting delinquencies, they violate section 1 of article XI of our constitution; and it is argued such an application of the statutes would cause them to violate other sections of our constitution, specifically section 5 of article XI, which provides that no tax shall be levied except in pursuance of law, which shall distinctly state the object of the same, to which only such tax shall be applied. There are two answers to this contention: First, this point was not specifically made by plaintiff in the written protest filed by it at the time the tax was paid which it now seeks to recover. The statute (R. S. 1933 Supp. 79-2005) requires the protest to be made in a written statement "clearly stating the grounds on which the whole or any part of said taxes are protested, and shall further cite any law, statute, or facts on which such taxpayer relies. . . .” The protest filed does not give ás a ground for protesting the tax the fact, alleged in the petition in this action, that all delinquent state taxes for 1931 and prior years had been paid by July, 1933, when the state auditor made his certification to the county clerk;- nor does it allege that R. S. 79-2201 is invalid, nor does it allege that section, or R. S. 79-2917, violates section 5 of article XI of our constitution. Plaintiff contends there is some general language in the written protest which covers these things. We are unable to find such language in the written protest, and certainly no such grounds of protest were clearly stated, nor the statute or constitutional section cited. Plaintiff argues that since the protest statement was clearly sufficient on one ground — the first principal point discussed in this opinion — that it sufficiently served its purpose, hence, it is not important that the second principal point presented in its petition was not stated, or not clearly stated. We cannot agree with this view. The written protest should clearly state all the grounds, with definite citations of law, statutes, or facts, on which the taxpayer relies. Nothing less accomplishes the purposes of the statute. (See Millhaubt v. McKee, 141 Kan. 181, 185, 40 P. 2d 363.)
The second answer to plaintiff’s contention is that it is not well taken in any event. There is no reason to say that R. S. 79-2201 and R. S. 79-2917 violate section 5 of article XI of our constitution. Everything plaintiff alleges was done by the county treasurer, the state auditor, or the county clerk, was done pursuant to law, namely, the statutes hereinbefore referred to. There is a statute imposing the tax, and it distinctly states the object of the same, namely, to provide funds certified by the state auditor to the county clerk, in July, 1933, shown to be delinquent by the report of the county clerk made to the state auditor in November, 1932; and if this produced a greater sum than was then necessary to pay state taxes due, the excess to be applied upon state taxes for subsequent years. That was the object to which it was to be applied. We find no reason to hold either of these sections of the statute to be in violation either of section 1 or of section 5 of article XI of our constitution.
There remains to be considered plaintiff’s allegations that to enforce the payment by it of this tax would deprive it óf its property without due process of law and deny to it the equal protection of the law, contrary to the fourteenth amendment to the federal constitution. We are unable from plaintiff’s petition or its brief to see clearly just in what way plaintiff contends these rights are violated. We see nothing lacking in due process of law. No statute is pointed out as not having been followed by any county or state official hav ing anything to do with the matter. Plaintiff does not allege it has been denied a hearing before any court, tribunal, or official. If the statutes hereinbefore discussed are valid, as we hold, nothing is pointed out to us as having been done which remotely resembles lack of due process. Neither is it clear in what respect plaintiff is denied the equal protection of the law. Every taxpayer who pays his taxes, as this plaintiff did, knows that some taxpayers are likely to be delinquent in the payment of their taxes; that notwithstanding this the functions of government must go on; that this may result in an increase of his taxes at the next or some subsequent taxpaying time; that while surpluses of tax money in the hands of tax-collecting officials are not to be purposely created, they sometimes exist, and that it is prudent to provide that they be credited upon future taxes soon to be collected. In all these respects the statutes in question deal with plaintiff just as they do with every other taxpayer in the state. On these points plaintiff’s allegations and arguments are 'so general that we find no specific thing to discuss.
What we have said necessarily results in a holding that plaintiff’s petition fails to state a cause of action, and that defendants’ demurrer thereto should have been sustained. The judgment of the court below is reversed with directions to sustain the demurrer to the petition. | [
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The opinion of the court was delivered by
Hutchison, J.;
The appeal in this case is by the defendant stage lines company from a judgment rendered against it for personal injuries and property damage sustained by plaintiff by reason of alleged negligence of defendant which caused a collision between a bus belonging to defendant company and the automobile of the plaintiff at the intersection of Quincy and Sixth streets in Topeka, December 31,1933. The verdict was for $2,000 covering two items, $1,850 for permanent personal injuries to the plaintiff and $150 for damage to the automobile.
The collision occurred a little after ten o’clock in the forenoon of the day mentioned when plaintiff was driving north on Quincy street and the bus was coming from Kansas City, traveling west on Sixth street.
The principal negligence alleged in the petition was the excessive speed of the bus, which speed was said to be in violation of a city ordinance. The answer in addition to general and special denials alleged contributory negligence on the part of the plaintiff, which was denied in the plaintiff’s reply. Among the things stipulated by the parties to the trial was the existence of section 47 of ordinance No. 6139 of the city of Topeka, which, among other things, restricted the speed to twenty-five miles per hour in any business district of the city. And it was further stipulated that the accident occurred in the business district of the city.
The plaintiff testified—
“That as he approached the intersection of Sixth and Quincy he came to a complete stop before he went across; that when he got to the intersection he stopped and looked to the west and the block was clear and looked east and the block was clear; that he looked east down as far as the White Rose oil station on the northeast corner of Monroe and Sixth; that he did not see any cars or vehicles of any kind between that corner and the corner of Sixth and Quincy; and that he then started across the street in low; that he thought he had shifted into high gear before he got struck; that he was unable to state for sure but did not think he got up to ten miles an hour; that the first glimpse he had of the bus was just about the time it was ready to strike the car; that he was looking north after he had looked east and west and stopped and then went into the intersection, and that he was looking straight ahead.”
He further testified that he was 78 years old, had driven an automobile since 1909, that he wore glasses — bifocals—mostly for reading, that as he approached the intersection he was driving 20 to 25 miles an hour and came to a stop about even with the curb line, “that when he looked down this 300 feet he didn’t see the bus at all; after he started his car he looked straight north and kept looking north; that he never looked east after he approached the center of Quincy street; that he had no judgment as to the speed of the bus, as he didn’t see the bus.”
We have set forth more of the evidence of the plaintiff than usual for the reason that the appellant urges as the major error in the case the contributory negligence of the plaintiff which it contends barred him from recovery.
There was evidence given by two witnesses for the plaintiff concerning the speed of the bus as it approached the intersection. One said it was about thirty miles per hour, and the other said about forty-five miles per hour. There was evidence introduced by the defendant that the speed of the bus was less than twenty-five miles per hour, that the plaintiff slowed up, but did not stop before entering the intersection and that the driver of the bus sounded the horn two or three times before reaching the intersection. There was evidence introduced by both sides as to the distance of the bus from the east line of the intersection when the driver put on the brakes, varying from 100 feet to the line itself and also as to the distance the bus slid, which varied from a point about 100 feet east of the intersection to the length of the bus-within the intersection before the bus stopped in the northwest quarter of the intersection. Counsel for both parties speak of the conflict in the evidence.
There appears to be three points having to do particularly with the question of contributory negligence about which there seems to be no conflict. They are: (1) the fact that the plaintiff did not look to the east while crossing the intersection after having looked east at the crossing and seeing nothing for more than a block east; (2) he did not appear to heed the sound of the horn given two or three times by the bus driver approaching the intersection; and (3) a rule of the road not particularly in evidence, but recognized by both parties in their briefs, of the right of way in favor of the driver and vehicle to the right, which in this case would be the bus, where there were no stop signs, as there were none at this intersection.
These three things can properly be accredited to the defendant in its contention that the plaintiff was guilty of contributory negligence, but they are not sufficient in themselves to justify such a finding. Taking these three points to be against the plaintiff, what is the proper finding as to contributory negligence when the other points involved are taken into consideration, particularly the question of the speed of the bus? We have briefly above stated the ex tremes where conflict in evidence exists. It should further be stated that the court, on request, permitted the jury to go to the intersection with proper caution and under charge of a bailiff, so as to view the place of the accident and also to see the car of the plaintiff.
Appellant cites Antrim v. Speer, 133 Kan. 297, 299 Pac. 643, where it was held that—
“Under the facts as disclosed in the opinion it is held that one who drove his car in front of a rapidly approaching car at the intersection of two roads, when by observation he could have told that he did not have time to get across the road without a collision, is guilty of contributory negligence.” (Syl.)
But there, as stated in the opinion, the jury made a great number of findings, which in effect established the negligence of the plaintiff, notwithstanding there was strong evidence given on behalf of the plaintiff in relation to distance and other matters which the jury evidently disbelieved. Here we have no answers to special questions or any finding except the verdict, which is a general finding, on disputed facts in favor of the plaintiff.
In the case of Keir v. Trager, 134 Kan. 505, 7 P. 2d 49, it was held in a collision case quite like the one at bar, except there were stop signs, that—
“When the facts relating to contributory negligence are of such character that reasonable minds might reach different conclusions thereon, it is a question of fact for the jury to determine.” (Syl. ¶ 2.)
The case of Stamps v. Railroad Co., 114 Kan. 477, 218 Pac. 1115, was where a streetcar was struck by a railroad train going at an excessive rate of speed beyond what one was required to anticipate. After the streetcar driver had stopped and looked and did not see any train, it was held that—
“. . . he was not guilty of contributory negligence as a matter of law for not continuing to look for a train after determining it was safe to cross.” (Syl. HI.)
In the opinion it was said:
“. . . this court is bound by findings of fact returned by the jury and approved by the trial court, based on conflicting testimony.” (p. 479.)
The case of Hughes v. Motor Co., 111 Kan. 397, 207 Pac. 795, is almost exactly like the case at bar, except that the jury found certain facts by answering some special .questions instead of doing so by its general verdict, as in this case, and the details of the rights and duties of the drivers of the two automobiles approaching the intersection are carefully'set out and discussed by the late Justice Mason, and in the third and fourth paragraphs of the syllabus it was held:
“The question whether the plaintiff in exceeding the statutory speed limit and in failing to see another car in time to prevent a collision was guilty of negligence contributing to his injury is held to have been one of fact, properly submitted to the jury.
“Where by ordinance a vehicle approaching a street intersection from one direction is given the right of way over one approaching it from another, the driver of an automobile from the disfavored direction is not required under all circumstances before attempting to cross to await the passage of every ear he can see coining from the other direction which by any possible burst of speed might reach the crossing of their paths ahead of him'. It is not negligence as a matter of law for a driver from either direction to undertake to cross the intersection ahead of a car which is at such a distance that he has ample time to get across provided the other does not exceed the highest speed he should reasonably anticipate. . . .”
In the very recent case of Scheve v. Heiman, 142 Kan. 370, 47 P. 2d 70, it was held that the question of contributory negligence was a question for the jury to determine, where there was sufficient evidence, if believed, to support such a finding, and in the opinion it was pointed out that a driver even without the right of way in his favor had the right to assume that he could continue on across the street and that the defendant would not exceed the speed at which he had reason to anticipate the defendant would approach and cross the intersection.
We think there was sufficient evidence in the case at bar, if believed by the jury, to support the general finding of the jury that the plaintiff was not guilty of contributory negligence.
Appellant also cites Ferguson v. Lang, 126 Kan. 273, 268 Pac. 117, and a number of decisions from other jurisdictions which do not change the situation as to the evidence in this case.and the conclusion above stated, as applied to the finding of the jury thereon in its general verdict.
Appellant assigns error in the overruling of its motion for a new trial on account of the misconduct of the jury during its deliberations and that it rendered its verdict through prejudice. Five jurors testified on the hearing of the motion for a new trial to the effect that during their deliberations one of their number said it would not make any difference about the amount allowed as the insurance company would pay it anyway. There was a difference in the testimony as to when this remark was made, whether before or after determining in favor of the plaintiff except as to the amount, and one of the jurors stated that the foreman of the jury said in reply that did not enter into their discussion.
A. T. & S. F. Rld. Co. v. Bayes, 42 Kan. 609, 22 Pac. 741, and many other cases are cited to show the disapproval of bringing into the case the question of defendant’s carrying insurance and of the jury’s furnishing evidence of similar matters, as in the Bayes case, where one juror told the others what the defendant railroad had paid him per rod for his hedge, which was the matter in controversy as to the worth of plaintiff’s hedge, and the verdict was set aside for misconduct of the jury. Most of the cases cited with reference to defendant’s being insured or insurance companies being liable are where the plaintiff deliberately and intentionally brought such matters out or hinted at them in the trial. Here we have not only the record showing nothing of the kind, but it is frankly admitted by counsel for defendant that the matter of insurance was not mentioned during the trial. The very mention of insurance by that one juror must be classed at least as an improper remark, but is it an impropriety sufficient in itself to require that the verdict be set aside without a showing of its having influenced the jury to the detriment or prejudice of the defendant? The case of Newell v. City Ice Co., 140 Kan. 110, 34 P. 2d 558, was exactly like this one in that respect, and it was there said that it could not be held that the mention of insurance by a juror in the jury room had substantially affected the procuring of the verdict or the amount thereof. We think this is the correct rule when the plaintiff is in no way responsible for what was said in the jury room.
The judgment is affirmed.
PIarvey, J., not sitting. | [
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Opinion by
Simpson, C.:
This case was tried by a jury upon the first two causes of action stated in the petition, and resulted in a verdict for the defendant in error, for $48.78. The jury returned answers to particular questions submitted to them, and among other things found that the railroad was constructed through the land of the defendant in error by a contractor, at a stipulated price, who had sole control of the employment and discharge of his own hands and servants, and that they went outside of the right-of-way and dug and removed earth, stone, and gravel. They also found that the plaintiff in error, the railway company, employed hands and servants in the construction of said railroad; but they also found that such agents and servants of the railway company did not advise, aid or abet the person engaged in the construction of the road to go outside of the right-of-way and dig and remove stone, earth and gravel from the land of the defendant in error.
These special findings are so inconsistent with each other, and are so antagonistic to the general verdict, that the case must be reversed for the same reasons given in Shoemaker v. St. L. & S. F. Rly. Co., 30 Kas. 359.
It is recommended that the judgment be reversed, with instructions to grant a new trial.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
Defendant in error brought an action before a justice of the peace in Wabaunsee county, for $9.60, for building chimneys and doing other mason work. The defendant in his set-off averred that he had loaned plaintiff $20, and that the balance thereof, after paying the $9.60, was still due him. Upon appeal a trial was had in the district court by a jury, at the October term, 1886, and a verdict was rendered for plaintiff for $9.60, and judgment given therefor. The defendant brings the case here for review.
The errors complained of are, first, in admitting testimony in favor of the plaintiff; and second, that the judgment is not supported by evidence. There was a conflict of evidence about the $20, plaintiff stating it was a part payment for his laying down a sidewalk for defendant, and defendant claiming that it was loaned by him to plaintiff. From the testimony introduced, the defendant’s version of the testimony is certainly reasonable; but the jury found for the plaintiff. The court sustained the verdict, and rendered a judgment thereon; it is supported by the evidence of plaintiff himself, and corroborated by other witnesses. Under the well-established rule of this court, such a judgment, after receiving the approval of the trial court, will not be disturbed. It is unnecessary to cite authorities.
The other objection arises upon the introduction of testimony. In their settlement for the sidewalk, plaintiff claimed that defendant told him that one Hibbard was indebted to him in the sum of $19.50, for rent, and that Hibbard would pay plaintiff that amount for defendant. The plaintiff testified that when he spoke to Hibbard about the matter, Hibbard told him that he was not legally indebted to Kaufman, and if he took that claim for part payment it would be at his peril, as he did not intend to pay it. Afterward Hibbard himself testified to the same statements, and in his testimony in court said that he did not intend to pay the amount; “it was not justifiable by law.”
We perceive no error in the admission of this evidence-The defendant referred the plaintiff to Hibbard for payment of this claim, and certainly the fact that Hibbard refused to pay was competent evidence, even though offered by the plaintiff himself. He heard him refuse the payment of it, and Hibbard himself afterward at the trial testified to the same statement, and added that he adhered to his former determination in the matter.
These are all the exceptions we care to notice, and would recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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Opinion by
Holt, C.:
The first and most serious question that confronts us is to determine the nature of the written instrument that purports to be a mortgage, given for the purchase-money of lot number seventy-one. If it was a mortgage, then Henry Wolf would have been entitled to one-half of the value of the property after the mortgage had been paid. At the time of the execution of his deed to Schwoertz, the mortgage would have amounted to $2,950. The jury found the value of the property was only $3,000; Wolf, receiving $300 for his share, certainly would have no cause to complain if the mortgage had been valid. It is established that no money was passed for the mortgage. It is claimed by defendants that if Mrs. Schwoertz intended to make this as a gift or donation to her husband, no one except existing creditors could complain of such gift or donation, and that the heir could not question his mother’s right to dispose of her own property. We think that statement of the law is correct; but was it intended as a gift or a donation ? Mr. Schwoertz said he wanted it to preserve his interests in this property if he should outlive his wife; Mrs. Schwoertz, on being told that he would have a half-interest in the estate under the laws of Kansas, replied that Mr. Schwoertz wanted it this way. Mr. and Mrs. Schwoertz both stated to Judge Carey at the time he took the acknowledgment, that it was given for the purpose of preserving the interests of Mr. Schwoertz in the land if .he should survive his wife. Mrs. Schwoertz evidently did not intend it to be a mortgage, and Schwoertz himself did not then pretend it would have the effect of one. His heirs are now claiming it to be quite a different instrument from what he told his wife it was when he obtained her signature to it. It was not at the time of its execution believed by either party that it should have any force until after the death of Mrs. Schwoertz. In other words, this instrument was to have no effect during the lifetime of Mrs. Schwoertz, but was to spring into existence as a valid instrument at her death. We believe that such an instrument is not a contract, but a testamentary paper, and as such is void. It is neither a will nor a contract. It is not a will, because it was not executed in conformity to the statute. It is not a contract, because it was not intended to have any operation until after the death of the maker. ' It was an instrument that might be revoked at any time; was without force; not intended as a gift, but intended to secure certain rights of the husband to the property after the wife’s death. She probably believed it would give her husband, as her heir, his one-half interest in the lot. He, having already consulted an attorney, evidently intended at that early day to cut off the possible claim of young Wolf, as one of his wife’s heirs, to the property. This disposes of the question in the case which has given us the most trouble.
This instrument was not a mortgage in reality, upon lot number seventy-one. The statements of Stumbaugh and Schwoertz to that effect were false and fraudulent, and were presumably relied upon by Wolf, and the jury found that they were the controlling influences which induced him to execute the deed, as in the fifth finding they state it was by false and fraudulent representations that Schwoertz obtained it. The evidence amply justified this finding.
The defendants contend that the offer of Schwoertz to give Wolf $500 as a starter, and do more for him in the future, was not in law a false and fraudulent representation. This is probably correct. Any promise of what a party says he intends to do at some future time, although in fact he never intends to fulfill such promise, is not a false and fraudulent statement in law, however reprehensible it may be in morals. A representation, to be a false and fraudulent one, must be concerning some present existing fact, or some past completed act. This deed was given because Wolf thought the pretended mortgage was a valid and subsisting lien upon the lot for nearly $3,000. If that had been true, his action would have been to his ad vantage; he would have made a good trade.
The defendants complain of the general scope of the instructions given the jury. We shall consider those only which were necessary to explain the evidence applicable to the findings submitted to the jury. Those given outside such findings will not be considered here. . It is the province and duty of the trial court, where an action is only partially tried upon questions of fact submitted to a jury and other issues of fact reserved by the court for its own determination, to instruct upon those questions only which are submitted, and if the instructions that are given on those matters are sufficient and proper, neither party has occasion to complain. In this action only six questions were submitted, which did not reach all the issues raised by the pleadings and evidence introduced to support them.
The fifth instruction is complained of. It is:
“If you find from the evidence that the purchase of this property was fair and honest, and that defendants or their attorneys made no false or fraudulent representations for the purpose of securing these deeds, then the plaintiff is not entitled to recover in this action.”
Whether this shifts the burden of proof from the plaintiff1 to the defendants on this particular question, would seem to be of very little importance in the face of a finding of the jury virtually to the effect that it was not fair and honest, being induced by false and fraudulent representations. We’ agree with the defendants, that representations must be both false and fraudulent to constitute such fraud in a conveyance as would be sufficient to set it aside on that ground, and probably the instruction did not state the law correctly; but how could it injure the defendants, when the jury did find that the representations were both false and fraudulent ? We think that finding establishes the fact that the error could not have possibly prejudiced the defendants.
We see no error that would require a- reversal of this case. The judgment commends itself to us as-so fair and just, that we have no hesitation in affirming it. By a perusal of the evidence brought here, we are irresistibly led to believe that the matter of the division of the property which Mr. and Mrs. Schwoertz might leave, had been fully discussed and mutually agreed upon between them. It appears that most of it was the joint earnings of both, and very naturally they agreed that one-half should descend to his daughter, and the other half to her son. It is shown that they left $3,400 in real estate, and at least $3,000 in personal property. If it should be held that the instrument executed by Mrs. Schwoertz was a mortgage, then his daughter Anna would receive $5,900, and her son Henry, $500. That amount, too, it seems was paid him out of. the money arising from his mother’s life insurance.
What we have said heretofore has had reference solely to the sale of lot number seventy-one on Kansas avenue. So far as the judgment has reference to the Polk street property, it will be modified; as there is no evidence to show that there were any false and fraudulent representations in relation thereto, unless a possible inference might be. drawn from the fact that the sale was made at the same time the sale of lot number seventy-one was effected. We do not think, however, it can be fairly drawn ■ from the evidence. Moreover, it is conclusively established by the findings of the jury that plaintiff obtained full value for the property on Polk street at the time of sale, and for that reason such conveyance ought not to be disturbed.
We recommend that the amount of $200 and interest thereon from .the date of sale be paid over by the clerk of the district court to the order of the plaintiff; in all other respects that the judgment be affirmed: the costs of this court to be equally divided.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
A motion has been made in this case to dismiss the petition in error and “case-made” from this court, for various reasons; but we do not think that any of the reasons given are sufficient, and hence the motion must be overruled. Among the reasous given is one that the certificate of the judge does not show that the “case-made” contains all the evidence. It is not necessary in any case, that the certificate of the judge should so show; but if it be desired that it shall be shown to the supreme court that.all the evidence is contained in the case-made, a statement to that effect should be inserted in the case itself. It is not shown in this case that the “ease-made” contains all the evidence, but the failure to make such a showing is not a ground for dismissal. We find a certificate of the official stenographer appended to the evidence contained in the case, “that the foregoing is a true and correct transcript of all the evidence,” etc.; but such a certificate is not sufficient. It is the province of the judge of the court, and not that of the stenographer, to settle and determine .whether the “case-made” contains all the evidence or not, and to settle and determine the identity of all the proceedings and the truthfulness of all the statements contained in the case made for the supreme court.
This proceeding was an appeal to the district court by Annie Grimes, from an award of damages made by commissioners in certain condemnation proceedings. The damages claimed are such as are alleged to have resulted by reason of the Burlington, Kansas & Southwestern Railroad Company’s locating its railroad and appropriating a right-of-way through the land of the said Annie Grimes. This appropriation was accomplished on June 29, 1885. The trial with respect to damages was had from June 1 to 3, 1886, before the court and a jury, and the jury found damages in favor of Mrs. Grimes, as follows:
Bor laud actually taken.................................... $82 08
Damages to land not taken, on north side................... 160 00
Damages to land not taken, on south side................... 346 50
Pasture................................................... 28 00
Bences.................................................. 5 00
Crops................................................... 6 00
Interest.................................................. 33 42
Total.............................................. $661 00
Upon the verdict and findings of the jury, the court rendered judgment in favor of Mrs. Grimes for costs, and awarded her damages to the amount of $627.58. Why the court did not award her the full amount of the.damages which the jury found that she had sustained, is not shown. The court ordered this amount to be paid into the county treasury. If the railroad company has already paid into the county treasury $170, and if that amount still remains there, the company will be required to pay only $457.58 more in order to make the entire amount of $627.58.
Some evidence was introduced that was irrelevant and immaterial, but we do not think that the defendant’s rights were prejudiced thereby. As to some of this evidence, the court instructed the jury to disregard it, and from their special findings they must have disregarded the whole of it. The aggregate amount of the damages specially found by the jury is just equal to the entire amount of damages found by them in their general verdict; hence no unwarranted damages were allowed. We think no material error was committed.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Opinion by
Holt, C.:
In March, 1885, the defendant in error, who was also defendant below, set fire to some cornstalks in his inclosed field, which escaped and swept over to the meadow of the plaintiff toward his stacks; the defendant, going into the meadow, set a back-fire to protect plaintiff’s stacks, but the fire escaping from him burned them; either the back fire or the original fire burned up the fence posts of the plaintiff. He brought his action before a justice of the peace, and upon appeal it was tried in the Pottawatomie district court, at the October term, 1885, by a jury; verdict for defendant, and judgment rendered thereon. Plaintiff brings the case here, and in his brief his complaint is of the instructions of the court. The court in substance instructed, that before plaintiff could recover he must show by a preponderance of the evidence that the defendant was guilty of negligence in setting out the fire, or in not preventing it from spreading beyond his own land. The court defined the degree of negligence that must exist as ordinary negligence, being an absence or want of that degree of care which men of common prudence generally exercise in their own affairs.
The plaintiff contends that because fire is a dangerous element, anyone using it must exercise extraordinary care in its use. We do not think his contention is correct. We believe that it is only necessary for the defendant to use ordinary care in setting out the fire within his own inclosure, and in preventing its escape to the land of others. Of course each case of this kind is to be determined to a great extent upon its own peculiar circumstances, and the acts which might be proper care in one case, in another case, under different circumstances, might hot be sufficient. To that extent only, the question of negligence is a question of fact for the jury, the measure of negligence or prudence first being defined by the court.
In this particular case the defendant was burning off his lot and preparing it for cultivation, and set the fire upon a calm morning; after the fire had started, the wind veered and there were puffs of wind and a little whirlwind which carried the fire beyond his control. It could not be imputed to the defendant for negligence, because he did not anticipate such a change of the wind.
The plaintiff further complains of the following instruction :
“If, however, you find from the evidence that the original fire, set out by the defendant for the purpose of burning stalks on his own land, would, in any event, certainly have caused the burning of the hay-stacks and posts of the plaintiff, then it is wholly immaterial that the defendant undertook to protect the hay-stack by back-firing, and failed in the attempt by negligence or otherwise. In such case, you need only inquire whether the defendant was guilty of negligence in setting out the original fire, or in not preventing it from spreading beyond his own land; and if you should find from the evidence that he was not guilty of such negligence, you will find for the defendant.”
It restricts the finding in favor of plaintiff to the negligence of the defendant in setting out the original fire, or in not preventing it from spreading from his own land, provided that in any event the fire first set out would have destroyed- the property of plaintiff without any reference to the attempt of defendant to protect the stacks by back-firing. It provides that if he negligently set out the fire, or if he set it out properly, and negligently allowed it to escape from his control, then in any event the defendant would be liable. In other words, if the defendant was guilty of negligence in setting out the fire, or in his attempted control of it, and the fire would have surely burned the stacks of the plaintiff anyhow, it was immaterial whether he was diligent or negligent in attempting to save the property by back-firing, for the reason that in any event such property would have been destroyed. We perceive no error in this instruction prejudicial to the plaintiff.
Instruction number five was as follows:
“ If the fire originally set out in defendant’s corn-stalks had spread from the defendant’s land, and was continuing to spread so as in all probability to endanger the hay-stacks of the plaintiff, then the defendant had a right to set out a fire on the land of plaintiff to protect such hay-stacks by back-firing; and if the hay-stacks were destroyed by such back fire so set by defendant, the defendant would not be liable therefor if he exercised that degree of care which ought reasonably to have been used under the circumstances.”
This is the most serious question for consideration in this case. The plaintiff claims that it authorizes the jury to find a verdict for the defendant, even though the defendant was negligent in setting out the fire, or permitting it to escape beyond his land, if afterward he exercised due care in setting out the back fire. If the instruction necessarily bears this construction, it is erroneous: but does it mean what the plaintiff claims? It does not say so in plain terms. If it is inferred, it is an inference that does not necessarily arise from the language of the instruction. The instruction might be held to mean that he would not be liable for the destruction of the hay-stacks by the back fire, if he exercised reasonable diligence in setting it out. The most we feel like saying is, that the instruction was not as plain and unambiguous as it might have been. Moreover, the instruction immediately following this lays down the rule very clearly in regard to the measure of care required, wherein it provides that either negligence in setting out the fire, or allowing it to escape, was sufficient each of itself to sustain an action against defendant. The testimony brought here seems to fairly show that the defendant exercised ordinary care in setting out the fire; did what he possibly could in preventing its escape and spread upon the land of plaintiff, and then, after consulting with others whom he called to his aid to protect the property of plaintiff, pursued what seemed to them all the best policy, in attempting to save the stacks by back-firing.
We perceive no material error in the instructions of the court. These are the sole errors complained of, and therefore we recommend an affirmance of the judgment.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Johnston, J.:
The Emporia National Bank brought this action, in the district court of Franklin county, against O. G. Bodley,- F. J. Bodley and J. D. Bodley, to recover upon a promissory note given by them on June 17,1882, promising to pay on June 17,1884, to the order of Wm. H. Woodlief, $2,800, with interest from date at ten per cent, per annum. On May 8,1883, a payment of $550 was indorsed on the note, and shortly afterward it was duly transferred to A. M. Blair, who in turn, and before the maturity of the note, indorsed and sold it to the bank. The Bodleys admitted signing the note, but claimed that the consideration thereof was $800, loaned to them by Woodlief, and that the remaining $2,000 was the consideration for the sub-letting of a mail contract for carrying the United States mail in Omaha, Nebraska, from July 1,1882, to June 30,1886. The original contractor was Riley W. Woodlief, from whom Wm. H. Woodlief, the payee of the note, procured a sub-letting to the Bodleys, and for which the remaining $2,000 of the note was a bonus. They further alleged that the payee made false representations to them respecting the extent and kind of service required under the contract, and that the indorsers and the bank had notice of the fraudulent character and illegality of the note, and the claims made by them against it. The Bodleys petitioned for a removal of the cause to the circuit court of the United States, for the reason that it was a suit arising under the laws of the United States, contending that the note sued on was an assignment of a claim against the United States, and fell within the prohibition of §3477 of the Revised Statutes of the United States. The petition was accompanied by the required bond, and the district court granted the petition and ordered a transfer of the cause. When the record was taken to the federal court, a motion was made to remand, on the ground that the action did not arise under the laws of the United States, nor did the answers of the Bodleys present any federal question. A hearing of that motion was had, and it resulted in an order remanding the cause, and dismissing it from that court for want of jurisdiction. A trial was subsequently had in the state court, where judgment was given in favor of the bank. The first question raised here is, that the state court had no jurisdiction to try the action, because it presented an issue under § 3477, Revised Statutes of the United States, and that as the petition and a sufficient bond for removal had been filed, the jurisdiction of the state court was lost. This question has been tried and adjudicated. It was done at the instance of the parties who now complain. They took the cause to the circuit court of the United States, and the precise question they now raise was there decided. That court was petitioned to pass on the question, and although excepted to its judgment stands unappealed from and unreversed. Having invoked that jurisdiction and procured a decision in which they have acquiesced, it effectually concludes them, and ends the controversy on that question.
The defenses urged against the note cannot be maintained. It does not come within the provisions of § 3477, U. S. Revised Statutes, and it is shown, and in fact conceded, that Blair, the immediate indorser to the bank, had no notice óf alleged infirmities existing in the note as between the original parties. He took it in the ordinary course of business before maturity in good faith, and for a valuable consideration, and being unaffected by the alleged infirmities, he acquired a good title to the paper. There is an attempt to show that the bank purchased from Blair with notice of the defects, but even if that be true, it would not defeat a recovery. It is well settled that the bona fide holder for value can transfer a negotiable instrument to any person other than one of the original parties, and pass a title to the purchaser equal to his own. The purchaser from such innocent holder may recover thereon, although he may have had notice of the infirmities of the note when he took it. Judge Story says that “this doctrine is indispensable to the security and circulation of negotiable instruments, and it is founded in the most comprehensive and liberal principles of public policy.” (Story Pr. Notes, §191; Dan. Neg. Ins., §§ 803, 804, and cases cited.)
Under the admissions of the parties and the testimony, we think that the bank acquired the paper free from defenses, if any existed, and we shall therefore affirm the judgment of the district court.
All the Justices concurring. | [
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Opinion by
Clog-Ston, C.: J.
N. Shahan commenced this action to recover^possession of a stock of groceries held by the defendant, J. L. Smith, as sheriff of Reno county, by virtue of orders of attachment issued out of the district court of said county, said property having been attached as the property of Freese & Stealey. Plaintiff claimed that he was the owner of the goods in controversy by virtue of a purchase from Freese & Stealey, the former owners of the goods; that he purchased the same to secure an indebtedness due from them to him, and that he paid them the difference in money. The defendant claimed that the pretended sale from Freese & Stealey to the plaintiff was made for the purpose of hindering, delaying and defrauding the creditors of Freese & Stealey. On this issue the case was submitted to the jury, and judgment was rendered for the defendant.
The principal error complained of by the plaintiff is, that the instructions and judgment as to the amount of defendant’s recovery, are erroneous. The seventeenth instruction of the court was as follows:
“ If you find for the defendant, you will find in your verdict that the defendant was at such time entitled to the possession of said property, and also the value of the same at the same time.”
The value of the property, as alleged by plaintiff in his affidavit in replevin, was $2,072, and the jury found in their verdict the value of the property to be $2,072, the amount claimed by the plaintiff; and upon said verdict the court rendered judgment for the defendant for the return of the goods in controversy, or, in default of their return, for the sum of $2,072, with interest thereon from the 5th day of February, 1884, at the rate of seven per cent, per annum. This instruction and judgment we think erroneous. The sheriff claimed a special ownership in the property; which ownership and right of possession depended upon the writs of attachment under which he claimed to hold the property. The record shows that upon these attachment suits certain judgments were rendered, in amounts substantially as claimed in the writs of attachment, with interest. The record discloses the sum of these judgments, as near as we can ascertain, including the interest on the several judgments up to the date of this judgment in the district court, at the rates of interest named therein, to be $1,765.70; this being the amount that the sheriff would be entitled to recover in case the property was not returned by the plaintiff, together with interest thereon from the date of that judgment, at seven per cent, per annum. This was the extent of his special ownership therein, and when this claim is satisfied he has no further right or claim to the possession of the goods. It was the duty of the sheriff, when he claimed that he had only a special interest and ownership in the property in controversy, to clearly show what that special interest or claim was. Apparently, not all the costs in' the attachment suits are contained in the record, but whatever costs the record shows we have included in the estimate.
It is therefore recommended that the judgment of the district court be modified to the amount herein stated, provided the defendant shall, within thirty days after the filing of the mandate of this court in the district court of said county, file his acceptance in writing therein, accepting said judgment so modified; if not so accepted by the defendant; the judgment will be reversed, and a new trial ordered.
By the- Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Cash was convicted of burglary in the third degree, and sentenced to hard labor in the penitentiary of the state for the term of two years. He appeals to this court. The information was based upon § 69 of the act regulating crimes and punishments. (Comp. Laws of 1885, ch. 31.) This section reads:
“Every person who shall be convicted of breaking and entering, in the daytime, any dwelling house or other building, or any shop, store, booth, tent, boat or vessel, under such circumstances as would have constituted the offense of burglary in the second degree if committed in the night-time, shall be deemed guilty of burglary in the third degree.”
Section 63 of said chapter 31, which defines burglary in the second degree by breaking and entering a dwelling house in the night-time, is as follows:
“Every person who shall be convicted of breaking into a dwelling house, in the night-time, with intent to commit a felony or any larceny, but under such circumstances as shall not constitute the offense of burglary in the first degree, shall be deemed guilty of burglary in the second degree.”
Section 61 of the same chapter, defining burglary in the first degree, provides:
“Every person who shall be convicted of breaking into and entering, in the night-time, the dwelling house of another, in which there shall be at the time some human being, with intent to commit some felony, or any larceny therein, either: First, By forcibly bursting or breaking the wall, or any outer door, window or shutter of a window of such house, or the lock or bolt of such door, or the fastening of such window or shutter; or, second, by breaking, in any other manner, being armed with some dangerous weapon, or with the assistance and aid of one or more confederates, then actually present, aiding and assisting; or, third, by unlocking,an outer door, by means of false keys, or by picking the lock thereof, shall be adjudged guilty of burglary in the first degree.”
Section 69, when read in connection with §§61 and 63, provides that every person who shall be convicted of breaking and entering, in the daytime, any dwelling house or other building, or any shop, etc., in which there is not, at the time, a human being, with intent to commit felony, or any larceny, is guilty of burglary in the third degree.
The verdict in this case is sufficiently sustained by the evidence. The burglary was committed at Peabody, in Marion county, on July 11,1886. Mr. and Mrs. Lincoln, whose dwelling was entered, went to church on that day at 11 o’clock A. M., leaving their house locked up, and the windows closed, with no one in it; and upon returning, about an hour after, found Cash inside, with his shoes off and in his stocking feet,' going from the dining room down into the cellar. Cash admits that he was in the house, and had stolen some milk and crackers, which he had eaten. Upon being told by Mr. Lincoln that “he would arrest him,” Cash said, “If you arrest me, it will send me to state’s prison.” It appears from the evidence that Cash was a tramp, who had been stealing rides upon railroads, and had reached Peabody the day he committed the burglary. The defense made by Cash upon the trial was that, being sick from the effects of whisky, he entered the house through an open door, and was resting, and after eating some milk and crackers, when found by Mr. and Mrs. Lincoln. The substantial matter contested upon the trial was, whether there was a breaking into the house within the terms of the statute. On the part of Cash it was and is contended, that there was no evidence whatever to show that any outside door or windows had been broken, unlocked, or opened. As all of the outside doors of the house were locked, and the win dows closed, and no one in the house, according to the evidence of Mr. and Mrs. Lincoln, when they went to church, and as Cash was found by them in the house upon their return, it is evident that he could not have entered without a breaking; therefore, if the evidence of Mr. and Mrs. Lincoln is to be believed, Cash did not walk into an open door, as he testified.
Upon the evidence in the case, the sixth instruction of the court, that “In short, the violation of any mode of security which has been adopted by the occupant of a house may constitute a breaking, if followed by an entrance; but entering through an open door is not breaking,” was not erroneous, nor misleading.
The mode of security adopted by Mr. and Mrs. Lincoln was the locking of the outside doors, and closing of all the windows; therefore if Cash entered the house through any door or window, he was guilty of forcibly breaking and entering.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The first and principal question presented to this court is, whether the court below erred or not in sustaining a demurrer to the plaintiff’s evidence. And this question depends for its solution upon the further question whether a certain instrument in writing executed by Andrew Swiggett and his father George Swiggett, and the two firms of W. W. Johnston & Co., of Wichita, and Patterson, Bell & Co. of Kfinsas City, Mo., purporting to transfer to the aforesaid firms Andrew Swiggett’s general stock of merchandise, is a valid instrument or not. If this instrument was valid on April 10, 1886, when the defendants in this action took the possession of the goods in controversy, the goods supposed to be conveyed by this instrument, then the ruling of the court below was erroneous; but if the instrument was void at that time, then the ruling of the court below is correct. The parties to this action treat the instrument as though it were a chattel mortgage; and probably they correctly so treat it. If it were considered as an assignment for the benefit of creditors, then it would be void under the provisions of the statutes relating to voluntary assignments for the benefit of creditors. (Comp. Laws of 1885, ch. 6.) It would be void in that case, for the reason that it was not executed in accordance with the provisions of such statutes. If, however, it be considered as a chattel mortgage, it may be valid or it may be void, depending upon the other circumstances of this case. It was executed on November 1,1884; the said two firms took the possession of the property purporting to be transferred by it, about November 3, 1884, and the instrument was deposited with the register of deeds on February 11, 1885. If the instrument be treated as a chattel mortgage, executed in good faith — and we shall so treat it — then it became valid as soon as the two firms aforesaid obtained the possession of the goods under it. (Cameron v. Marvin, 26 Kas. 612, 625, and cases there cited; Dolan v. Van Demark, 35 id. 305, 308, and cases there cited; Isenberg v. Fansler, 36 id. 402.) And although Andrew Swiggett afterward, and on February 12,1885, took the actual and the absolute possession of the property, and continued to hold the possession thereof until April 10,1886, when the defendants in this action took the possession thereof, still the instrument remained valid up to February 11,1886; for on February 11, 1885, the day before Andi’ew Swiggett took such possession, the instrument was deposited with the i’egister of deeds as a chattel mortgage. (Comp. Laws of 1885, ch. 68, §§ 9,11.) The real question then for us to consider is, whether the aforesaid instrument was valid or void after February 11, 1886, and up to and including April 10, 1886, when the defendants in this action levied upon and took the possession of Re property.
There is no claim, nor even a pretense, that any renewal affidavit was ever filed for the purpose of keeping the instrument alive as a chattel mortgage as required by §11 of the act relating to mortgages, (Comp. Laws of 1885, ch. 68, §11,) nor any claim that any evidence was introduced tending to show that the Barbee Brothers, the judgment creditors, at whose instance the defendants levied upon and took the possession of the goods in controversy, had any knowledge that the debts for the security of which the instrument was executed, had not been paid or satisfied, or that the plaintiff had or claimed to have any interest in or possession of the goods. Of course if the instrument was a chattel mortgage — and we shall treat it as such —and if the holder of the mortgage, the plaintiff in this action, had the actual possession of the mortgaged property on April 10, 1886, when the defendants in this action took the possession thereof, then the instrument was valid, and the holder thereof, the plaintiff, had a right to the property, and the court below erred in sustaining the demurrer to his evidence.' (See the cases above cited, and also Dayton v. Savings Bank, 23 Kas. 421.) But was the holder of the chattel mortgage, the plaintiff in this action, George Swiggett, in the actual possession of the supposed mortgaged property at that time? Certainly Andrew Swiggett was in the actual possession of the property at that time; and George Swiggett was not in the possession thereof at all except by virtue of Andrew Swiggett’s possession. But as claimed, Andrew Swiggett was George Swiggett’s agent, and as a general rule the actual possession of property by an agent is constructively the actual possession of the property by the principal. But this rule cannot always apply. It has its exceptions.
It does not apply where personal property is mortgaged and the mortgagee permits the mortgagor, who is in equity still the owner of the property, although the legal title thereto has passed from him to the mortgagee, to retain the possession of the property, or afterward to take the possession thereof as the agent of the mortgagee, and especially not where the mortgagor holds the property and uses it as his own, and where there is nothing in or about the property or appertaining thereto, to inform other persons that any change of interest in or to the property has taken place. (McCarthy v. Grace, 23 Minn. 182; Doyle v. Stevens, 4 Mich. 87; Brunswick v. McClay, 7 Neb. 137; Grant v. Lewis, 14 Wis. 487; Menzies v.Dodd, 19 id. 364; Sch. Per. Prop. 544.) Under the statutes a chattel mortgage deposited with the register of deeds continues in force only tor one year, uuless a renewal affidavit is fried with . n the register or deeds, or unless eian actual and continued change of possession” of the mortgaged property takes place. Now “an actual and continued change of possession” does not take place unless the actual possession passes from the mortgagor and does not return to him. Of course, under the rules of agency a principal may constructively, have an actual possession of property in the actual possession only of his agent, and generally such an actual possession would be sufficient; but it is not sufficient in cases of chattel mortgages where the agent holding the property is also the mortgagor, and where the principal is also the mortgagee, and where there is nothing to show and it is not shown that the agent and mortgagor is not the full, complete and absolute owner of the mortgaged property. The statutes require not only a change, but a continued change of the possession of the property. But if the mortgagor holds the actual possession, whether as agent or otherwise, there , , , ,. 7 n cannot be any such continued change oi posses-J x. sion. A person having the actual possession of property by himself has the entire possession; and there cannot well be a stronger possession, nor much room for another actual possession. An actual possession by another, as by an agent, is after all only a constructive possession; and that kind of possession, where the person having it is the mortgagor of the property, does not meet the requirements of the statutes. Of course the burden of proof in this case rested upon the plaintiff to show that the actual possession of the property was in himself, and not in the mortgagor. The burden of proof is generally upon the plaintiff, in replevin, as this case is. And it is also upon him from the nature of the case. Whenever a person claims under a chattel mortgage, the burden of proof is upon him to show such an actual and continued change of possession, or other facts as would render the mortgage valid. (McCarthy v. Grace, 23 Minn. 182.) And a constructive possession in such a case would not answer the purpose of an actual possession. (Crandall v. Brown, 25 N. Y. Su. Ct. [18 Hun] 461.) We think the court below did not err in sustaining the demurrer to the plaintiff’s evidence.
But it is claimed by the plaintiff that the court below erred in excluding certain evidence. Andrew Swiggett was introduced by the plaintiff as a witness; the plaintiff’s counsel examined him with reference to various matters, and, so far as it is necessary to quote, the record shows as follows:
“ Q,. I would ask whether or not the representatives of Bar-bee Brothers, the execution creditors in this case, have not been duly cognizant of all these steps as they have been taken, of your own knowledge, whether you have not informed them ?
“Defendants object as irrelevant, immaterial and incompetent. Objection sustained, to which the plaintiff excepts.
“ Q. I would ask whether or not you are acquainted with Ed. McLean ? A. I am.
“ Q,. I would ask whether or not he was here and talked with you concerning the rights and claims of the Barbee Brothers, the plaintiffs in this execution, after the time this triple agreement had been made ?
“Defendants object as immaterial and irrelevant. Objection sustained, to which plaintiff excepts.”
The record also shows as follows:
“I [the plaintiff’s counsel] offer to prove that I, as attorney for George Swiggett, notified the agent and also the attorney of the Barbee Brothers that Patterson, Bell & Company and W. W. Johnston & Company desired to retain Swiggett — Andy—as their clerk, or agent, and wished him to give bond for the performance of his duties as such agent, and told them, that is, the agents of Barbee Brothers, that if they didn’t like that arrangement 'now is the time to kick, if at all,’ and they didn’t, and made no objections to his giving bond and acting as such agent.
“Defendants object to the evidence. Objection sustained, and exception noted by plaintiff to the ruling of the court.”
Who the supposed “representatives of Barbee Brothers” were is not shown, but probably they were the defendants in this action, the officer and his assistant, who levied upon and took the possession of the goods in controversy. Also, who Ed. McLean was, or why the defendants in this action should be bound by what he said, is not shown. Also, who the agent, or agents, and the attorney of Barbee Brothers were, at a time more than one year before this action was commenced, and prior to the time when Andrew Swiggett took the possession of the goods in controversy as the agent and clerk of the two firms of Patterson, Bell & Co. and W. W. Johnston & Co., and at a time when the supposed chattel mortgage was unquestionably valid, is not shown. And what right any of the aforesaid representatives or agents, or the attorney of Barbee Brothers, had to bind Barbee Brothers by anything which any one of them may have said or done, is not shown. Neither is the nature or character of the supposed duties or powers of any one of these representatives, agents, or attorney, disclosed or made, known. Prom anything appearing in the case, the supposed representatives or agents, or attorney of Barbee Brothers may have had no power to represent Barbee Brothers, or to bind them with reference to anything connected with the subject-matter of this action; and upon all these matters, as we have before stated, the plaintiff had the burden of proof. But why should the plaintiff offer evidence of any notice to the representatives, agents or attorney of Barbee Brothers, or of anything which the Barbee Brothers may have done or refrained from doing which might tend to show a notice or a waiver of notice prior to Pebruary 11, 1886? It is admitted that the chattel mortgage was valid up to and including that time, and Barbee Brothers are conclusively presumed to have known that fact, for the mortgage was filed with the register of deeds just one year before that time, which made it valid up to that time. Of course up to that time Barbee Brothers could not take any action against the chattel mortgage, nor “kick” against its validity with any hope of success. And to prove any notice to Barbee Brothers, or to any one of their representatives, agents or attorney, prior to that time, would be folly in the extreme. The only notice to Barbee Brothers or to any representative or agent or attorney of theirs which could be of any value whatever, would be the affidavit provided for by §11 of the act relating to mortgages, or some proper notice given to them or their duly-authorized agents subsequent to February 11,1886, and such a notice as would in effect show them clearly that the chattel mortgage had not yet been paid, satisfied, or discharged. Now is there any claim that any such notice as this was ever given to Barbee Brothers or to any representative, agent or attorney of theirs who had any authority from Barbee Brothers to receive any such notice? Certainly not, unless it was the supposed notice to the aforesaid “representatives of Barbee Brothers.” Now as before stated, we suppose that “ the representatives of Bar-bee Brothers” who are claimed to have had notice of the plaintiff’s rights were the officer and his assistant who levied upon and took the possession of the goods in controversy, and if so, then, according to the case of McCarthy v. Grace, 23 Minn. 183, the notice was not sufficient; for, according to that case, notice to the officer is not notice to the levying creditor. (See also Stowe v. Meserve, 13 N. H. 46.) But is not the mortgage void, even if all the parties, including the defendants and the Barbee Brothers, and all their representatives, agents and attorneys, had notice of the existence of the mortgage, and of all the rights which the plaintiff claims to have had under it? Sections 9 and 11, of the act relating to mortgages, provide among other things as follows:
“Sec. 9. Every mortgage, or conveyance intended to operate as a mortgage of personal property, which shall not be accompanied by an immediate delivery and be followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof, shall be forthwith deposited in the office of the register of deeds.”
“Sec. 11. Every mortgage so filed shall be void as against the creditors of the person making the same, or against subsequent purchasers or mortgagees in good faith, after the expiration of one year after the filing thereof, unless a renewal affidavit is filed.”
Of course a subsequent purchaser or mortgagee cannot, “ in good faith,” be such so as to defeat or avoid a prior chattel mortgage, unless he becomes such without notice of the existence of such mortgage, and hence a subsequent purchaser or mortgagee is bound by any knowledge which he may have concerning a prior chattel mortgage. (Ament v. Greer, 37 Kas. 648; same case, 16 Pac. Rep. 102.) Whether this would also be true with respect to creditors who might become such with knowledge of the existence of a prior chattel mortgage, it is unnecessary now to decide, yet the great weight of authority under statutes similar to ours, would seem to be the other way. And certainly in all cases where the mortgagor'is in the possession of the mortgaged property, and where the mortgagee has failed to file his mortgage or a renewal affidavit with the register of deeds, and where _, . ° i • i , creditors have become such without any knowledge o'f the existence of a prior valid chattel mortgage, the authorities are almost, if not entirely, unanimous in declaring, under statutes similar to ours, that the mortgage is wholly and entirely void; and this although before such creditors have attempted to enforce their claims, or before they have attempted by execution or attachment levy to obtain any specific lien upon the mortgaged property, such creditors have received full and complete knowledge of the mortgage and of the mortgagor’s claims, and that the mortgage has not yet been satisfied or discharged. (Trust Co. v. Hendrickson, 25 Barb. 484; Stevens v. B. & N. Y. C. Rld. Co., 31 id. 590; Williamson v. N. J. S. Rld. Co., 29 N. J. Eq. 312, 336; Sayre v.Hewes, 32 id. 652, 656; Denny v. Lincoln, 13 Met. 200; Travis v. Bishop, 13 id. 304; Bingham v. Jordan, 1 Allen, [Mass.] 373; Bryson v. Penix, 18 Mo. 13; Bevans v. Bolton, 31 id. 437; Selking v. Hebel, 1 Mo. App. 340; Rich v. Roberts, 48 Me. 548; Sheldon v. Conner, 48 id. 584; Lockwood v. Slevin, 26 Ind. 124; Gassner v. Patterson, 23 Cal. 299; Frank v. Miner, 5 Ill. 444; Sage v. Browning, 51 id. 217; Lemen v. Robinson; 59 id. 115; McDowell v. Stewart, 83 id. 538; Jones on Chattel Mortgages, §§ 314-318, and cases there cited.) The foregoing authorities merely proclaim the doctrine that the statutes with reference to the subject now under consideration mean what they say. Our statute says that the mortgage “shall be absolutely void as against the creditors of the mortgagor,” or “shall be void as against the creditors of the person making the same,” unless the statute is complied with, and we think this statute means what it says. We think the mortgage in this case was void after February 11, 1886, without reference to any knowledge of or notice to the Bar-bee Brothers or their representatives, agents or attorneys; and hence for this reason as well as for others, the court below did not err in excluding the aforesaid evidence.
The plaintiff also claims that the court below erred in rendering judgment for $1,604.58, the value of the property; First, because there was no evidence of the value of the property; second, because the. judgment of Barbee Brothers, with interest and costs, would not amount to that sum. Now the plaintiff admitted and alleged in his petition that the property was worth $2,797, and swore in his replevin affidavit that the property was worth that amount; hence it is immaterial whether there was any evidence of the value of the property or not, for the court below did not render judgment for as much as the plaintiff admitted the property to be worth.
The other point is also immaterial and unimportant under the facts of this case, and besides we are inclined to think that the judgment of the court below was correct. (Hall v. Jenness, 6 Kas. 356, 365, 366.) This case was tried by the defendants upon the theory that the chattel mortgage was wholly and absolutely void as to them, and such was the case, and under that theory it is proper for them to account to Andrew Swiggett, from whom they took the goods, for any surplus remaining after paying Barbee Brothers’ judgment. If such surplus, however, really belongs to George Swiggett, AncEew’s father, Andrew can pay it to George, or permit the sheriff, Dodson, the principal defendant in this case, to do so. It will be the duty of the sheriff to pay it to whomsoever it may belong. If the evidence clearly showed that the judgment of the court below was erroneous in .this respect, we could order a modification of the judgment without ordering a new trial, but the evidence does not clearly so show.
The judgment of the court below will be affirmed.
Horton, C. J., concurring.
Johnston, J.:
In my view, there was testimony tending to establish that there was an immediate delivery of the’ mortgaged property and which was followed by an actual and continued change of possession, and therefore the case should not have been taken from the jury. I also think the court erred in excluding testimony offered by plaintiff. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by C. W. Jewell and J. F. Griffin, under the firm-name and style of the Topeka State Bank, against Benjamin F. Simpson, to recover four hundred dollars as damages for the alleged unlawful conversion of twenty head of hogs and two hundred bushels of wheat. The plaintiffs claim the property by virtue of a chattel mortgage dated August 18, 1883, given by Davis & Son and A. J. Davis to them to secure the payment of a note for one hundred and sixty-eight dollars and seventy-five cents, executed by the same parties. The property was seized on the 13th day of September, 1883, as the property of A. J. Davis, by Benjamin F. Simpson, as marshal, under an execution issued upon a judgment rendered in the circuit court of the United States for the district of Kansas, wherein John Carnes, et al., were plaintiffs, and A. J. Davis wras defendant, for seven hundred and ninety-two dollars and twenty-eight cents, and costs of the suit. The property was sold by Simpson, as marshal, on October 30, 1883. Although the mortgage was executed August 18,1883, it was not filed for record until September 17,1883, several days after the property was levied upon. Upon the trial, when the plaintiffs rested with their evidence, the defendant demurred thereto, which demurrer was sustained. Of this ruling the plaintiffs complain, and bring the case here.
The only question presented-to this court is, whether the plaintiffs introduced sufficient evidence to prove their case. If A. J. Davis was the owner of the property embraced in the chattel mortgage, or had any interest therein subject to seizure on execution, then the effect of delaying the filing of the mortgage until after the property was seized on execution, rendered it void as against the judgment creditors.
The statute is as follows:
“Every mortgage or conveyance intended to operate as a mortgage of personal property, which shall not be accompanied by ed immediate delivery, and be followed by an actual and 'continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faitli, unless the mortgage or a true copy thereof shall be forthwith deposited in the office of the register of deeds in the county where the property shall then be situated, or, if the mortgagor be a resident of this state, then of the county of which he shall at the time be a resident.” (Comp. Laws of 1885, ch. 68, §9.)
In Ramsey v. Glenn, 33 Kas. 271, it was decided:
“If a creditor of the mortgagor of a chattel levies upon the property embraced in the mortgage, not accompanied by delivery and possession, before the mortgage is deposited in the. office of the register of deeds in the manner prescribed by the statute, the attachment is a prior lien to the chattel mortgage.”
(See also Tyler v. Safford, 31 Kas. 613; Wilson v. Leslie, 20 Ohio, 161; Jones v. Graham, 77 N. Y. 628; and Jones on Chattel Mortgages, §§ 237, 178.)
In McVay v. English, 30 Kas. 368, referred to as announcing a'cpntrary doctrine, the mortgage was filed September 4, 1880, arid the attachment was not levied until September 6, 1880, twoMays thereafter. In that case, the contention was that the chattel mortgage was void because it was not deposited in the officp of the register of deeds immediately after its execution. We held that the mere fact that the mortgagee omitted for several days or weeks to file his mortgage would not render it void; but we further held that the filing of the mortgage did not relate back so as to invalidate interests or rights obtained to the mortgaged property by creditors or other persons prior to the filing.
In the case of Holden v. Garrett, 23 Kas. 98, also cited as sustaining the contrary doctrine, the mortgage was upon real estate, and the statute relating to the filing of real-estate mortgages was construed to be qualified or limited by the provisions of the statute making judgments liens upon the real estate of the debtor. It was there held that no larger or other interest was taken by the levy of an execution upon real estate than is covered by the lien of the judgment thereon. The decision in that case, on account of the statute relating to judgment liens, is not applicable to chattel mortgages.
If A. J. Davis had no interest in the property seized under the execution, as he testified, the paramount question is, did the chattel mortgage convey to the plaintiffs the property therein described ? We think not. The chattel mortgage recites upon its face that the parties of the first part are “A. J. Davis and George Davis.” The mortgage is signed “Davis &, Son and A. J. Davis.” A. J. Davis testified that his sons George Davis and Harry Davis owned the property on the 18th if August, 1883, at the time of the execution of the mortgage; that his boys George and Harry Davis were partners together under the firm-name of “Davis & Sons;” that he did some business for them, on account of one of the boys being a mute, .but that he had no interest in the business; that the firm of “Davis & Sons” had charge of the farm and owned all the property of the farm, including the hogs and wheat levied upon. A. J. Davis also testified that there was another firm, composed of himself and his son George, doing business under the firm-name and style of “Davis & Son;” that it was organized in 1881, and was engaged in selling farm machinery all over the state of Kansas. Upon the evidence of A. J. Davis it was clearly shown that the firm of “Davis & Son,” composed of himself and George Davis, were not the owners of the property mortgaged, and as a firm had no interest therein; therefore the mortgage executed by “Davis & Son” and by “A. J. Davis” did not aud could not convey or transfer the partnership property owned by “Davis & Sons,” a separate and distinct firm from “Davis & Son.” Each of these firms was engaged in a separate and distinct occupation. If “Davis & Son” and “A. J. Dayis” could not convey any legal title to the property embraced in the mortgage on account of all the property being owned by “Davis & Sons,” a separate and distinct firm from “Davis & Son,” then the plaintiffs obtained neither the legal nor the equitable title to the property described in the mortgage, as neither “Davis & Son” nor “A. J. Davis” had any legal or equitable title to convey or transfer.
It is suggested, however, that if the mortgage was irregularly signed through a mutual mistake, that the court could correct the mistake aud reform the mortgage so as to make it the mortgage of “Davis & Sons,” who were the owners of the property. To this it may be answered that there is nothing in the record showing, or tending to show, that the chattel mortgage was irregularly drawn up or signed through a mutual mistake of the parties.- In the body of the mortgage A. J. Davis and George Davis are recited as parties of the first part. A. J. Davis says the reason he signed the mortgage “ Davis & Son,” was because one of his boys was absent in Ohio; so, from his own evidence, he intentionally and purposely signed it “Davis & Son.” C. W. Jewell, one of the plaintiffs, and the only one who testified, does not claim that there was any mistake in drawing up the mortgage, or in signing the same. He testified in substance, among other things, that he considered A. J. Davis entirely good at the time of the execution of the chattel mortgage; that he supposed that he (A. J. Davis) was a member of the firm which made the application for the loan; that he said the firm of Davis & Son wanted to borrow the money; that his application was for Davis & Son; that he stated they would put up security on the hogs and wheat; that the application was made in the name of the firm, and the security taken in the name of the firm. As all the evidence introduced upon the trial clearly shows that the firm of Davis & Sons carried on the farm, owned all the property on the farm, including the hogs and wheat mortgaged; and as neither “A. J. Davis” nor the firm of “Davis & Son” were the owners of or had any interest in the property mortgaged, the mortgage executed by them did not convey or transfer to the plaintiffs the property in controversy.
The only interest that George Davis had in the property mortgaged was as a member of the firm of “ Davis & Sons; ” but “Davis & Sons” did not convey, nor attempt to convey; therefore, George Davis, as a member of the firm of “Davis & Sons,” made no transfer or conveyance of the property to the plaintiffs. The mortgage does not purport to convey or bind the property of “Davis & Sons.” Upon the evidence introduced in the case, this action should have been brought in the name of “Davis & Sons,” the firm composed of George and Harry Davis. If that firm is 'not estopped from setting up their title to the property in controversy by their actions at the sale, or otherwise, they are the parties entitled to recover, if there was any unlawful conversion of the personal property seized by the defendant upon execution.
The judgment of the district court will be affirmed.
Valentine, J., concurring.
Johnston, J., having been of counsel, did not sit. | [
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The opinion of the court was delivered by
Valentine, J.:
This proceeding in error is brought to this court to reverse an order of the district court made upon an interplea filed by D. P. Johnson under §1 of chapter 137 of the Laws of 1877. (Comp. Laws of 1885, ¶ 3839.) The action was one in which J. A. Brant and U. M. Beachy, doing business under the firm-name of Brant & Beachy, were the plaintiffs, and W. A. Clark was the defendant. Brant & Beachy commenced their action against Clark for $978.48 for services rendered by them as agents in the sale of lands for Clark and others, and in such action obtained an order of attachment against the property of Clark, upon the ground that Clark was a non-resident of the state of Kansas. They also filed an affidavit for garnishment, and gave notice to the officers of the Goodin Bank of Ottawa, for the purpose of garnishing the bank. The notice contained all that was necessary in such a notice, and a great deal more. By the terms of the notice-it was not only attempted to garnish the bank and its officers with respect to all property and credits held by them at the-time of the service of the notice and belonging to Clark, but. it was also attempted to garnish the bank with respect to other property and credits belonging to other persons, and such property and credits also as might come into their hands or debts that might be owing by them subsequently to the service of the notice of garnishment. C. W. Goodin, president of the bank, answered as garnishee for the bank and its officers; and the answer shows that the bank held a large amount of money and notes not belonging to Clark, but belonging to ■ Richmond and Titus, and of course “covered by the notice of the garnishment.” The court then found that a large.amount of money and notes “was covered by notice of the garnishment,” and the bank was ordered to retain $1,100 thereof in its hands subject to the event of the suit and the further order of the court. Afterward, and on September 7, 1885, D. P. Johnson filed his interplea. He claimed to own the aforesaid property and credits himself. Brant & Beachy answered to this inter-plea, and Johnson replied. Upon these pleadings a trial was had before the court without a jury, and the court made special findings of fact and conclusions of law, and stated them separately. The findings of fact are so voluminous that they cannot well be given in this opinion. We will attempt, however, to state the substance of them so far as they are material and necessary for the considerations of the questions really involved in this case. Clark, as the agent of Underwood, Clark & Co., held the legal title to and owned a large amount of land upon which Johnson held a mortgage for $20,000. Clark owed to Brant & Beachy the amount for which they sued him in this action, and he agreed to pay the same out of the proceeds of the sales of the land when paid. Brant & Beachy procured such sales; and afterward, but before such proceeds were paid, informed Johnson that Clark owed them this amount, and Johnson agreed that he would see that it was paid, stating: “I will make the claim mine, and see it paid.” The Goodin Bank was Johnson’s agent to receive the money for him on his mortgage, and to perform various other acts for him. Henry Jayne was Clark’s agent to receive the purchase-money for the land when paid, and to pay the same to Johnson or to his agents, on Johnson’s mortgage. On May 29, 1885, certain of the purchasers paid to Jayne the amount of the purchase-money which they owed, and while he, Jayne, still had it in his possession, Brant & Beachy demanded of him payment of their claim against Clark, but he refused. Jayne then paid the money to the Goodin Bank on Johnson’s mortgage, and the money was placed to Johnson’s credit; and releases, which .had previously been executed by Johnson and placed in the Goodin Bank, releasing the property from Johnson’s mortgage, were handed to the purchasers. Brant & Beachy also, at the same time and before and afterward, demanded payment of their claim from the Goodin Bank, but the bank also refused, and they then commenced this action and garnished the bank in about one hour thereafter. There were many other facts found by the trial court, which we deem immaterial to the consideration of the case by us. The trial court also made the following conclusions of law:
“1. That by their agreements with Wilson and his grantees, the plaintiffs acquired a lien upon the funds arising on sales made by them for the payment of their said claims.
“ 2. Conceding that in the absence of notice the lien of the interpleader under his mortgage was paramount to that of the plaintiffs, still he could waive such priority by parol, and did so waive the same as appears from the 18th finding of fact.
“3. Upon all the facts above stated, the plaintiffs have the superior equity to the fund in controversy, and the same must be held to satisfy any judgment that may be rendered in this action against the defendant W. A. Clark.”
The court then, upon its findings and conclusions, rendered the following judgment:
“ It is therefore considered by the court here that the claim of the said plaintiffs to the $1,100 garnished and attached in the hands of the Goodin Bank is prior, superior and paramount to that of said intervenor, D. P. Johnson, to said fund, and that he take nothing by his said interplea, and that the plaintiffs recover their costs from Johnson.”
The “agreements” mentioned in the first conclusion of law were agreements made by the plaintiffs Brant & Beachy, first with E. E. Wilson, and afterward with Clark, and finally with Johnson, that their claim should be paid from the funds arising from the sales of the land; but how the plaintiffs by such agreements could acquire a lien upon such funds, or how such a lien could be enforced, in a proceeding in attachment and garnishment, it is difficult to understand. A proceeding in garnishment can be maintained only upon the theory that the property attached by such proceeding belongs to the defendant in the action, (which in this ease is Clark,) and not to anyone else. The second conclusion of law is also founded upon the theory that the plaintiffs had a lien upon the aforesaid funds, and that while Johnson may have had a paramount lien thereon, still that Johnson by his parol agreement with Brant & Beachy, waived his priority of lien and conferred priority upon the plaintiffs’ lien. As before stated, we think the plaintiffs did not have any lien upon these funds, and besides, Johnson’s waiver appears to have been wholly by parol and without any consideration whatever; and it was also an agreement to answer for the debt or default of another person. In this connection, however, we might also state that on September 25, 1884, Richmond & Titus, who were Johnson’s agents, wrote the following letter to the Goodin Bank,' which was also Johnson’s agent, which letter reads as follows:
“L. C. Stine, Cashier Goodin Bank, Ottawa, Kansas— Dear Sir: Yours of the 23d at hand. Underwood, Clark & Co. told us they should settle Beachy’s claim. Presume that they will do so if they have to. We think it will be arranged, but perhaps they hope to reduce the demand some. We would prefer to have'the whole amount, but if Beachy’s claim must be settled, let it be done. U. C. & Co. will make the amount good to us.
Yours truly, Richmond & Titus.
We notify U. C. & Co. to-day.”
■ Of course this letter from one agent of Johnson to another agent of Johnson cannot be construed into a contract between Johnson and Brant & Beachy, or as giving to Brant & Beachy a lien upon the funds still in the hands of the purchasers of the real estate but presumably to be paid to the sellers and by them to the mortgagee, Johnson, even if such a lien could be enforced in this kind of proceeding, which it cannot. The third conclusion of law is that the plaintiffs have the superior equity to the fund in controversy. Now proceedings in attachment and garnishment do not lie to enforce preexisting equities or liens in favor of the plaint-ins, whether against the intended, garnishee or some third person, as Johnson was, or some one else, but only to attach something subject to attachment and garnishment, belonging to the defendant, and to subject the same to the payment of the plaintiffs’ claim. Plaintiffs never attach their own property or their own equities or liens, but they merely attempt to attach something belonging to the defendant. If, however, it be supposed that the equity or lien supposed to exist in this case arose simply by virtue of the attachment and garnishment proceedings, then such equity or lien could arise only because the property or fund in the Goodin Bank belonged to Clark when the notice of garnishment was served upon the officers of the bank. But as we understand, there is no such claim made that such property or fund belonged to Clark at that time, but it is admitted that it belonged to Johnson, and it is claimed by Brant & Beachy that they had and still have a prior and paramount equity or lien to and upon about $1,000 thereof, by reason of previous transactions. The fund at that time, which belonged to Johnson and was deposited in the Goodin Bank, consisted of something over $8,000 in money and about $6,500 in mortgage notes, and the mortgage was for $20,000. But certainly whatever may be claimed in this case, the aforesaid fund did not belong to Clark when the service of the notice of garnishment was made upon the bank. When the money was paid to Jayne, who was Clark's agent, who was the agent of Underwood, Clark & Co., it may be said for t~e purposes of this case that it belonged to Clark, but when Jayne paid it into the ~oodin bank on Johnson's mortgage, it then became the property of Johnson, and Clark had no more interest in it than the purchaser of the land who had paid it to Jayne. After that money was paid into the bank, neither Jayne, nor Clark, nor Underwood, Clark & Co., could have maintained an action against Johnson or against the bank to recover it back or to recover any part thereof, and the reason for this is simply that no part of such money belonged at that time to any one of them~ and as it did not belong to the defendant Clark, the plaintiffs procured no equity nor lien nor anything else valuable, by virtue of their attempted garnishment. Garnishment proceedings bind just such. property, money and credits, and only such, as belong to the defendant and are not exempt from attachment and garnishment, and are in the hands of the garnishee or owing by him to the defendant, at the time when the garnishee notice is served upon the garnishee. (Civil Code, § 206.) At to what and the time when the lien attaches, see Phelps v. A. T. & S. P. Rld. Co., 28 Kas. 165; Muzzy v. Lantry, 30 id. 49; B. & M. R. Rld. Co. v. Thompson, 31 id. 180. A plaintiff in garnishment proceedings can never ob-tam a garnishment lien upon more in the hands of the garnishee than the defendant owns, and where the property or fund is exempt from judicial process, he cannot obtain a lien upon even that much.
We think that the able and careful district judge whO tried this case was in some manner or for some reason misled; and believing the judgment to be erroneous, it will be reversed.
All the Justices concurring. | [
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Opinion by
Simpson, C.:
A demurrer was overruled to the petition in this case, and whether that ruling was correct, is the question. Two causes of demurrer were alleged: First, several causes of action are improperly joined; second, said petition does not state facts sufficient to constitute a cause of action.
The substantial averments of the petition are: That on the 30th day of November, 1880, Andrew J. Cavitt was the owner of one hundred and sixty acres of land in Sumner county, and on that day he sold and conveyed the same to J. C. Mathes, by a deed containing general covenants of warranty. Said conveyance was executed by Andrew Cavitt and Mami Cavitt his wife, by which conveyance they covenanted that their title was good, and free and unincumbered, except as to a certain mortgage to one W. F. Irwin, dated September 1,1879. The deed to Mathes.from Cavitt and wife was filed for record on the 15th day of August, 1883, but Mathes took possession of the land on the 30th day of December, 1880, and has remained in the full possession and control ever since. There was recorded in the office of the register of deeds for Sumner county, on the 2d day of June, 1883, a paper purporting to be a mortgage on said land, executed by Andrew J. Cavitt and Mami Cavitt his wife, to L. Keys, the plaintiff in error, on the 1st day of Juiie, 1883, to secure a note executed by Cavitt to Keys, for the sum of $186, made on the 1st day of June, 1883, due the 1st day of June, 1884, with interest at 12 per cent, per annum from maturity. It is alleged that this mortgage is a forgery; that Andrew J. Cavitt in his lifetime, and Mami Cavitt his wife, never executed such a note or mortgage; that it is invalid, and not a lien on the land. The death of Andrew J. Cavitt is averred, and it is alleged that Mami Cavitt was duly appointed the administratrix of his estate. The prayer is, that the note and mortgage be declared of no force or effect; that said mortgage be adjudged to be no lien on said land; that the title of Mathes be forever quieted against said Keys, and said mortgage; that Keys be decreed to deliver said note and mortgage to be canceled, and for other relief.
I. The contention for the plaintiff in error is, that the facts in this case as pleaded show that the causes of action are several, and not joint, and hence that there is an improper joinder. Some tests have been established by this court in the case of Jeffers v. Forbes, 28 Kas. 174, which greatly aid in the determination of the questions involved in this case. One of them is the enunciation of the rule that under § 35 of the code, “ It is not enough that all the plaintiffs should have an interest in the subject of the action; it is essential that they should all have an interest in obtaining the relief demanded.” The inquiry then is, have these plaintiffs below a unity of action, and a unity in the relief demanded ? If this can be affirmatively asserted, there is no misjoinder. So far as Mathes is concerned, his possession under his unrecorded deed from Cavitt and wife would probably be a defense to the lien of the mortgage, if Keys attempted to enforce it against the land; and he has unquestionably the right to commence an action to determine the invalidity of the mortgage, so far as it affects his land. The conveyance from Cavitt and wife to Mathes contained a covenant against liens and incumbrances, and if this covenant is broken by the existence of a mortgage to Keys, they are responsible to Mathes in damages for the breach. Cavitt is dead; his wife is administratrix of his estate. If Mathes had to commence such an action it would be against the administratrix of Andrew J. Cavitt, and Mami Cavitt. Such damages are to be paid out of the personal estate of the deceased; the judgment rendered for them would be. the ordinary money judgment against the estate. Is a married woman liable on her covenants of .warranty? If she is, she had the same interest in the result of the suit that Mathes would have, or that the estate of Andrew J. Cavitt would have. Mathes has a right to protect himself against the payment of this mortgage, because the land he bought was primarily pledged by its terms to its payment. Cavitt and wife had a right to protect themselves from the payment, because it was alleged they executed it, and hence were liable, and because its existence was a breach of their covenants to Mathes; so that it can be fairly said that there was a unity of action in behalf of all the defendants in error, who instituted the suit. It is equally true that they could all be relieved by the same decree. A finding and decree that the mortgage was a forgery would divest the land of any pretended lien cast upon it by the recording of the mortgage, and would divest the estate of Cavitt and Mrs. Cavitt personally of any remaining liability to pay the note and mortgage, or to answer Mathes in damages.
The case of Jeffers v. Forbes, so confidently relied upon, is one in which the widow and heirs of Jeffers made separate and distinct deeds to Forbes for their respective interests as heirs-at-law, in the real estate of the husband and father, and then they commenced a joint action to set their deeds aside, because obtained by Forbes by fraud and deceit. The court says:
“The deed of the widow passed no title away from her children. That deed may stand or fall without in the least affecting any of the other conveyances. Suppose an action was brought to set aside the widow’s deed alone, can it be claimed for a moment that the children would be necessary or proper parties to such an action ? ”
Apply that test to the facts presented here, and suppose Keys had to commence an action for the foreclosure of his mortgage, who would be the necessary parties ? Cavitt, who signed the note and mortgage as principal debtor, would have to be sued. He is dead, and it is clear Mami Cavitt as administratrix of his estate would be a necessary party. Mrs. Cavitt signed the mortgage, and she would have to be a party. Mathes owns the land, and is in the actual possession and control of it, and he is an absolutely necessary party, or the legal title could not be divested if a sale was necessary. If Cavitt had retained the legal title at his death, his heirs would have been necessary parties, but as Mathes holds the legal title, Cavitt’s heirs are not necessary or proper parties; so that it is clear that Mathes, the administratrix of the estate of Cavitt, and Mrs. Cavitt, would all be necessary parties in an action by Keys, to foreclose the mortgage. This establishes unity of liability, and that can be anticipated by unity of action. The relief prayed for avoids liability, by an adjudica tion that the mortgage is a forgery, not a lien on the legal estate held by Mathes, protects the covenants of Cavitt and wife, prevents a personal judgment against the estate of Cavitt, relieves Mrs. Cavitt from liability as one of the makers, of the instrument, and does not lessen her distributive share as one of the heirs of her husband. The relief may not operate on all the plaintiffs below in the same degree, and yet it is common to all. They are each entitled to ask and receive the special relief prayed for. When the court adjudges the mortgage to be a forgery, all legal consequences of that adjudication follow, and result to the benefit of all these parties,, to the extent and degree to which they are interested. Each is relieved from any and all liability incident to the mortgage.
II. The second claim is, that the petition does not state a cause of action. It is not necessary to recite these facts again, for the inference is too plain, from what we have said concerning the first cause of demurrer, that the petition alleges a cause of action. It may not be stated as fully in detail, and with that precision of statement and averment so desirable in a pleading, but all the essential statements constituting a cause of action are embraced therein. There is no error in the ruling of the court below on the demurrer, and we recommend that the judgment be affirmed.
By the Court: It is so ordered.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an appeal from the assessment of damages of a certain strip of land in Phillips county, which was condemned for railroad purposes. The commissioners assessed the total damages of the owners at one hundred and eighty-four dollars; they appealed to the district court, and filed a petition setting forth at length their cause of action. The case was tried in the district court before a jury, and the damages were assessed at seven hundred and eighty-three dollars and forty-nine cents. The railroad company complains, and brings the case here.
After the introduction of a portion of the evidencé on the part of the owners of the land, objection was sustained to the proof of title; thereupon the plaintiffs asked and obtained leave to amend their petition by setting forth the death of Cora L Johnson and the revival of the action in the name of her surviving husband and children. The railroad company objected to the amendments, and also asked for the statutory time in which to plead to the amended petition. The court refused to grant this time, to which the company excepted. This is the first complaint. It appears from the record that after evidence had been introduced tending to show that Cora L. Johnson had died subsequently to the condemnation of the right-of-way by the railroad- company, the company insisted that the petition should show the names of the heirs of Cora L. Johnson, so that the real parties in interest in the case should be before the court. After the pleadings were amended to conform to the suggestion of the railroad company, and in accordance with the leave and order of the court, the railroad company filed its answer, and the case proceeded to trial. After the amended pleadings were filed, no application was made by the railroad company for a continuance, nor was any affidavit at any time presented showing any necessity for any continuance to obtain evidence, or for any other reason. The court had ample power to allow the amendments. After the petition was amended an answer was filed. The cases of City of Atchison v. Twine, 9 Kas. 350, and C. B. U. P. Rld. Co. v. Andrews, 34 id. 563, therefore, are not applicable. In those cases, the petitions were not amended, and there were no allegations therein of new parties.
It appears from the general verdict that the jury assessed the damages of plaintiffs at the sum of seven hundred and eiglity-three dollars and forty-nine cents. In their special findings of fact they stated the damages as follows: Actual value of six and ninety-three hundredths acres of land taken for right-of-way, without reference to any damage to the remainder of the farm, one hundred and seven dollars and forty-one cents; the amount of real and actual damages to the part of the farm north of the right-of-way, three hundred and twenty-five dollars; the real and actual damages to the part of the farm south of the right-of-way, two hundred and eighty-seven dollars; hence there is an excess of sixty-four dollars and eight cents in the general verdict over the aggregate damages in the special findings. As the special findings must control the general verdict, the judgment rendered must be modified accordingly.
Exceptions were taken to the introduction of evidence concerning damages to the crops upon the farm from which the right-of-way was taken. It was the duty of the commissioners assessing the damages for the right-of-way, to determine the value of the crops, etc.; and in view of the modification of the judgment to conform to the special findings, we do not perceive any material error as to this evidence. It is doubtful under the special findings, whether any damages were allowed by the jury for injury to the crops and pasture.
In instructing the jury, the trial court charged that the plaintiffs, after the right-of-way was taken, might use the strip to the same extent as any other citizen. This is true, but the court did not go far enough. But this error is not material, because the court expressly charged the jury that the fee in the land taken in condemnation proceedings, after the taking, remained in the plaintiffs.
There are several other alleged errors, but after an examina tion of all of them, we see nothing in them prejudicial to the interests of the railroad company.
As to the payment into the county treasury of the amount of the judgment that the plaintiffs are to recover, see B. K. & S. W. Rld. Co. v. Grimes, just decided.
The cause will be remanded, with direction to the district court to remit from the general verdict sixty-four dollars and eight cents, and to enter judgment in favor of the plaintiffs against the railroad company for seven hundred and nineteen dollars and forty-one cents.
All the Justices concurring. | [
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Opinion by
Clogston, C.:
The first and principal or material question in this case is, did the relation of passenger and carrier exist between the parties ? for if that relation did exist, then the learned court committed error in sustaining the demurrer to the plaintiff’s evidence. Before a person can claim the rights of a passenger in a public conveyance, he must show that all the reasonable regulations and restrictions known to him, which the carrier has thrown around its business for the safety of the passenger or the convenience of the carrier, have been complied with; and if not complied with, then a good reason must be shown for a non-compliance, and the reason for this non-compliance must be because of some act, omission or fault of the carrier; for it is well established that the carrier has a right to make such reasonable rules and & regulations as will tend to the better protection 0f its patrons, and to the greater convenience of itself; and the rule that requires passengers to procure tickets before taking passage upon freight trains, is a reasonable regulation. (Railway Co. v. Rinard, 46 Ind. 293; St. L. & S. E. Rly. Co. v. Myrtle, 51 id. 566; I. C. Rld. Co. v. Johnson, 67 Ill. 312; K. P. Rly. Co. v. Kessler, 18 Kas. 528.) In this case there is no dispute but that the defendant had adopted a rule that required passengers to procure tickets before taking passage upon freight trains, and that the plaintiff did not procure a ticket before taking passage. The plaintiff, to avoid this rule, showed that it was not complied with on his part: first, because he had no knowledge of the existence of such a rule until informed by the conductor when half-way between Kansas City and Rosedale; second, that he attempted to procure a ticket at the union depot ticket office in Kansas City, and that such ticket office was the place where he had been in the habit of purchasing tickets over the defendant’s line, and the only office or place that he knew of where tickets could be procured. This evidence was not disputed; on the contrary, it was admitted by the demurrer. Where a railroad company desires to enforce such a regulation it must afford reasonable facilities to passengers to comply therewith. The plaintiff showed in addition to this, that when he reached the yard where the train was, he entered the caboose or way-car, and no objection was made to his entering, and no one informed him of the rules of the company. Then by what fault of the plaintiff can it be said that he disregarded the defendant’s rule? But on the other hand, cannot it be said that on account of the failure of the defendant in not keeping its ticket office open, he was prevented from complying with the rules? Under such circumstances as these plaintiff was not a trespasser, but was on the train rightfully as a passenger, an<^ defendant could accept his fare or carry him frea This |jejng true, was there afterward opportunity given the plaintiff by the company to purchase a ticket or comply with the rules ? At Rosedale he made an effort to do so, but failed, and this failure was owing to the fact that the train did not stop long enough at that station for him to procure a ticket. At Merriam he succeeded in purchasing a ticket from there to Lenexa, his destination, and because he did not purchase a ticket from Merriam to Kansas City he was expelled from the train. There is no evidence that such a ticket would have been received; but even if it would, still no information had been given the plaintiff in time to procure one, and the only information he had on the subject was when he presented his ticket from there to Lenexa, and offered to pay his fare back to Kansas City, at which time the conductor asked him, “ why he did not purchase a ticket back to Kansas City ?” This was just as the train was again starting, and there was then no chance to return to the office and purchase such a ticket. This not being the fault of the plaintiff, he would still have the right to his passage on that train, and all the rights of a passenger. He was willing to comply with all the regulations that he knew of, if an opportunity was given him to do so. This was all that it was necessary for him to do to place himself in the relation of passenger to the defendant.
Defendant insists that, as plaintiff was informed of this rule at and before he reached Rosedale, and after being so informed he left the train, that even if he had been a passenger up to that time, by leaving the train he lost his right to reenter without a ticket. We think this claim is not well taken. He left the car, it is true, and reentered with knowledge of the rules; but he left it with the intention of complying with this regulation. It would seem, too, to be a strange doctrine that because of an honest attempt to comply with defendant’s regulations, which theretofore he was ignorant of, he would forfeit all right he then possessed to be treated as a passenger; in fact, had he not made an attempt to comply with the rules the conductor would have been justified in stopping the train and treating him as a trespasser by expelling him therefrom. Then how can the defendant be heard to say that he had forfeited his right to be carried on that train ? This question has recently been settled in other states. In St. L. & S. E. Rld. Co. v. Myrtle, 51 Ind. 574, it was said:
“But such a regulation imposed upon the company the necessity of having the ticket office open a sufficient length of time before the departure of trains to enable passengers to procure tickets. Again, the appellant tried to procure a ticket, but could not do so in consequence of the absence of the agent. He had a right to travel on the train in question without a ticket, by paying the ordinary fare, which he offered to do.”
In that case the conductor of the train informed the appellant before he entered the train that he could only ride thereon by first procuring a ticket, and he was put off the train before it left the yard. (Also, see I. C. Rld. Co. v. Sutton, 53 Ill. 399; I. C. Rld. Co. v. Johnson, 67 id. 312; Lucas v. M. & St. P. Rly. Co., 33 Wis. 41; Chase v. N. Y. C. Rld. Co., 26 N. Y. 523; Stoner v. Pa. Rld. Co., 98 Ind. 388; K. P. Rly. Co. v. Kessler, 18 Kas. 529.)
Again, the plaintiff insists that he did not know of the rule requiring a procurement of a ticket before taking passage on the train, and that not having been so informed he was rightfully thereon, and was entitled to remain until an opportunity to comply was furnished. A passenger is not supposed to know of such a rule. He may know that passengers are carried and not know under what conditions or circumstances, and until informed he is not a trespasser. (Lucas v. M. & St. P. Rld. Co., 33 Wis. 54; Dunn v. Grand Trunk Rly. Co., 58 Me. 187; A. T. & S. F. Rld. Co. v. Plunkett, 25 Kas. 188.)
Plaintiff also contends that the court erred in excluding the evidence of some four witnesses tending to show that this rule ^ie comPany was not enforced on its freight trains. This evidence was competent for two pUrp0ses: first, to show that freight trains on defendant’s road carried passengers for hire; second, to show that no rule was in force requiring the purchase of tickets before entering the train. True, this evidence might not be sufficient to establish the custom when the evidence was given; but if not, then it was the province of the court to so instruct the jury and inform them what evidence it would require to show such custom and disregard of the rules in question. (Stoner v. Pa. Co., 98 Pa. 381; Lucas v. M. & St. P. Rld. Co., 33 Wis. 60; Smith v. Miller, 52 N. Y. 549; St. J. & W. Rld. Co. v. Wheeler, 35 Kas. 185.)
It is recommended that the judgment of the court below be reversed, and the cause be remanded for further proceedings in accordance with the views herein expressed.
By' the Court: It is so ordered.
Valentine, J., and Johnston, J., concurring.
Hobton, C. J., dissenting to the declaration of law as applied to this case. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action for a real-estate dealer’s commission. Plaintiff prevailed, and defendant appeals.
It appears that in August, 1933, the defendant had acquired, through foreclosure, a ranch of 16,680 acres in Comanche county. Through one P. G. Holmes, managing officer of its real-estate department, it made an agreement with the plaintiff, a Salina real- . estate dealer, to pay him a specified commission to procure a buyer for the ranch at a price of $5 per acre. Plaintiff called upon one George C. Davis, who seems to have been a man of large means, and endeavored to interest him in the ranch. About the same time plaintiff notified- defendant that he had made contact with Davis as a prospective purchaser. Plaintiff submitted to Davis two plats, one of the ranch and another showing its relation to neighboring ranches, and gave Davis other information about it. When first approached on this subject by plaintiff, Davis was about to purchase a large ranch near Manhattan, through the agency of another real-estate dealer, R. D. Jones. Davis told plaintiff that he was contemplating the purchase of several ranches, as he feared the country was about to embark in financial inflation.
After several personal and telephone conversations and correspondence between Davis and plaintiff, Davis promised that he would go and look at the ranch as soon as he could conveniently do so. Plaintiff made arrangements for transportation to take Davis to see it. Pending these negotiations and arrangements, defendant wrote to plaintiff as follows:
“October 6, 1933.
“We have had some correspondence with you relative to the Arrington ranch in Comanche county of 16,680 acres. . . .
“This is to advise you that we have decided to withdraw this ranch from the market until December 6, 1933. I am giving you this information so that you will not make any attempt to sell the same, as we would not care to consider any deals on this ranch until after December 6, 1933.”
Following receipt of this communication plaintiff told Davis “we couldn’t deal on the ranch until after December 26, 1933.” Responding thereto Davis said “after that time we would talk again.”
Sometime after the expiration of the period during which plaintiff had been directed by defendant to suspend his efforts to sell the ranch, plaintiff called at Davis’ office in Kansas City in the further pursuit of his endeavors to sell it to Davis. He was told that Davis had gone to Florida and would return the latter part of February, 1934. While in Florida Davis’ fears about inflation recurred, and by long-distance telephone he instructed one of his partners, Merrill, in Kansas City, to get in touch with one Jones, the real-estate dealer through whose agency Davis had bought the Manhattan ranch during the preceding autumn, and to go with Jones to look at certain ranches in western Kansas and Texas, but did not give Merrill any instructions to inspect the Comanche county ranch which plaintiff for some months had been trying to sell to him.
Davis returned from Florida on February 16, and according to his testimony Jones at once commenced to urge him to buy the Comanche county ranch. Davis testified:
“I returned from Florida about February 16. On my return Jones came in to see me and brought up the question of the Arrington [Comanche county] ranch. I put him off from day to day and then offered a bid of $85,000 if he would bring a signed contract within an hour. That was February 23. He came back with Mr. Holmes and I signed the contract and gave them a check for $10,000 on account.”
Following this purchase of the ranch by Davis, plaintiff demanded his commission. That being refused led to this lawsuit, in which plaintiff prevailed. In addition to the verdict in his behalf the jury answered special questions thus:
“1. Was the plaintiff in this case an agent for the defendant in the sale of the ranch in question? A. Yes.
“4. If you answer question number 1 ‘yes/ did plaintiff Gurley make any effort to sell the ranch to George H. Davis after December 6, 1933? A. Yes.
“5. If you answer question number 4 ‘yes/ of what did that effort consist? A. A trip to Kansas City to contact George H. Davis. Upon finding that George H. Davis had gone to Florida, Mr. Gurley left word to be notified upon Mr. Davis’ return from Florida.
“6. What agent of the defendant first brought the ranch in question to the attention of the purchaser, George H. Davis? A. Mr. Ben Gurley — in a direct way.
“7. What agent of the defendant was the proximate, predominating and procuring cause of the sale of the ranch in question to George H. Davis? A. Mr. Ben Gurley.”
Judgment was entered for plaintiff, and defendant assigns various errors, the first of which pertains to the overruling of the demurrer to plaintiff’s evidence. Our summary of the facts gleaned from the record as above makes it rather obvious that under the liberal rules of law to which this court has always adhered in dealing with real-estate dealers’ commission cases, the overruling of defendant’s demurrer to the evidence was quite proper. (Grimes v. Emery, 94 Kan. 701, 146 Pac. 1135 and citations; Osburn v. Moore, 108 Kan. 90, 193 Pac. 892; Brotton v. Dawson, 137 Kan. 44, 19 P. 2d 467.)
Appellant, however, stresses the literal language of plaintiff’s witness, who testified that under his employment by Holmes, managing officer of the defendant bank, plaintiff was only to be paid a commission “if he could consummate a deal which would be satisfactory to them.” It is argued that to “consummate” means to bring to completion, to finish, to achieve; and Webster is given as au thority. But a fair reading of the testimony makes it clear, we think, that the word “consummate” was merely the choice of words of the witness. He did not intend to convey the idea that all the details of a sale of real estate, such as securing the signature of a buyer to a written contract of purchase and sale, and a deed of conveyance duly signed, sealed and delivered, had to be consummated, completed, finished or achieved by plaintiff before he would be entitled to his commission. (Brown v. Gilpin, 75 Kan. 773, 90 Pac. 267; Orr v. Rieger, 133 Kan. 558, 300 Pac. 1074.)
It is next contended that defendant was entitled to an instructed verdict. This argument is apparently based on certain evidence that the sale of the ranch was brought about by Jones, and not by plaintiff. It is doubtful if there was even a plausible talking point before the jury to that effect; certainly it was no more than that; and an instructed verdict would have been highly improper in view of the ample evidence adduced to establish plaintiff’s cause of action.
Error is next urged on the instructions given and refused. This is predicated, in part, upon the testimony discussed above — that plaintiff’s contract of agency was to “consummate” a sale, not merely to find a buyer. We have already held the testimony should not be given such a strictly technical meaning. In this connection defendant also contends that plaintiff abandoned his efforts to sell the ranch to Davis on October 6, 1933, and thereafter he was not a contributing factor in the sale of the ranch. We think not. In obedience to defendant’s order, plaintiff suspended but did not abandon his efforts to procure Davis as a buyer. Moreover, we think the record makes it clear that plaintiff’s work was so far accomplished before defendant directed him to halt his efforts for sixty days that little remained to be done after December 6. He had already apprised Davis of the merits of the ranch; Davis and plaintiff had agreed to talk it over after the sixty days had expired; but instead of doing so his fears of inflation so obsessed him that he decided “on an hour’s time” to buy the ranch. Davis’ course would justify an inference by the jury that he was merely collaborating with defendant to beat the plaintiff out of his commission. Defendant cites cases like Trimble v. Dowell, 118 Kan. 733, 236 Pac. 644, which in our opinion has little resemblance to the case at bar other than that two real-estate agents were trying to sell the land. In that case the controlling facts were so clear and uncontroverted that the court quite properly decided which of the agents had been the procuring cause of the sale. Here, as we have already said, it was a jury question; and indeed not a difficult one when, in addition to the other evidence, this testimony of Davis was weighed in the jury’s scales of credence:
“I returned from Florida about February 16. On my return Jones came in to see me and brought up the question of the Arrington ranch. I put him off from day to day and then offered a bid of $85,000 if he would bring a signed contract within an hour. That was February 23. He came back with Mr. Holmes and I signed the contract and gave them a check for $10,000 on account.”
It is finally argued that the trial court erred in refusing to set aside the answers to the special questions, and particularly the second sentence of the answer to special question number 5. Counsel for plaintiff concede that the literal fact stated in that sentence was not established by express testimony; that it was only an inference of fact justified by the circumstance that when plaintiff went to Kansas City about the Christmas holidays to continue his negotiations with Davis according to their prearrangement he was informed that Davis had gone to Florida. Be that as it may, this finding is not vital to plaintiff’s action. If the trial court had struck it out it would not warrant a change in the result, nor defeat plaintiff’s right of recovery. It did not detract from the controlling potency of the jury’s special findings 1, 6 and 7. Plaintiff’s work as the procuring cause of the sale of the ranch was largely done before December 6. In view of the circumstances after that date it mattered little that Davis closed the deal without further conversation with plaintiff.
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The opinion of the court was delivered by
Wedell, J.:
This was an action for damages resulting from personal injuries due to a gas explosion. Both parties have appealed.
Plaintiff obtained judgment in the sum of $1,313. He is dissatisfied with the amount, and appeals from the judgment of the trial court overruling his motion for a new trial on the single and separate issue of damages only. Defendant appeals from judgment against it on assignments of error to be mentioned later. Plaintiff contends defendant is precluded from its cross-appeal for reasons to be stated hereafter.
The material evidence introduced by plaintiff was that plaintiff was injured as a result of a gas explosion in the basement of the Methodist church at Augusta on the 27th day of February, 1934. Defendant owns a gas-distributing system in Augusta, and the Methodist church was one of its customers. Defendant’s gas lines run to the property line of .the church. It has two meters, one to the east of the church, and the other in the southeast corner of the church basement. The explosion occurred in the northwest corner of the basement. In this corner is a room used by the Men’s Bible class on Sundays, and by Boy Scouts during the week. A gas stove was located in the fireplace with a pipe which connected it to the flue. The basement had in it, also, a furnace and cook stove. The explosion occurred on Tuesday, February 27. On the previous Wednesday, February 21, Ralston, the janitor, testified he went to ths gas company’s office and told Gillespey, its local manager, he had been smelling gas in the basement of the church for two or three months. He says he tojd the manager there was a leak and he would like to have it fixed. Gillespey says the janitor met him at a drug store and that the j anitor asked him if the gas company would take care of it. At any rate, Gillespey told the j anitor the plumbers did not like to have the gas company do such work and he should get someone else to fix the leak. This conversation took place at about two o’clock in the afternoon of February 21, and the janitor then went to the hardware store of Paul & Penley and talked to plaintiff Paul about the leak. Paul was a member of- the church. Paul suggested to the janitor that he get a man by the name of Kelly to fix the leak. The janitor accepted plaintiff’s suggestion and made arrangements with Kelly to fix the leak. The next day. February 22, Kelly went to the church and the janitor took him to the northwest room in the basement and then left. Kelly was there about half an hour and afterwards told the janitor he had fixed the leak. (Defendant in its brief says Kelly told Gillespey that he had fixed the leak.’ We are unable to find evidence in the record concerning that conversation between Kelly and Gillespey). The church paid Kelly for his services.
Kelly was subpoenaed by the defendant, but was not found. His evidence of what he did is therefore lacking. Counsel for plaintiff in his opening statement said:
“Mr. Kelly went down to the church at the time he was called and found that there was evidently a loose coupling or union near the place where the stove connected on to the pipe, and he turned it and the gas made a sizzling noise and he got a wrench and tightened it.”
On Friday, February 23, the Reverend Mr. Moore, the pastor of the church, called Gillespey and told him he had smelled gas in the basement of the church. Gillespey told Mr. Moore that Ralston had previously talked to him about it,- and that he, Gillespey, had told the janitor to get someone to fix it. Later in the trial Gillespey was asked, “In your conversation with Doctor Moore, on Friday, did you say anything about Ralston having phoned you or what you had told him or what he had told you?” Witness answered: “I don’t remember whether I did'or not.” On Friday evening, Ralston, the janitor, talked with Mr. Moore, and when asked if there was a leak in the basement he told Mr. Moore there was, but he had it fixed. The pastor said it must be a hold-over where the gas smelled.
On Sunday, February 25, the church services were held as usual. About twenty men met and used the northwest basement room. The furnace and the gas stove in the northwest room were used that morning. There is no evidence in the record before us that there, was any smell of gas in the church on that Sunday or in the classroom. McCray, who was injured with the plaintiff, Paul, at the time of the explosion, is a trustee of the church. McCray testified that he attended the Men’s Bible class that Sunday morning, and did not detect any smell of gas.
On the following Tuesday, February 27, the plaintiff and McCray went to the northwest basement room, according to their testimony, for the purpose of fixing the isinglass in the gas stove. The plaintiff, Paul, knew there had been a leak in this room, but believed Kelly, the man he recommended to the janitor, had fixed it. Plaintiff testified the janitor said he was going to get Kelly to fix it and that he relied on the fact that Kelly had fixed the pipes or whatever was wrong, and for that reason did not think there was, any gas there. The plaintiff further testified that he had heard, or Ralston, the janitor, had told him, that Kelly had been there and had done some work. Neither the plaintiff nor McCray smelled gas when they entered or while they were in the northwest room on February 27, the morning of the explosion. They opened the door to the room but did not turn on the electric lights. The electric lights were attached to the ceiling and were not sufficiently bright to disclose what they desired to examine on the inside of the stove door for the purpose of removing and replacing the isinglass in the stove door. They were examining the stove when plaintiff bent down and struck a match, after which an explosion occurred. The flames encircled them and burned much of their clothing. Plaintiff suffered burns on his hands, wrists, ankles and on a knee. He also suffered burns on his face and neck. His hearing was affected and the scars on his face caused the eyelids to droop. An eye specialist testified his eyes moved normally, pupilary reflexes were normal and he had normal vision in each eye, but that the primary trouble with his eyes was due to the fact the minute scars pulled the lower lids away from the eyeball, so the tear ducts did not come in contact with the eyeball, as they have to in order to function and drain the tears from the eyes. He further testified that an operation would be necessary to correct the condition. He said he had performed about fifty such operations and had never failed to get improvement, although he had failed in some instances to get an entire recovery, and that the cost of such an operation and total expense would be about $200.
An orthopedic surgeon testified concerning the burns on plaintiff’s hands and stated that the right hand was disabled about 75 percent, the left hand, 35 percent, and that both hands could be improved provided surgical treatment were undertaken. He questioned whether plaintiff would be able to do intricate work with his fingers and that while the appearance of his hands would whiten a little, the skin would remain thin. He said the operation would cost between $150 and $200.
There was evidence concerning pain and suffering. The evidence also showed the amounts plaintiff had actually incurred for medical, hospital and nurse’s services. The hospital bill was $456.10, Doctor Holt’s bill was $263, Doctor Seydell’s bill was $10, Doctor Lutz’s bill was $5, special nurse, $13, or a total of $747.10. The above bills had been paid. There was no evidence as to charges of Doctor Rombold and Doctor Brownell. There was no evidence that any arrangement had been made to have the operations performed which ■were suggested by the surgeons. The case was tried about one year after the accident occurred.
Plaintiff had been in the hospital about seven weeks and also asked compensation in the sum of $147 for his wife, who had taken care of him in place of a nurse, subsequent to the first two days of his injury. She testified also that her expenses incurred while staying with him at the Wichita Hospital were between two and three dollars a day.
Plaintiff testified that he was a member of the firm of Paul & Penley, engaged in the hardware business at Augusta, and that by reason of his interest in that firm he had been drawing $100 per month both before and after the accident. He was an expert electrician and had received seventy-five cents an hour for such work. He stated he had been producing three or four thousand dollars a year for the firm by reason of his electrical work, but that there had not been much electrical work for some time. He received $100 per month from the firm whether he did electrical work or not. This, however, was by reason of his interest in the firm. Pie stated that he was in the store every day waiting on customers, and supervised whatever electrical work was done, and that he went to work at about eight o’clock in the morning and stayed until five or six in the evening. The foregoing constitutes the material portion of plaintiff’s evidence.
There was defense evidence that defendant had tested the pipes after the explosion, and that there'was a large amount of gas leakage at that time; the explosion tore up part of the concrete floor; the only leaks found after the explosion were in the pipe under the concrete floor; if there had been that much leakage before the explosion it probably would have blown up the church; if the janitor had gone to the office and reported a leak an investigation would have been ordered; defendant’s records showed no complaint; the reason for not making an investigation was not due exactly to the fact the janitor had not reported to the office, but because he did not offer it as a complaint and just mentioned it casually and wanted to know what could be done about it; it was suggested he get some one to fix it; if it had been made as a complaint the company would have investigated it; there was nothing in the manner, words, gestures and actions of the janitor on February 21 that led Gillespey to believe there was a dangerous and hazardous condition existing in the church.
The janitor also testified on behalf of defendant that he talked with Mr. Moore on Friday night (February 23), following the day the j anitor talked to Gillespey and that Mr. Moore asked him whether there was a leak in the basement and that he told Mr. Moóre he had it fixed and that Mr. Moore said, “It must be a hold-over where the gas smelled.”
There was also defense testimony that when gas is present in a building so that the odor can be detected it is a condition that should be investigated. There is much other testimony in this record, but we do not deem it necessary to narrate it for the purpose of properly determining the questions presented on this appeal.
The jury returned answers to special questions as follows:
“1. When did the defendant first receive notice or knowledge that there was a leak in the basement of the church? A. February 21, 1934.
“2. If you find that prior to plaintiff’s injuries someone other than the defendant did inspect and repair said leaks, then state: (a) Who undertook to do such work? A. Kelly, (b) Who employed and paid such person for his work? A. M. E. Church (Janitor Ralston) M. E. Church treasurer, (c) When was the work done? A. Thursday, February 22.
“3. What facts or information concerning a leak in the church building did defendant have that was not within the knowledge of the plaintiff? A. Second notice through the Reverend Moore.
“4. Was the condition in the gas pipes in the basement from February 21, 1934, to February 27, 1934, considered dangerous and hazardous by: (a) Ralston, the janitor? A. No. (b) Paul, the plaintiff? A. No. (c) Gillespey, the defendant’s agent? A. Yes.”
The verdict was for the sum of $1,313. Plaintiff says this verdict decides the issue of defendant’s negligence. In the light of what we shall say later, we deem it unnecessary to determine that question. Let us 'assume, however, for the subject just now under consideration, that negligence has been established. Plaintiff filed motion for new trial on the separate issue of damages alone. This motion the court overruled. Plaintiff contends a new trial can be granted on one of several separable issues. That is conceded. (R. S. 60-3004; Bracken v. Champlin, 114 Kan. 882, 220 Pac. 1027; Brockmann v. Lawson, 117 Kan. 386, 232 Pac. 601; Friesen v. Western Grain Dealers Ins. Co., 119 Kan. 513, 240 Pac. 414; Fontana v. Integrity Mutual Casualty Co., 120 Kan. 406, 243 Pac. 1035; McGarr v. Schnoor Cigar Co., 125 Kan. 760, 266 Pac. 73; Wagner v. Clay County Commissioners, 128 Kan. 127, 276 Pac. 74; Carlgren v. Saindon, 129 Kan. 475, 283 Pac. 620; Converse v. Wichita Gas Co., 132 Kan. 291, 295 Pac. 635; Durkin v. Kansas City Public Service Co., 138 Kan. 558, 27 P. 2d 259.)
Damages and negligence are separable issues. This court has-frequently held that the above statute applies where the only issue remaining undetermined was the amount of- damages. (See last above-cited cases.)
Plaintiff contends that a separate trial should have been granted on the issue of damages alone. R. S. 60-3004, insofar as here applicable, reads:
“A new trial shall not be granted as to any issues in a ease unless on the pleadings and all the evidence offered at the trial and on the motion for a new trial the court shall be of the opinion that the verdict or decision is wrong in whole or in some material part, and the new trial shall be only of the issues as to which the verdict or decision appears to be wrong, when such issues are separable.”
This statute makes it plain that a new trial shall not be granted unless the trial court is of the opinion the verdict or decision is wrong in whole or in some material part. It is therefore clear that much is left to the discretion of the trial court. In discussing the above statute this court in the case of Brockmann v. Lawson, supra, said:
“The order will not be modified so as to compel a new trial as to the amount of damages only where it does not appear that the court abused its discretion in granting a new trial as to all issues in the action.” (Syl.)
In the course of the opinion this court further said:
“If a trial court has discretion in granting new trials, it follows that the court has like discretion in determining whether the new trial shall be granted as to only part of the issues.” (p. 388.)
In the case of Durkin v. Kansas City Public Service Co., supra, this court, in construing the provisions of R. S. 60-3004, said:
“ ‘The allowance or denial of a motion to set aside a judgment and grant a new trial is a matter resting in the sound discretion of the trial court, whose action thereon will not be reversed unless an abuse of such discretion is apparent.’ (Bateman v. Preisser, 123 Kan. 217, 254 Pac. 1028.)” (p. 562.)
In the instant case the trial court overruled the motion for new trial on a material part of the verdict, namely, the issue of damages only. It must therefore be assumed the trial court, in the light of the pleadings and on all the evidence and in consideration of all that was said and done at the time of the motion for new trial, was of the opinion the verdict was not wrong as to the separate issue of damages. That does not mean the trial court might not have sustained a verdict for a larger sum. It does mean the trial court at least did not consider it wrong to the extent it was willing to disturb the wishes and opinion of the jury as reflected by its verdict. Shall we say this view of the case, in consideration of the entire record, constituted an abuse of sound judicial discretion on the part of the learned trial court? We do not think so. There is no showing here and none was made to the trial court that this jury was swayed by passion or prejudice against the injured plaintiff and in favor of the defendant corporation. Such prejudice would be indeed a most novel situation in a personal-injury case against a corporation. There is no complaint concerning the admission or exclusion of evidence; no complaint is made here by plaintiff regarding the instructions. There is no indication the jury did not follow the instructions. Plaintiff says the jury did not follow the instructions. He says the verdict for $1,313 covered only medical and hospital expenses. The evidence, as heretofore narrated, is clearly to the contrary. Plaintiff calls attention to the following portion of the court’s instructions relating to the subject of expenses:
“Plaintiff further alleges that he incurred expenses for nursing, medical services, and hospital in the sum of $1,313, that he was damaged in the sum of $25,000, for which sum he asks judgment against the defendant.”
The above portion of the instructions simply covered what plaintiff claimed in his petition. Plaintiff omits the instruction which immediately follows the above quotation, and which omitted portion contains the specific instruction as to the measure of damages on the subject of expenses incurred. It reads:
“If you should find for the plaintiff, in determining the amount, you will take into consideration the expense he has incurred jor medical and hospital service, the pain and suffering which he has endured as a result of his injuries, and if permanently injured this should also be taken into consideration. No definite rule for determining damages for pain and suffering or permanent injury can be stated, but it is a matter wholly within the discretion of the jury and for the jury to determine, and -in this case if you find the plaintiff entitled to recover at all, then you will allow him just such amount as you feel will reasonably compensate him for his pain and suffering and for his permanent disability, if you find that he is permanently disabled, in addition to his expenses so incurred by reason of his injuries. . . .” (Italics inserted.)
The evidence is plaintiff incurred medical and hospital expenses and doctor bills in the exact sum of $747.10. There was evidence that his wife incurred additional expenses by reason of being at the Wichita Hospital where she could wait on plaintiff, in the sum of $2 or $3 per day for seven weeks. Assuming she spent $2.50 per day, her expenses in this connection would have been $122.50 or a total expense of $868.60. This constitutes the total expenses of all kinds actually incurred. That is what the instruction said he could recover.
Plaintiff urges he is entitled to recover for nursing services of his wife, which services he says took the place of a nurse. We are referred to no decisions that a husband is not entitled to his wife’s services under such circumstances and our limited time for search has revealed none.
Plaintiff calls attention to possible prospective surgical expenses. There was testimony on that subject. Certainly plaintiff, as every other human being, is entitled to whatever future assistance, surgical and medical, science can supply to improve and, if possible, restore his previous physical condition. He had, however, incurred no such surgical expenses by the time of trial about one year after the accident. The jury allowed $443.40 in excess of all expenses incurred.
In the case of Converse v. Wichita Gas Co., 132 Kan. 291, 295 Pac. 635, this court had occasion to consider the precise complaint of inadequate damages. In that case plaintiff also asked for a new trial on the question of damages alone. Plaintiff in that case asked damages in the sum of $25,000. The jury returned a verdict in the sum of $1,250. Plaintiff had incurred expenses for doctors, nurses and hospital services in the sum of $480.70. It was contended the balance, $770, was inadequate to compensate' for damages to health, physical condition, pain, suffering and prospective pain, suffering and loss of time and work. This court affirmed the ruling of the trial court denying a motion for a new trial on the separate issue of damages. It was said:
“There is no evidence that the jury was swayed by passion or prejudice; no misconduct on the part of the counsel; no evidence that the jury ignored entirely some one or more elements of damage that it should have considered.” (p. 294.)
In the same opinion this court further said:
“Is it so inadequate as to compel the feeling of dissatisfaction with a revulsion from it at the mere contemplation? This question must be answered in the negative.” (p. 295.)
In the case of Van Vrankin v. Railway Co., 84 Kan. 287, 114 Pac. 202, the following language was applied to this exact issue:
“It is hard to measure the injury, and still harder to estimate it in dollars and cents, and in the absence of any showing of misconduct indicating passion or prejudice we must leave the matter as determined by the jury, who saw the appellee and heard her testify.” (p. 292.)
In the case of Hardwick v. Railways Co., 114 Kan. 843, 845, 220 Pac. 1043, this court, in disposing of a subject similar in principle, used the following language:
“There is no uniform yardstick, no hard and fast rule, by which the ex-cessiveness of a verdict can be measured and determined as in ordinary mathematical calculations.”
(See, also, Ellis v. Kansas City Public Service Co., 131 Kan. 555, 292 Pac. 939.)
The same language is applicable to a complaint concerning an alleged inadequate verdict.
Plaintiff does not want a retrial on the issue of negligence. He is not willing to surrender what he terms an entirely inadequate or a mere medical and hospital expense verdict. He insists upon holding fast to what he has. This court is asked to overrule the trial court, completely separate the negligence and damage features of the case and grant him permission to go before another jury and to present to that jury the sole issue of damages. He could then argue that all negligence features on part of this defendant corporation have been thoroughly and conclusively established by judgment and that all the jury need now consider is the terrible condition of this plaintiff and how much it will require to compensate him for damages sustained.. While negligence and damages are legally separable issues and while this court has on numerous occasions granted new trials on the issue of damages alone, yet under all the circumstances in this case we do not believe such ruling would be fair to defendant. Defendant asks judgment on its demurrer to plaintiff’s evidence, that answers to certain questions be set aside as not supported by the evidence, and for judgment non obstante veredicto, and contends that it should have been granted a new trial. Plaintiff says defendant, by reason of certain facts to be narrated later herein, is precluded from a cross-appeal. That contention, if true, does not preclude, and plaintiff does not contend that it precludes, defendant from objecting to a new trial on the single issue of damages. Under a similar situation this court in the case of Friesen v. Western Grain Dealers Ins. Co., 119 Kan. 513, 240 Pac. 414, said:
“The evidence abstracted and the answers to the special questions disclose that the amount of damage sustained by the plaintiff is so intimately connected with other questions in the case that the amount of damage sustained by him cannot be tried separately and a just conclusion be reached. There is nothing to show that the trial court abused its discretion in refusing to grant a new trial on the question of damages alone.” (p. 516.)
In consideration of the evidence disclosed by the entire record in this lawsuit we have no reluctance in saying the trial court did not abuse sound judicial discretion, and the denial of a new trial on the question of damages alone was eminently correct.
This brings us to a consideration of defendant’s cross-appeal.' Defendant urges various assignments of error. Plaintiff insists defendant is precluded from a cross-appeal. If plaintiff is right we of course need not consider defendant’s contentions of error.
Plaintiff filed a motion here asking this court to dismiss defendant’s cross-appeal. In support of that motion are attached affidavits which narrate the facts upon which plaintiff relies. On June 4, 1935, this motion was temporarily overruled. It was not overruled because the court was of the opinion it lacked merit, but because it did not desire to try the case in piece-meal fashion. The motion is before us now for the first time on its merits.
The basis of plaintiff’s motion to dismiss the cross-appeal is the delivery of a check by defendant to the court clerk covering the amount of the judgment, including interest and costs. The check was left with directions. The affidavits were made by the court clerk and one of defendant’s attorneys. They relate the facts concerning the check transaction. The affidavit of the attorney is in substance as follows: On March 25, 1935, he delivered to the clerk a check of the defendant company in the sum of $1,365.30 and at the time of delivery of the check stated to the clerk in substance, that in order to save costs of an execution he would like to deposit the check with the clerk with the understanding that in case plaintiff took an appeal the check would be redelivered to affiant, as the defendant in that event desired to take a cross-appeal; that, the clerk accepted the check under the above circumstances, but further stated that in order to protect himself, he would prefer to deposit the check and in case affiant requested the return of the money, that he would then issue his own check for the amount and deliver it to affiant; that the check was delivered to the clerk only upon the above conditions and subject to the rights of affiant to withdraw the same in case plaintiff took an appeal.
The affidavit of the court clerk is in substance as follows: After narrating the complete history, including all post-trial motions and rulings thereon, and the final judgment, in substance stated: No execution was ever issued upon the judgment, no praecipe for execution was filed, no stay of execution was requested by either party and no order for stay of execution or to supersede the judgment in any manner was ever made; on March 25, 1935, defendant and its attorneys delivered to affiant its check in the sum of $1,365.30, being the amount of the judgment, interest and costs; at the time of paying said, sum into court the attorney for defendant stated in the event plaintiff declined to accept the amount of his judgment and appealed, defendant désired to withdraw the money so paid; affiant cashed the check and deposited the proceeds thereof with the other funds in his hands as such clerk; thereafter and on April 10, plaintiff filed his notice of appeal and acknowledgment of service of copy thereof on defendant; on April 18, affiant upon demand of defendant paid to defendant by check drawn upon the account of affiant as clerk, the sum of $1,365.30; at time of receiving such check, one of defendant’s attorneys made and filed an affidavit, a true and correct copy of which was attached to affidavit.
It will be observed from the affidavits there is some difference in the version of just what the understanding was on the occasion of the delivery of the check. It illustrates exactly what misunderstandings may and do frequently occur between men of the highest integrity. It is just such experiences as this and a great many other varieties of incidents that make necessary a firmly established principle forbidding appeals under circumstances indicating previous acquiescence in judgments.
Plaintiffs contention in his motion to dismiss the cross-appeal was and now is — no execution having been issued, no praecipe for execution having been filed, no stay of execution having been requested, no stay order having been entered, the judgment not having been superseded in any manner — the delivery of the check to the court clerk was voluntary and bars an appeal. Plaintiff further urges this conduct constitutes acquiescence in the judgment that was rendered and further that this conduct is inconsistent with the cross-appeal and it is for that reason barred.
That the check was voluntarily deposited cannot be questioned. No execution had been issued and no praecipe for execution had been filed. In the case of Round v. Power Co., 92 Kan. 894, 142 Pac. 292, this court ordered the case dismissed because the judgment for costs had been paid. It said: “It does not appear that an execution had been issued or that the payment made by plaintiff was involuntary.” (Citing Waters v. Garvin, 67 Kan. 855, 73 Pac. 902; State v. Conkling, 54 Kan. 108, 37 Pac. 992; York v. Barnes, 58 Kan. 478, 49 Pac. 596.) The case of Bank v. Bracey, 112 Kan. 677, 679, 212 Pac. 675, was an action to recover on a note. The defense was the note had been procured by false representations. Judgment was rendered in favor of defendant and against plaintiff for costs. Plaintiff appealed and later paid the. costs. A motion to dismiss the appeal was here sustained. This court said:
“The cashier pleads ignorance of the consequences of his conduct, and the board of directors of the bank declares it had no intention of abandoning the appeal. In no case in which an appeal has been dismissed was it the intention of the party recognizing validity of the judgment to prejudice his appeal, and in several instances the intention not to prejudice the appeal was expressly declared.” (Citing State v. Conkling, 54 Kan. 108, 37 Pac. 992; York v. Barnes, 58 Kan. 478, 49 Pac. 596.)
In the case of Hajny v. Hajny, 117 Kan. 419, 232 Pac. 611, plaintiff recovered a money judgment and defendant asked for a stay of execution for six months pending an appeal. The court granted the stay oh condition defendant pay into court certain sums on certain dates. Defendant paid part of the money into court and then perfected his appeal. Appellant contended he was contesting only a part of the judgment rendered against him, and the sum paid represented the uncontested portion. This court said:
“The record does not sustain this contention. "The defendant contested plaintifí’s claim in its entirety and every element composing it, and denied that he owed plaintiff any sum.” (p. 420.)
This court in that case further said:
“Appellee contends that this payment by defendant is such a recognition of the judgment as precludes him from’ contesting the validity of the judgment on appeal. The point is well taken. When a money judgment is rendered against a party to an action, he-cannot pay the judgment and thereafter question its validity on appeal.” (p. 419.)
In the case of Hyland v. Hogue, 131 Kan. 512, 292 Pac. 750, a suit was brought upon six separate and distinct items and plaintiff received judgment on one of them. He accepted the amount upon this one claim, receipted therefor in writing and in the receipt attempted to reserve his right of appeal as to the remaining items, with the following express condition written into the receipt: "This release not to affect remaining claim now in litigation and pending on appeal.” On appeal as to. the remaining items he contended the receipt clearly showed an intention not to be bound by the judgment, not to acquiesce therein and not to waive his right of appeal. This court dismissed the appeal and said:
“The rule is founded upon the well-established principle that litigants must be consistent. They cannot be permitted to change and shift their position in an inconsistent manner. The orderly administration of justice is best advanced by a firm insistence upon this principle. It is simply an application of the homily that one cannot eat his cake and have it.” (p. 515.)
In the case of Wilhite v. Judy, 137 Kan. 589, 21 P. 2d 317, plaintiff was arrested for a traffic violation and posted a $7.50 bond. He was convicted and fined $3.50. He had authorized the chief of police to take the fine and costs out of the cash bond he had posted. This was in writing. The chief of police did so and placed the money with the city treasurer. Thereafter appellant attempted an appeal to the district court where his appeal was denied. This court held:
“The payment [of the fine] constituted an acquiescence of the judgment and necessarily defeats an appeal.” (p. 590.)
In the case of Paulsen v. McCormack, 133 Kan. 523, 1 P. 2d 259, plaintiffs sued in ejectment and were defeated. Judgment was entered against plaintiffs for costs. One of the plaintiffs páid the costs and the other appealed. A motion to dismiss was filed here accompanied with an affidavit which stated no execution was issued upon the judgment, no praecipe for execution had been filed and no stay of execution was requested or ordered. This court dismissed the appeal. It said:
“To get out of this dilemma counsel predicate an argument on what they choose to characterize as the involuntary payment of the costs by one of the appellants. But the adjective ‘involuntary’ does not fitly apply. There was no impending levy upon the property of Mary to satisfy the judgment, no execution had been issued, nor praecipe for execution filed. It was simply a case where apparently a final judgment ought to be satisfied, and no record reason then existed why it should not be satisfied. . . . Time and again it has been held that anything that savors of acquiescence in a judgment cuts off the right of appellate review, and payment of costs by a defeated litigant falls in that category. . . . Moreover, it is so very easy in this state to procure a stay of execution, supersedeas, or the like, which would halt an execution for costs, that we are constrained to believe that in those jurisdictions which hold that satisfaction of a judgment for costs does not constitute such an acquiescence in the judgment as -to preclude an appeal the facility with which a stay of execution can be obtained in this state does not exist.” (pp. 526, 527.)
See, also, Miltimore v. City of Augusta, 140 Kan. 520, 38 P. 2d 675.
Defendant urges that it deposited the check because it is a public service corporation and could not permit an execution to be issued on the judgment rendered, and to avoid additional expense and to prevent embarrassment and unfavorable publicity that would result on the issuance of an execution and that the check was delivered upon the conditions stated in the affidavits.
If the check was intended to avoid an execution then it must follow that the check was intended to be used in payment of plaintiff’s judgment in the event a praecipe for execution was filed. If the check was delivered to the court in order to avoid additional expense and to prevent embarrassment, that would result on the issuance of an execution, then again it must have been intended by defendant to have the check used in payment of plaintiff’s judgment. Can it be logically contended this conduct does not savor of acquiescence?
Defendant relies upon the cases of Feight v. Wyandt, 79 Kan. 309, 99 Pac. 611; Bank v. Bracey, 112 Kan. 677, 212 Pac. 675; Hajny v. Hajny, 117 Kan. 419, 232 Pac. 611. The first case is not in point. In that case the motion to dismiss the cross-appeal was denied because the payment was after execution had been issued and this court held the payment was involuntary. In the last two cases cited the motion to dismiss was sustained by this court on the principle of acqiriescence. These cases do not support defendant’s contention.
Webster’s New International Dictionary defines acquiescence as, “Passive compliance or acceptance: .... distinguished from avowed consent on the one hand, and, on the other, from opposition or open discontent.” The delivery of the check constituted not only passive compliance with a judgment in the sum of $1,313 and interest, but it represented satisfaction with and avowed consent to that judgment, coupled with directions to pay that amount to plaintiff if he would accept it. If that was not the-purpose of the check it was absolutely useless and without function. This construction is clearly disclosed by the version of the clerk as to his understanding of the matter. He said: “In the event plaintiff declined to accept the amount of the judgment and appealed . . . defendant desired to withdraw the money so paid.” That is not all the delivery of the check represented. Judgment had been rendered against defendant for costs. The check in the sum of $1,365.30 covered the court costs. Can it be said this does not savor of acquiescence? In the case of Bank v. Bracey, supra, this court reviewed the earlier cases on the subject. In the light of what was said there and subsequently on the same subject, under numerous and varying circumstances, it must be plain this court has no inclination to diminish or impair a principle which to it appears both salutary and sound. The principle is whatever savors of acquiescence in a judgment in whole or in part, precludes appellate review. The cross-appeal must therefore be dismissed. The judgment of the trial court denying plaintiff’s motion for a new trial on the' issue of damages alone is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for a declaratory judgment to construe a will. Judgment was for plaintiffs. Defendants appeal.
Testator owned a great deal of real estate. By the provisions of his will he created four trusts. He devised all of his property to trustees and directed that they establish and maintain a fund to be known as the A. J. Rice memorial fund to establish professorships and procure the teaching of psychological therapeutics, physiology and hygiene, and the prevention and cure of certain diseases, in the high schools at Hill City and Effingham, Kan., and in the university of Kansas and Salina Wesleyan university. They are charitable trusts.
The effective part of the will is contained in the second codicil. We are concerned with paragraphs 3, 5 and 7 of that codicil. Paragraph 3, as far as it concerns us, is as follows:
“I do further give, devise and bequeath unto the said James H. Rogers, Earl Farrish, C. L. Cummings and W. S. Heffelfinger and W. L. Sayers, all the rest and residue of my estate both real and personal, remaining after paying the preceding bequests in this will made, in trust however, for the following uses and purposes, to wit: . . .”
Paragraph 5 reads as follows:
“The said trustees and their successors in trust shall invest and reinvest the remainder of my estate after the same has been converted into cash, in such high-class securities as will produce the largest income without impairment of such fund. . . .”
Paragraph 7 reads as follows:
“. . . and I hereby authorize the aforesaid trustees or their successors to convey any real estate belonging to my said estate or trust without the order of the court and at such time or times as in their judgment it is to the best interest -of said trusts that the same be sold and conveyed, all matters pertaining to the price and terms of payment to be left in the discretion of my said trustees.”
By paragraph 10 of the second codicil the will named the same men as executors who were named trustees. This paragraph reads as follows:
“I hereby appoint James A. Rogers, Earl Farrish and C. L. Cummings and W. S. Heffelfinger and W. L. Sayers executors of this my last will and testament and authorize them to lease or sell and convey by deed any and all real estate belonging to my said estate without first procuring an order of the probate court directing the same, when in the judgment of said executors it is deemed to be to the best interest of my said estate, and until said real estate be sold that said executors manage my said real estate and turn over the income thereof to my said trustees, but if at the expiration of two years from the date of the probating of this will any of said real estate shall remain unsold, my said executors shall thereupon convey by deed all of my said real estate remaining unsold to the aforesaid trustees, in trust for the purposes and to carry out the trusts aforesaid, and I hereby authorize the aforesaid trustees or their successors to convey any real estate belonging to my said estate or trust without the order of the court and at such time or times as in their judgment it is to the best interest of said trusts that the same be sold and conveyed, all matters pertaining to the price and terms of payment to be left in the discretion of my said trustees.”
The executors made final settlement and were discharged.
On December 29, 1934, the trustees executed oil-and-gas leases on a large tract of real estate to defendant Scott. These leases are for primary terms of ten years from their dates and as long thereafter as oil and gas, or either of them, are produced from the leased premises. Under their terms the landowner would receive one eighth royalty for oil and gas produced. A yearly rental of fifty cents an acre is to be paid for the privilege of deferring the commencement of drilling operations. The practice in the oil business is for some party to acquire leases on a large number of tracts of land, all adjacent. This is called a block. The leases involved in this case are all part of a block. All of these leases are to be delivered to Scott if he or his assigns commence operations for the drilling of a test well at some point on the block of which they are a part on or before the first of July, 1935. If this well is not started 'these leases are to be returned to the lessors.
The Vickers Petroleum Company is a defendant in this case. It has purchased these leases from Scott and has agreed to commence a test well on or before July 1, 1935, provided the title to the leases in question are merchantable. The purpose of this action is to secure an adjudication of the authority of the trustees to execute the leases in question. If they had this authority then the leases are good and it is the duty of the Vickers Petroleum Company to proceed to drill.
The petition set out the facts about as they have been given here and in addition alleged that the trustees are authorized to manage the real estate in question or to sell or dispose of it and that this authority was included in the general authority and purpose of the will.
The Petroleum company and Ira Scott are the defendants in this action. They filed an answer in which they admit the allegations of the petition. The prayer of the answer is for a declaration of the rights of the parties. The trial court entered judgment that the plaintiffs had authority to lease the land in question for oil-and-gas development and that the leases were valid. This appeal is from that judgment.
The defendants point out that the will provided that after the estate had been converted into cash it was to be invested in securities. No specific provision was made for management and leasing. The will further provides that after two years the executors shall convey to the trustees the real estate remaining unsold to carry out the purpose of the trust. The only authority conferred upon the trustees is to convey the real estate without the order of the court where in their judgment it is to the best interests of said trusts that the same be sold and conveyed. Defendants argue from these facts that any power of the trustees to execute oiLand-gas leases must be implied.
Plaintiffs take the position that the title vested in the trustees is full and complete with no restrictions whatever except that the proceeds of any conveyance shall be used for the purposes of the trust.
This is a case where this court will be guided in a measure by what is common knowledge with reference to the oil-and-gas industry and farming conditions in this section.
Testator died in 1926. His will provided that after two years any of his real estate that remained unsold should be conveyed by his executors to the trustees under his will.
■ The sale of the large amount of farm lands that is involved here could not be carried out at a moment’s notice. The character of the lands and of the farming industry is such that it must be sold piece by piece. It is doubtful whether more than a quarter section or half section may profitably be sold at any one time. For most of the time since the death of testator the market for real estate, especially in the part of Kansas where the bulk of this land lies, has been depressed. To have thrown this large amount of land on the market at one time would have resulted in its selling for ruinous prices. Such conduct would have been derelict on the part of the trustees. Where does this lead us?
If the trustees hold the land until a more favorable time for sale comes, they must do something with it. To let the land lie idle is out of the question. Taxes must be paid. Buildings and fences must be kept in repair. Means must be found to do these things.
Obviously in this case the trustees cannot farm the land themselves. Widely scattered as it is, this is out of the question. The manner in which such a situation is' met by other landowners similarly situated is to lease the land to somebody who will farm it. Clearly the trustees have this power under the terms of the will. The rule is laid down in 65 C. J. 791 as follows:
“Trustees possess general power to lease trust property on such terms, conditions, and rentals as are reasonable and customary for that class of property in the particular vicinity, . .
This reasoning is helpful to us in consideration of the power of the trustees to lease for oil and gas. The authority to make a farming lease is implied in the general authority conferred on the trustees by the will because it is the only way in which the trustees are able to carry on. •
It. is an equally well-settled rule that a trustee must do everything in his power to preserve the property and to prevent waste. (65 C. J. 694.)
The section of the state where the land in question is located is undergoing considerable oil activity. While it is what is known in the vernacular as wildcat territory, this court cannot close its eyes to the probability that well-developed fields nearby may extend into this vicinity. The drilling of an oil well in the general neighborhood is certain. If we should hold that the trustees cannot lease, then if a well should be brought in near these lands the valuable oil will be drained from beneath the surface and the trust would suffer. Certainly if the trustees cannot lease they cannot drill. If they cannot lease now they cannot lease if their land should turn out to be in the midst of such a field as that located in Texas where the royalty from oil wells located on school land is great enough to support the state university of Texas. Thus, while lawyers and courts are holding against the power to lease by a strict construction, the value of the property which the testator left will slip away.
Something like this was in the minds of this court in the case of Newell v. McMillan, 139 Kan. 94, 30 P. 2d 126. In that case the guardian of minor children had executed an oil-and-gas lease on property owned by the minors. Consent of the probate court to this lease had been secured. This court reviewed the statutes of the state which give the probate court jurisdiction to authorize an outright sale of minors’ lands and held the lease valid. The court said:
“This court takes judicial cognizance of well-known facts respecting the oil-and-gas industry in this state (Kemp v. Gas Co., 103 Kan. 595, 598, 175 Pac. 988), and it is perfectly obvious that when adjacent lands were being prospected and developed for the production of oil and gas the minors’ lands would be subjected to waste by subsurface drainage of their valuable but fugacious minerals if appropriate steps were not speedily taken to bring about offset development. And thus the sale of such an interest in the minors’ lands as would conserve their estates against waste was lawful and proper and commendable. And the sale of a right to explore and develop the property for oil and gas — in other words, the leasing of the property for oil and gas— was sanctioned by statute and by order of the probate court as a proper method of conserving the minors’ estate against waste.” (p. 103.)
While that case is one of a guardian and his ward there is no more reason why a trustee should not be empowered to execute an oil-and-gas lease than that a guardian of a minor should not be.
We are aware of the fact that there are authorities which hold that a devise of land to a trustee with general power to manage, rent, lease and control does not confer power on the trustee to execute an oil-and-gas lease.
A case that is called to our attention is Ohio Oil Co. v. Daughetee, 240 Ill. 361. In that case, however, as in others that have been examined, there was a remainderman to whom the fee title in the land would go upon the happening of some contingency. The court held that to permit the trustee who held the title for a term merely to execute an oil-and-gas lease and thus take part of the value of the land away would constitute waste against the remainderman. We do not have any such a case as that here. The rental received from the oil-and-gas lease will be used to pay taxes and upkeep and there is no remainderman who may suffer. Whatever of value that flows to the trustees should oil or gas be discovered in paying quantities will be used for carrying out the purposes of the trust. As has been seen, the waste would occur if the lease was not signed.
The case of Zinc Co. v. Freeman, 68 Kan. 691, 75 Pac. 995, is one where this court held that an executor and trustee did not have authority to execute an oil-and-gas lease under a will that directed him to take charge of the land in question and lease and maintain the same in repair and good condition with a view to obtaining the best income from the land without permitting the same to deteriorate in value or quality. In that case there were some legatees whom the court held would suffer if the lease were held valid. This reasoning is followed in 4 Bogert’s Trusts and Trustees, section 793. There it is said:
“Where a trust for charitable purposes is to continue for a definite period or for a life or lives, the leasing of the tz'ust property is subject to the same considerations and rules that would be applicable if the trust were private. Whez’e the trust is to be perpetual, however, the probable duration of the trust and the conflicting interests of life beneficiaries and remainderznen are no longer restrictions on the trustee’s power to lease. Nevertheless, whether the power to lease be expressed or implied, the lease must be reasonable and for the benefit of the chaz-ity.”
There is a further distinction. These cases turn upon the holding that the oil and gas is a part of the real estate and that a lease conferring on the lessee the right to take oil and gas from beneath the surface is in reality a sale of an incorporeal hereditament. See Burden v. Gypsy Oil Co., 141 Kan. 147, 40 P. 2d 463. The will in chis case confers on the trustees the fee-simple title with full power to sell and convey. Since the execution of an oil-and-gas lease is a conveyance of a right to enter the real estate and take out the oil and gas found, this will, strictly construed, confers on the trustees the authority to execute such a lease. The authority to convey the fee by a warranty deed carries with it the authority to convey an incorporeal hereditament.
In 49 C. J. 1272 the rule is laid down as follows:
“A power to sell ordinarily does not authorize a lease, although the donee of a power to sell and dispose of property has been held to have power to lease it where circumstances justified such action, in pursuance of the purpose for which the power was created.”
The exception in the above rule is sustained by Hedges v. Riker, 5 Johns. Ch. Rep. (N. Y.), 163. The chancellor held:
“A devise to executors in trust for C for life, and if she died without issue, then in remainder over, with power to the executors ‘to sell and dispose of so much of the real estate as should be necessary to fulfill the will,’ is sufficient to authorize the executors (the persons in remainder being infants) to execute leases for years, of the real estate, for such terms and upon such conditions as were reasonable and necessary to carry into effect the intentions of the testator, expressed in the will.”
The rule is laid down in 4 Bogert’s Trusts and Trustees, § 793, as follows:
“A power to lease will be implied where it is the intention of the donor that the property produce an income for the use of the charity.”
The case of The City of Richmond v. Davis, 103 Ind. 449, is one where the will devised land to one for life with remainder in trust for the education of the children of Richmond. The trustees leased the land to the city for the purpose of erecting public buildings thereon. The leases were attacked on the theory that the trustees had no authority to execute them. The court said:
“It appears from these authorities that the law is, that trustees possess general power to lease trust property, and as they do possess this power, their leases, if executed according to law, are valid unless they exceed the quantity of the estate vested in the trustees, or the leases are unreasonable. The leases described in the complaint do not exceed the quantity of the estate vested in the trustees. The trustees succeed in a perpetual line, and their duties are to make the trust estate yield the greatest revenue, and there is nothing in the complaint showing that they have not adopted a course that will produce this result.”
No matter what designation is used to describe an oil-and-gas lease the power to execute it is incidental to the holder of the fee-simple title.
In 4 Bogert’s Trusts and Trustees, this question is discussed. At section 784 it is said:
“The existence and extent of such an implied power is to be ascertained from the trust instrument and from all of the circumstances, including the nature and condition of the trust property, existing when it was made.”
From what has been said heretofore in this opinion with reference to this estate, the condition of the farming industry and the condition of the oil-and-gas industry leads to the conclusion that the trustees in this case had authority to execute the leases in question.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This was an action in partition brought by one of the devisees under the will of her grandfather, in which she was by the terms of the will given an undivided one twentieth interest in and to all of the property of which her grandfather died seized and possessed, real, personal and mixed. The land is described in the petition and all the other devisees were made parties defendant and their respective shares in the estate were named as stated in the will.
There were four other grandchildren besides the plaintiff, each of whom received a one twentieth interest under the will, making a total of one fourth of the estate. One son, Elmer, and two daughters, Mary and Ruby, each were given by the will an undivided one fourth of the estate. The petition further alleged that no part of the real estate was' a homestead and it was all susceptible to partition. All the other devisees answered, and aside from the correction in the description of some of the real estate the allegations of the petition are not denied by any of them.
In the separate answers of Mary, one of the daughters of the deceased, and the four Partain grandchildren of the deceased, a new matter was introduced which they called a receipt on account of advancements, and it was pleaded as a modification of the allowances made by the terms of the will. It is as follows:
“Agreement for Daniel Simpson,
Blue Mound, Kansas, December 16, 1930
“We, the undersigned son and daughters of Daniel Simpson, or D. L. Simpson, hereby acknowledge the receipt of the following money, land and notes as an advance part of our shares (whatever same may be) of the estate of Daniel Simpson, up to this date:
“Elmer B. Simpson, son, acknowledges the receipt of the following: A deed to the following real estate: the southwest % and the south % of the northeast 14 of section 1, twp. 23 S., R. 21 E., containing 240 in Linn county, Kansas:
“Acres more or less, valued at....................................$12,000.00
One note, valued at............................................. 1,135.50
Cash advanced on barn ......................................... 601.21
Cash advanced.................................................. 584.54
$14,321.25
“Mary Gibbs, daughter, acknowledges the receipt of the following notes:
“One note for.................................................... $2,000.00
One note for ................................................... 4,201.65
$6,201.65
“Ruby Violet DePuew, daughter, acknowledges the receipt of a deed to the following real estate: the southwest Vi of section 2, twp. 22S., range 21, containing 156 acres more or less, in Linn county, Kansas, fractional:
“Valuation ...................................................... $7,020.00
“We agree and acknowledge that we have received of Daniel Simpson the above-named amounts and understand that the same is an advance part of our shares of his estate.
“Dated this 16th day of December, 1930.
“In witness whereof we hereunto subscribe our names this 16th day of December, 1930, and acknowledge the execution of the same.
“Elmer B. Simpson.
“Mary S. Gibbs.
“Ruby Violet DePuew.
“Subscribed to before me this 16th day of December, 1930.
“(Seal) C. A. Hiatt, Notary Public.
“My commission expires January 19, 1931.”
This receipt was sometimes called in the pleadings a family settlement, although it was made about two weeks before the execution of the will of the deceased and eleven months before his death.
Findings of fact and conclusions of law were made by the trial court and judgment was rendered in favor of the contention of the daughter Mary and the Partain children on April 17, 1934, from which the son Elmer appeals. The daughter, Ruby, and the plaintiff are not represented here on appeal.
A number of preliminary objections to the scope and extent of the appeal may properly be traced to the omission from the abstract of the correct date of the rendition of the judgment, which is supplied by a corrected or supplemental abstract. This, together with the denial of jurisdiction of the district court in the reply of Elmer as to the new feature injected into the partition case, the reference in the journal entry to the ruling on the demurrer to the evidence, the reference in each of the two motions for a new trial as to the decision being contrary to the evidence and to the specific language of the specifications of error, disposes of the preliminary questions raised and urged by the appellees and entitles the appellant to a review as to the errors of which he complains.
Aside from the question of jurisdiction of the district court to hear and determine the new matter of advancement, indebtedness, family settlement or whatever it may be called, that was brought into the partition action by the appellees, we shall conclude that there was sufficient evidence before the court to support the findings of fact made by the trial court, which findings are as follows:
“1. That Elmer B. Simpson, Mary S. Gibbs and Ruby Violet DePuew, on December 16, 1930, signed a paper in which they acknowledged the receipt of certain real estate and personal property from Daniel Simpson, their father, and that the same showed on its face, and the court finds the facts to be, that Elmer B. Simpson, Mary S. Gibbs and Ruby Violet DePuew received real estate and money as follows:
“Elmer B. Simpson:
Real estate valued at..............................$12,000.00
Money, one note ................................. 1,135.50
Money on barn................................... 601.21
Money, cash advanced............................ 584.54
$14,321.25
“Mary S. Gibbs:
Money, one note ................................. $2,000.00
Money, one note ................................. 4,201.65
6,201.65
“Ruby Violet DePuew:
Real estate valued at .......,.................... $7,020.00 $7,020.00
“2. That there is no evidence showing, nor is there any claim made, that the real estate and money passing to Elmer B. Simpson, Mary S. Gibbs and Ruby Violet DePuew were gifts to them, respectively, by Daniel Simpson in his lifetime, nor that they purchased and paid for said real estate, or that they gave anything in value for the money so received.
“3. That Daniel Simpson died on November 16, 1931, and left a last will and testament dated December 30, 1930; that said will has been probated in the probate court of Linn county, Kansas, and that said will made no reference to any real or personal property passed to Elmer B. Simpson, Mary S. Gibbs or Ruby Violet DePuew, but by the terms of said will gave one fourth of all his estate to Elmer B. Simpson, one fourth to Mary S. Gibbs and one fourth to Ruby Violet DePuew, and the other one fourth to his five grandchildren, Emerel Partain, Kenneth Partain, Zula Wright, Doris Partain and Louise Partain, in equal shares, which grandchildren were sons and daughters of two deceased daughters of the said Daniel Simpson.
“4. That the real estate described in the petitions and various pleadings by the different parties, of this suit was the property of Daniel Simpson at the time of his death, and is described as follows, to wit (description omitted) and is subject to partition.”
The first conclusion of law is as follows:
“1. That the instrument signed by Elmer B. S'impson, Mary S. Gibbs and Ruby Violet DePuew, mentioned in paragraph one of the findings- of fact, bound them to pay to the estate of Daniel Simpson out of their shares in said estate the respective amounts therein set forth, and that by reason of the conduct of said parties they are now estopped from denying the binding force and effect of said instrument.”
The second conclusion of law finds the proportionate share of the estate of the deceased to which each devisee is entitled.
The first part of the third conclusion of law is as follows:
“3. That Elmer B. Simpson is indebted to the estate of Daniel Simpson in the sum of $14,321.25; that Mary S. Gibbs is indebted to the estate of Daniel Simpson, deceased, in the sum of $6,201.65; and that Ruby Violet DePuew is indebted to. the estate of Daniel Simpson, deceased, in the sum of $7,020; and that in the partition of. the real estate involved in this action Elmer B. Simpson, Mary S. Gibbs and Ruby Violet DeRuew shall be charged with the respective amounts they are found hereby to be indebted to said estate, and they are hereby required to account to said estate for said amounts out of their share of the real estate partitioned in this action, and in the event that their respective shares in this real estate be insufficient to satisfy their'indebtedness to said estate, then judgment for the balance due shall be entered against them or either of them for such amount as is due to be determined by this court at that time, said judgments to be in favor of the administrator of the estate of Daniel Simpson, deceased, and the amounts of said judgments withheld from their respective shares in, said estate in making final distribution of the estate of said Daniel Simpson, deceased, in the probate court of Linn county, Kansas.”
The appellant first argues that the items in the written instrument referred to are not and cannot be advancements, and appellees contend, we think correctly, that the conclusions reached by the trial court concerning them do not make them advancements, but items of indebtedness to the estate of the deceased.
Appellant asserts as a third ground that the judgment of the district court cannot be sustained on the theory that the instrument signed by him and his sisters was in the nature of a family settlement. In this the appellees agree, although this was an allegation in one of the appellee’s answers. This leaves for consideration the second point raised by the appellant that to sustain the judgment the instrument above referred to would have to be .read into and be a part of the will of the deceased.
As to whether the findings of fact support the conclusions of law we shall be especially concerned with three things: the jurisdiction of the district court to hear and determine in a partition suit matters of indebtedness due the estate of a decedent, the question of reading into a will a paper signed by children before the will was written, and the question of estoppel.
Article 21 of chapter 60 of the Revised Statutes of Kansas limits partition to real property. However, R. S. 60-2114 states that—
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.”
Among the decisions of this court construing the section quoted are those cases involving accounting as between cotenants for matters like rents received, taxes paid or improvements made. One of the most recent cases along this line is Beeching v. Beeching, 135 Kan. 242, 10 P. 2d 7, where one of the tenants in common and in charge of the property for himself and others received a large amount of money not fully accounted for to the others.
In the case of Mackey v. Mackey, 99 Kan. 433, 163 Pac. 465, one cotenant excluded another cotenant from possession of the common property, and the court properly charged her share of the property with the fair rental value of the property during the time she dispossessed the other.
In Sawin v. Osborn, 87 Kan. 828, 126 Pac. 1074, the real property was incapable of being equally divided, there being a difference of $250 in the only possible division which could be made, and the court held that to charge the share of one party receiving this more valuable portion with that difference was within the terms of the statute in the making of a just and equitable partition between the parties.
The facts in the case of Peoples State Bank v. Staley, 120 Kan. 650, 244 Pac. 1061, are quite similar to those in the case at bar, but it was not a partition action. It was a question of whether the judgment of a creditor of one of the heirs of a decedent was prior to the rights of the other heirs when the debtor heir also owed the estate a large sum and had, subsequent to the death of the ancestor, entered into a contract with the other heirs about his indebtedness to the estate.
In the case of Blackwood v. Blackwood, 120 Kan. 72, 242 Pac. 451, the quarrel between the heirs was concerning a debt owing by one of them to the estate'of the decedent. The action was not one in partition but one to quiet title.
The case which was followed in the Staley case was Wilson v. Channell, 102 Kan. 793, 175 Pac. 95, and there an heir owed his ancestor before his death, and his coheirs were held to have a superior lien on his distributive share of the estate above that of a general creditor of such heir.
In the case of Banner v. Welch, 115 Kan. 868, 225 Pac. 98, it was held:
“But this decree should not be treated strictly as one in partition. This is a suit in equity and the court, having jurisdiction of the parties and of the subject matter, has power to and should render such decree as is just and proper under all the facts and circumstances of the case.” (p. 871.)
Kuhn v. Kuhn, 112 Kan. 155, 210 Pac. 343, was where after the death of the testator the devisees met and entered into a contract of partition of real property, and the court upheld such subsequent-contract.
The case of Parks v. Snyder, 126 Kan. 446, 268 Pac. 814, was where the heirs of an intestate entered into a partition agreement and one of the heirs owed the estate, and in an action to enforce the agreement his share was held chargeable with the same and interest thereon.
The following is a general rule stated in the syllabus in Thresher Co. v. Judd, 104 Kan. 757, 180 Pac. 763:
“As a general rule, a court in decreeing partition has power to adjust the equitable rights of all the parties interested in the estate, so far as they relate to and grow out of the relation of the parties to the common property.” (Sybil 1.)
All the facts in this case relate to matters occurring after they became joint tenants and therefore grew out of the common property. Another case along this line is the recent one of Dawson v. Dawson, 136 Kan. 471, 16 P. 2d 946, where partition was regularly granted, then followed a foreclosure action against one of the five owners in favor of the other four before the partition was put into effect, and the main controversy was as to the priority of the lien of the cotenants over an outside creditor. Our attention has not been directed to any partition action where the district court ascertained and decreed an indebtedness of a devisee to the estate of the testator based on an instrument executed before the execution of the will.
R. S. 20-1101 gives the probate court jurisdiction over certain matters, the seventh item of which is—
“. . . to have and exercise the jurisdiction and authority provided by law respecting executors and administrators, and the settlement of the estates of deceased persons.”
The findings of the trial court show that the will had been admitted to probate in the probate court of Linn county. In Correll v. Vance, 127 Kan. 840, 275 Pac. 174, it was held:
“Where a party has a plain and adequate remedy by an ordinary legal proceeding in a probate court, touching a matter over which the probate court is already exercising jurisdiction with ample power to grant the relief prayed, he may not invoke the jurisdiction of the district court to accomplish the same purpose.” (Syl.)
It was held in the case of Keith v. Guthrie, 59 Kan. 200, 52 Pac. 435, that—
“In matters pertaining to the distribution of a decedent’s estate the probate court has exclusive jurisdiction subject to appeal to the district court.” (Syl. ¶[ 1. See, also, Holden v. Spier, 65 Kan. 412, 70 Pac. 348.)
The original jurisdiction of the matter here involved concerning the collection of debts owing to the estate rested exclusively in the probate court where the administration of the estate was pending.
We do not think the district court by its findings or conclusions read into its construction of the will the statements contained in the instrument signed by the three children before the making of the will. It is only the result reached by the court that gave the construction that effect.
We do not think the findings of fact support the conclusion of the trial court that the three children of the deceased are now estopped from denying the binding force and effect of the instrument signed by them. In the case of Street Lighting Co. v. City of Wichita, 101 Kan. 452, 168 Pac. 1090, it was held:
“Where the element of estoppel is involved in a waiver of a contract right, there must be some willful misrepresentation or fraudulent conduct tending to mislead or prevent the other party to the contract from doing what it is privileged to do to protect its rights.” (Syl. ¶ 2.)
In Schott v. Linscott, 80 Kan. 536, 103 Pac. 997, the elements of estoppel are stated, and without here enumerating them it must be said that the findings nowhere state that the representations contained in the written document were known to the parties es-topped and unknown to the party claiming the benefit of the estoppel. If thé relation consists of the three children on one side and the testator on the other, no one knew better about the indebtedness of the children to him than he did himself, and there could have been no misrepresentation or concealment in the matter. The one here really claiming the benefit of the estoppel is the daughter Mary, and some of the grandchildren join her, and she is one of the parties making the representations.
Estoppel was found in the case of Anderson v. Stockwell, 130 Kan. 103, 285 Pac. 526, but that was a foreclosure case and the acquiescence therein was the basis for the estoppel in the foreclosure case.
The findings do not support the conclusion of the trial court as to the question of estoppel, and for this reason, and for the want of jurisdiction of the district court to try and determine in a partition action matters of indebtedness to the estate of a testator when the settlement of his estate is pending in the probate court, the 'conclusions and judgment in these respects are set aside.
The judgment is reversed, and the cause is remanded for further consideration and decision along the lines herein indicated. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the defendant from a conviction and sentence upon four counts for the violation of the provisions of article 12 of chapter 17 of the' 1933 Supplement, being chapter 140 of the Laws of 1929, in the unlawful sale of securities which had not been registered as required by that act.
The appellant, although having made numerous objections and motions during the progress of the trial and a motion for new trial after conviction containing the statutory grounds, has assigned eight specific errors, but has consolidated them into three questions involved, as follows:
"1. Is the promissory note given in this case an exempt security under section 17-1224, subsection 6, R. S. 1931 Supp.?
“2. Is the evidence sufficient under the various counts of the information to warrant conviction?
“3. Other questions involved relating to rulings and objections to offering evidence on motion to discharge, requested instructions, instructions given, and motions, including motion for a new trial.”
The information charged the plaintiff in four separate counts, all alike except as to date, names of parties with whom defendant dealt and amounts, in the following language:
. . That J. E. MacLean ... at the county of Shawnee, in the state of Kansas, aforesaid, and within the jurisdiction of this court, on the - day of September, a.d. 1932, did unlawfully, feloniously and willfully sell and barter certain securities, to wit, one certain contract or certificate for six shares of interest in and to a holding company to be formed, which said contract or certificate of interest was then and there in words and figures as follows, to wit:
“ ‘H. Crossland Pfaff, Chicago
“ ‘Chicago, III., September 1, 1932.
“ ‘Received of Byron Spears two hundred fifty (250) dollars for and in consideration of my note of even date for period of six months. I hereby agree to deliver to Byron Spears, six (6) shares of interest in and to a holding company to be formed to take over the ownership and control of the Pfaff steam unit, consisting of motor, boiler and burner for automobiles, airplanes, trucks, buses, speed boats, yachts, etc. The shares of interest in Pfaff holding corporation is only as bonus for use of said sum money.
“ ‘Signed: J. E. MacLean.
“‘Witness: Virginia Knight.’
“without the said J. E. MacLean or . . . any other person, firm, association, corporation or broker having first registered said securities with the state banking department of the state of Kansas and having received a permit for the sale of said contract or certificate of shares of interest from the state bank commissioner Hinder order of the state charter board of the state of Kansas and said security then and there at the time not being registered under the Kansas securities law and this he, the said J. E. MacLean, . . . did, contrary to the form of the statutes in such case made and provided, and against the peace and dignity of the state of Kansas.”.
The record shows that at the same time the defendant gave to each of these four different parties, with whom he is alleged to have dealt, his individual note for the amount mentioned in the document copied in the information above, the first part of which note was as follows:
“$250
“On or before six months after date, for value received, I promise to pay to the order of Byron Spears two hundred fifty and 00/100 at 7% per annum, after date. . .”
A similar note was given to the alleged purchaser in each of the counts.
The theory and contention of the appellant in this case is that t.he defendant borrowed this money from these various parties for the perfecting and completing of this steam unit and that said transaction of borrowing money is not within the speculative securities act, that the defendant gave his own personal promissory note in return for the loan of the money borrowed and by the terms of the agreement gave the shares of interest in and to the holding company to be formed as a bonus.
Appellant calls particular attention to the language of R. S. 1933 Supp. 17-1226, the first part of which is as follows:
“No securities, not exempt by section 2 hereof, shall be sold within the state of Kansas except in a manner exempted by section 3 hereof, unless or until such securities have been registered as herein provided.”
Appellant argues that not every sale of securities is prohibited under this section, but that only the sale of securities not exempt by section 2 of the act, sold in a manner not exempted by section 3, is made an offense under the statute, and then argues that his six-month note was the security sold and delivered in this case and the shares of interest in the steam unit were as a bonus, that he did not sell the shares of interest, but delivered them with his promissory note simply as a bonus for the loan of the money, and then directs attention to the definition of a sale which includes a reference to bonus in section 1 of the act, being R. S. 1933 Supp. 17-1223, subdivision (2), and also to subdivision (6) in section 2 of the act, being R. S. 1933 Supp. 17-1224, which provides that—
“(6) Commercial paper or negotiable promissory notes maturing within six months from the date of issue.”
The part of said subdivision (2) of section 1 above referred to is emphasized by appellant to confirm his theory as to a bonus in this case. It is as follows:
“Any security given or delivered as a bonus with any sale of securities, as such sale is herein defined, or with any other thing, shall be conclusively presumed to constitute a part of the subject of such sale and to have been sold for value.”
This court has considered this matter, aside from the question of the note being for only six months, and held as follows in the case of State v. Dobson, 140 Kan. 445, 37 P. 2d 10:
“In a prosecution for violation of the speculative securities act by sale of unregistered securities by an unregistered agent, it appeared the agent procured a person to advance to a corporation the sum of $100, for which he was to receive and did receive the company’s promissory note for $100, and as a bonus, one hundred shares of the company’s capital stock. Held, there was a sale of the shares of stock, within the meaning of R. S. 1931 Supp. 17-1223 (2).” (Syl. H 1.)
The fact that the salesman put it in the contract ortold the purchaser that the shares or interest in the company were only a bonus or that he was not selling the stock, did not make the transaction any the less a sale of such shares of stock or shares of interest. Regardless of the bonus feature, both the note and the shares of stock are ordinarily such securities as are forbidden by the statute to be sold unless duly and regularly registered. In the opinion in the Dobson case, supra, it was said:
“It is plain the note was a security disposed of to Keith for value, precisely as if it had been a bond. The shares of stock were also securities which were in fact included in the transaction of disposition for value to Keith of the other security. While it was definitely understood that if Keith advanced $100 to the company he would get both the note and the shares of stock, he was told, in the course of the negotiations, the company was not selling stock.” (p. 446.)
The definitions in said subdivision (2), from which the bonus feature was quoted above, plainly and definitely include shares of interest' in and to a holding company to be formed, as alleged in the information in the case at bar, when such definition includes, as it does, “an attempt, to sell in any manner whatsoever, an option of sale, a subscription, a preorganization subscription or certificate.” So ordinarily both the note and the shares, even if given as a bonus, are within the provisions of the statute as being prohibited to be sold unless registered.
In the case at bar we may therefore eliminate the note altogether and the length of time for which it was given, and consider the question of the offense committed, if any, by the sale of the shares of interest in and to a holding company to be formed, and regardless of whether or not they were given as a bonus, we conclude they come within the provisions of the statute making it a public offense to sell them without their being registered with the state banking department of Kansas and a permit being issued for their sale.
It is urged that the information is defective in that it does not allege that the shares of interest involved were not exempted by section 2 of the act, but section 24 of the act, or R. S. 1933 Supp. 17-1246, directs that such shall not be necessary, but places the burden of proving such exemptions upon the defendant.
The appellant complains that the state introduced pictures of the place of business in Chicago of the Crossland steam unit and testimony as to the operation and value of the unit and a comparison of its prospects and quantity of business with that of the Henry Ford plant, which is claimed to have been incompetent, irrelevant and immaterial, and highly prejudicial to the defendant. And although it is said much of such evidence was introduced without a formal objection thereto, yet the prejudice to the rights of the defendant was so great on account of it that even without objection at the time and at this late date, the defendant should be granted a new trial. Appellant cites cases in this and other courts where such has been sanctioned. Strictly speaking, such evidence may not have been necessary to prove the state’s case, which was simply that the defendant sold unregistered securities. But it is difficult to entirely separate boosting or sales talk from a transaction of this kind. Even the defining statute, above cited, includes “.a solicitation of a subscription or sale.” We do not feel that the situation is such as to justify this court on review to rule as urged by the defendant.
The error assigned as to the refusal of the trial court to give the instruction requested as to the note being exempt was not error, as the violation of the statute is in this case based upon the sale of shares of interest and not on the note as a security.
We find no error in the overruling of the motion for a new trial, and we find there was sufficient evidence to warrant a conviction on each of the four counts of the information.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
In this case plaintiff has appealed from an order of the trial court sustaining defendants’ demurrer to her petition.
Shortly stated, and so far as is pertinent here, it is alleged in the petition that plaintiff owned 1,477 acres of land in Wilson county, which it .described; .that in April, 1934, she leased this land to defendants for a term of seven months, from April 1 to November 1, 1934, for a cash rental of $500. A copy of the lease was attached to the petition. That the lease contained the clause, “It is mutually agreed that said second party (the defendants) is not to pasture more than one head of stock for five acres on the above premises during the continuance of this lease”; that this clause authorized defendants to pasture 296 head of stock on the premises and limited them to that number; that in fact they did pasture 540 head of stock on the premises, and that the reasonable value of the pasturage of the excess number of stock was $875, for which sum she prayed judgment.
In another cause of action plaintiff adopted pertinent portions of the former cause of action and alleged that the lands were leased to defendants to be used exclusively for pasture purposes; that defendants had no right to use the premises for the purpose of cutting the grass growing or grown thereon for hay; that they did cut the grass and put up seventy-five tons of hay, which they removed from the premises and used for their own purposes; that the hay was worth $10 per ton over the cost of cutting it and putting it up, for which plaintiff asked judgment for $750.
Defendants’ separate demurrer to each of the causes of action was upon the ground the facts stated therein were not sufficient to constitute a cause of action.
In support of the judgment of the trial court appellees cite 36 C. J. 84 to the effect that where the lease “is silent on the subject” the lessee, by implication, has the right to put the premises to such use as he pleases not materially different from that to which they usually are employed and to which the premises are adapted, and the authorities cited in support of the text. The difficulty with the citation is that this lease is not “silent on the subject” with respect to the number of cattle defendants had the right to put on the premises. They specifically agreed in the lease “not to pasture more than, one head of stock for five-acres.” They had not leased the pasture for any number of stock in excess of 296 head, which would be one head to five acres. With respect to any number of stock pastured on the premises in excess of that, they pastured there without a lease. We know of no reason why they should not pay the reasonable value of such pasturage. (R. S. 67-520; Pessemier v. Hupe, 121 Kan. 511, 513, 247 Pac. 435.)
It is within the rights and power of the parties to make valid restrictions for the use of a property in a lease. Indeed, they sometimes are implied from the nature of the property. (36 C. J. 88.) Such restrictions should be so construed as to carry into effect the intention of the parties. (36 C. J. 90 et seq.) To the same effect see 16 R. C. L. 736. This doctrine has been recognized as the law of this state, and in Godfrey v. Black, 39 Kan. 193, 17 Pac. 849, the lessee was enjoined from using the property for some purpose other than that for which it was leased. (See, also, Grantham v. Hanenkratt Lead & Zinc Co., 131 Kan. 535, 545, 292 Pac. 757.)
Appellees argue that plaintiff would not be entitled to recover unless she could show injury to the sod or freehold. On this point they cite and rely largely on Sallee v. Gilliland, 104 Kan. 722, 180 Pac. 763, the facts of which they say are identical with the instant case. The cases are readily distinguished. There, by the covenant in the lease, the lessee agreed “not to permit the pasture on said land to be at any time overstocked so as to injure the sod; . . . four acres per head for livestock to be the standard.” After the termination of the lease the lessor sued in two causes of action. In the first he alleged defendant had pastured more than one head to four acres and sought to recover the amount the lessee had collected for pasturing the excess number. In the second cause of action he alleged the sod had been injured by overpasturing and sought damages therefor. The trial court sustained defendant’s demurrer to the first cause of action, and plaintiff appealed. This court held “the standard of four acres per head was the rule for estimating overstocking to an extent which would injure the sod,” and limited his damages to injury to the sod, which, the opinion stated, if he were damaged in that respect he could recover under his second cause of action. There, there was no specific prohibition against putting more than a certain number of head of stock in the pasture, as there is here. There the only thing the lessee covenanted against was injury to the sod, and plaintiff was permitted to try his cause of action for that. In this action the lessor, by the limitations placed in the lease, retained whatever benefits there would be to her by not pasturing more stock than one head per five acres. That might be grass to be used for winter pasture, or grass to be cut for hay. It certainly was not limited solely to injury to the sod.
Upon the last cause of action there is an absence of a specific statement in the lease that it was to be used for pasturing of livestock only. Although it is quite possible the character of the property, together with the references made in the lease to pasturing stock, will justify or require an implied restriction to that use, we need not pass upon that question at this time. Plaintiff in her petition specifically alleged that the lands were leased to be used exclusively for pasture purposes. When a written lease is silent on the use to be made of leased premises, and the parties have had a parol agreement with respect thereto, such agreement may be shown by parol evidence. (Chamberlain v. Brown, 141 Ia. 540, 120 N. W. 334.) The general rule is that growing grass is a part of the realty, and that an agreement to sever it must be in writing. (Smith v. Leighton, 38 Kan. 544, 17 Pac. 52; Ross v. Cook, 71 Kan. 117, 80 Pac. 38.) Certainly there is nothing in the lease authorizing defendants to use the premises to the full extent for pasture purposes and also to cut the grass on it.
From what is said it necessarily follows the judgment of the trial court must be reversed for further proceedings. It is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by the plaintiff, Ulman Paris, against the defendant, A. L. Crittenden, a physician, for malpractice.
Plaintiff alleged in his petition that defendant is a practicing physician and surgeon residing in the city of Wichita; that on the 17th day of January, 1933, the plaintiff was sixty years of age, in. good health and sound physical condition, and was employed as a cigar salesman, making from $80 to $100 per month. On said date he slipped upon some ice on the outside stairs of the apartment house where he was living, causing him to fall and fracture the humerus bone of the right arm about five or six inches below the shoulder joint. He was taken to the Wesley Hospital in Wichita, and the defendant was called to treat the fracture. Defendant treated the fracture at the hospital for twenty-one days, when the plaintiff was discharged from the hospital and went to the home where he was then living, in the city of Wichita, and defendant continued to treat the injured arm for a period of four months thereafter.
It is alleged that defendant was guilty of negligence in treating the arm in the following particulars: He directed and permitted this plaintiff to be placed in a bed in the hospital with the casters at the foot of the bed removed so that the plaintiff was in a slanting position, with his head and shoulders much higher than the rest of his body. On account of such position in the bed, he constantly slipped down, and in moving him back up in the bed the fibers at the union of the bones would break so that the pieces of the bones did not knit, and such treatment caused a callus to form at the broken ends of the bone and prevented the proper knitting of the bone.
It is further alleged that defendant negligently failed to place the arm and shoulder and the upper part of the body in a cast after bringing the bones together, in order to keep it in an immovable position, and give the broken pieces of the bone a chance to knit and join. Defendant also negligently would flex the upper part of the arm and permit it to be flexed when the same should have, by proper treatment, been kept in a rigid position, and by so doing the fibers did not knit and could not knit permanently. On account of such negligence the points of the bones failed to knit, and plaintiff as a result has lost the use of his' right arm; that had it not been for the negligence of the defendant in treating the arm, and if the arm had been treated in the proper manner, as alleged, the bones in said arm should and would have united in about five weeks, but no proper splints were placed upon the arm, no cast was placed upon the outside of the arm, shoulder and upper part of the body so that the broken bone could have been kept rigid and permitted to unite. The defendant also negligently did not examine the arm properly and did not use X rays, as he should have done at proper times to ascertain whether the bone was knitting as a result of his treatment.
On account of the negligence of defendant in treating the fracture the plaintiff suffered great pain and anguish, for which he claims damages in the sum of $1,500. Plaintiff has been unable to work for a period of twenty months, and has therefore sustained damages for loss of time of one year and eight months, to his damage in the sum of $1,800. He was compelled to pay or obligate himself to pay the sum of about $200 for hospital fees and expenses. He has also been permanently injured in that he has lost the use of his right arm for almost all purposes, and such injury will be permanent, to his further damage in the sum of $6,000. Plaintiff prays for judgment against defendant for tire sum of $9,500 and costs.
The defendant, Crittenden, answered that he was not guilty of any negligence in the treatment of the plaintiff, and especially denied that any injury which the plaintiff received, or any damages arising therefrom, are in any manner the result of any act of omission or commission on the part of defendant. Defendant alleged that on the 3d day of January, 1934, the plaintiff, in consideration of the payment to him of $350, executed a release to Charles and Mollie Kleinheins (owners of the apartment), releasing them from any and all actions, causes of action, damages or demands of whatsoever nature in any manner arising, or to grow out of any and all accidents or matters, and especially the said accident which occurred to the plaintiff on or about the 17th day of January, 1933.
To this the plaintiff replied that on the 17th day of August, 1933, the plaintiff filed an action for damages against Charles and Mollie Kleinheins, for injuries received when he fell down the steps of an apartment building owned by them; that they denied any liability for said injuries so received, and have ever since denied it; that the $350 paid to plaintiff in that case was done in compromise of the action, not because of any liability on behalf of the Kleinheins. Plaintiff alleged that there was no negligence in behalf of Charles and Mollie Kleinheins, and no legal liability attached to them for the injuries so received and that he dismissed the case with prejudice to any future action. In that case the defendants alleged that the nature of the steps down which plaintiff fell was such that such injuries were the result of his own acts or carelessness and negligence, and the direct cause of the injuries he sustained; that the steps were properly constructed, and were in the same condition as to construction at the time of the accident as they were when the plaintiff rented the property, with full knowledge of the condition of the steps; that plaintiff had exclusive control of the occupancy of the apartment and of the steps in question and that the plaintiff was guilty of contributory negligence.
The court on the motion for judgment held that judgment against the defendant, Crittenden, should not be allowed and dismissed the case with prejudice at the costs of the plaintiff.
On the facts alleged, the court held the negligence of the physician was really the negligence of the Kleinheins, and that they had been released when the consideration of $350 was paid and accepted by Paris. The case of Keown v. Young, 129 Kan. 563, 283 Pac. 511, is regarded by the court as presenting substantially the facts and principles involved here. As a general rule the plaintiff might have recovered from the original wrongdoer for the negligence of the physician in the treatment of the injury, providing the physician had been selected with care. The law regards the negligence of the person who causes the original injury as the proximate cause of damages flowing from the negligence of the physician and holds him liable therefor. Being liable for the damage, Charles and Mollie Kleinheins were at liberty to compromise and settle, and plaintiff did settle with them for every demand growing out of the accident of January 17, 1933, and accepted the consideration of $350 agreed upon. If plaintiff had asked for and had obtained a settlement of the damages, the action against the doctor for malpractice would not lie. The damages sought certainly grew out of the accident of January 17, 1933, when plaintiff fell on the back stairway of the place where he was living. The case of Keown v. Young and the authorities so fully examined, and results-reached, settles the questions involved and has determined where the weight of authority is. In that case it was recognized that there was a division of judicial opinion on the question, and this state has lined up on the side making the original wrongdoer liable as being the proximate cause and giving him power to release the physician who may have been negligent in treating the case. The court decided that—
“When one sustains personal injuries because of the negligence of another and uses due care in selecting a physician to treat his injuries and in following the advice and instructions of the physician throughout the treatment, and a poor result is obtained because of the negligence of the physician, the law regards the negligence of the one who caused the original injury as the proximate cause of the damages flowing from the negligence of the physician and holds him liable therefor.
“When one sustains personal injuries by the negligence of another and settles his claim for damages against such party, and executes to him a release and discharge 'of all suits, actions, causes of action and claims for injuries and damages, which I have or might have arising out of the injuries,’ such release covers and includes a claim for injuries resulting from the negligence of a physician called by the injured party to treat his injuries when there is no claim of a lack of due care in selecting a physician or in following his advice with respect to the treatment.” (Syl. HIT 2, 3.)
Following this authority the trial court ruled that the release was valid and binding, that the physician was acquitted of his negligence and is not liable for such negligence in the treatment of the case.
The judgment is affirmed. | [
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