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The opinion of the court was delivered by
Brewer, J.:
In February 1868, the city of Leavenworth made a contract with J. A. Bullen to build a bridge on Main street, across Three-mile creek, for $10,800, payable in five-year bonds. The excavation and mason work therein was, with the consent of the city, assigned to the plaintiff. The bridge was built, and accepted by the city. Changes were made by the city engineer in the plans and specifications, which largely increased the amount of the masonry and excavation. On a final report of the city engineer the city paid plaintiff $12,900, in five-year bonds, and sixteen dollars in cash. Plaintiff claiming that he was entitled to some six or seven thousand dollars more, brought this action. In his petition he did not count on the contract, but alleged in the form of one of the old common counts a general indebtedness for work and labor. The city answered setting up the contract, and assignment, and alleging that all work was done under the contract, and fully paid for. An unverified reply was filed.
1. Petition; common counts. Contract, controls price. Extra work. The district court, upon the trial, ruled substantially, that the contract was outside the case; that the plaintiff by the form of his petition had abandoned the contract, and was suing for the value of the work done, and generaiiy limited the testimony to the quantity of work, its acceptance, and value. The instructions followed these rulings, and discarded the contract. In this was error. Whatever criticism may be placed upon such pleadings, as involving a departure from the true spirit of code pleading, they are almost uniformly sustained by the code authorities. It is said by Pomeroy in his work on Remedies and Remedial Rights, section 543: “Not only have the courts in this manner sanctioned the use of the common counts as appropriate modes of setting forth the plaintiff’s cause of action; they have also held that another rule of the old practice is still retained by the codes. The rule thus declared to be in force is the following: When the plaintiff has entered into an express contract with the defendant, and has fully performed on his part, so that nothing remains unexecuted but the defendant’s obligation to pay, he may if he please, sue upon the defendant’s implied promise to make such payment, rather than upon the express undertaking of the original contract; and to that end he may resort to a complaint or petition identical with the ancient common counts.” In support of this he cites in a note, a large number of authorities. In the case of Columbia Bank v. Patterson’s Adm’rs, 7 Cranch, 299, the supreme court of the U. Si, by Story, J., says: “We take it to be incontrovertibly settled, that indebitatus assumpsit will lie to recover the stipulated price due on a special contract, not under seal, where the contract has been completely executed; and that it is not in such case necessary to declare upon the special agreement. In the case before the court, we have no doubt that indebitatus■ assumpsit was a proper form of action to recover, as well for the work done, under the contract of 180f, as for the extra wor]Cm it may} therefore, safely be admitted that where there is a special agreement for building a house, and some alterations or additions are made, the special agreement shall, notwithstanding, be considered as substituting so far as it can be traced.” And in a later case, Dermott v. Jones, 2 Wall. 1, the same court, by Swayne, J., uses this language: “While a special contract remains executory, the plaintiff must sue upon it. When it has been fully executed according to its terms, and nothing remains to be done but the páyment of the price, he,may sue on the contract, or indebitatus assumpsit, and rely upon the common counts. In either case the contract will determine the rights of the parties.” And such seems to be the almost unbroken current of the authorities. So that, though the petition was in form simply a claim for the value of work done, the plaintiff was at liberty to introduce the contract, and rely upon its terms as controlling evidence of value. Not only is this true as to the work originally specified in the contract, but also as to all extra work, done by mutual consent, so far as the terms of the contract can be traced. The rule is thus stated by Sedgwick in his work on the Measure of Damages, p. 222: “So also, where work is done under a special agreement at estimated prices, and there is a deviation from the original plan by the consent of the parties, the contract is made the rule of payment as far as it can be traced, and for the extra labor the party is entitled to his quantum meruit.”
This error compels a reversal of the judgment, and a new trial. We do not deem it necessary to consider the other questions discussed by counsel, for this error involves such a radical change in the whole scope of the testimony, and the character of the issues, that perhaps none of those questions may be of any practical importance.
The judgment will be reversed, and the case remanded for a new trial.
Horton, C. J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Defendant is a member of the present House of Representatives of this state, having been elected in the fall of 1876. This action was brought under chapter 122 of the laws of 1875, to remove him from office; and the single question presented is, whether the action will lie against him under that statute. It provides for the removal from office of “any state, district, city, county, or township officer of this state, for whose removal from office by impeachment there is no provision.” The constitution, art. 2, section 28, reads: “The governor, and all other officers under the constitution, shall be subject to impeachment.” And chapter 49 of the general statutes prescribes the general mode of procedure. On the one hand, it is claimed that in the comprehensive words, “all other officers under the constitution,” ,are included members of the legislature, and that they too are subject to impeachment, and therefore not included within the scope of said chapter 122. And on the other, that by the decision in the Blount case, it was long ago held by the United States senate, that members of that senate were not subject to impeachment, and that by the common understanding and consent of all, this decision has been considered as applicable to members of all state legislatures, and that therefore the general words of our constitution must be construed with this implied exception. So far as the federal legislature is concerned, the decision in the Blount case, though rendered by a closely-divided senate, (14 to 11,) has ever since been accepted as a correct exposition of the law, and that question is doubtless forever at rest. Yet that there is a marked distinction between the language of the federal and the state constitutions, is clearly shown by the able opinion of his honor, Judge Talcott, who decided this case in the district court, from which we quote as follows:
“By the federal constitution, those subject to impeachment are, ‘ the president, vice-president, and all civil officers of the United States’ By our state constitution, those subject to impeachment, are, ‘the governor, and all other officers under this constitution.’ Perhaps an understanding of the terms ‘civil officers of the United States,’ as used in the federal, and ‘all other officers under this constitution,’ as used in our state constitution, will help in discovering the difference, if any, between the two. Judge Story, in the first volume of his work on the constitution, at section 793, after stating that the reasoning by which the construction given to the federal constitution does not appear, says, ‘ But it was probably held that civil officers of the United States meant such as derived their appointment from and under the national government, and not those persons who, though members of the government, derived their appointment from the states, or the people of the states.’ With this definition, it will be seen at once, that a United States senator is not a ‘civil officer of the United States,’ within the meaning of that provision of the constitution, because he derives his ‘appointment from the states, or the people of the states,’ and not ‘from and under the national government.’ In giving the construction it did, the question was, ‘ whether a senator was a civil officer of the United States,’ within the purview of the constitution; and it was decided by the senate that he was not. Then, as a United States senator is not a ‘ civil officer of the United States,’ and is not the president, or vice-president, he cannot be impeached, for by the terms of the federal constitution they are the only persons who can be impeached.
“Now, as to our state constitution. It does not provide, that the governor, ‘and all civil officers of the’ state; or, that the governor, and all ‘such as derived their appointment from and under the’ state government; or, the governor and all civil officers under this constitution, shall be subject to impeachment; but it does provide that ‘the governor, and all other officers under this constitution,’ shall be subject to impeachment. How the term, ‘all other officers under this constitution,’ can be explained is more than I can see. It is its own explanation — its own definition. As to who is an officer of the United States, or a United States officer — or, as to who is an officer of the state, or a state officer — is a question about which there may be some doubt, and about which our own supreme court has been called upon to adjudicate; but as to who are officers under the constitution, there can be no doubt, especially as to those specifically enumerated therein. All we have to do for information is to turn to' that instrument. But, it being conceded that a member of the legislature is an officer under the constitution, it is not necessary, for the purposes, of this case, to cite any of its sections for such proof.”
But passing this question, and conceding the claim of counsel for the relator, that a member of the legislature of this state is not subject to impeachment, and still we think the judgment of the district court must be sustained;
The constitution declares, article 2, section 8, that “Each house shall be judge of the elections, returns, and qualifications of its own members.” This is a grant of power, and constitutes each house the ultimate tribunal as to the qualifications of its own members. The two houses acting conjointly do not decide. Each house acts for itself, and by itself; and from its decision there is no appeal, not even to the two houses. And this power is not exhausted when once it has been exercised, and a member admitted to his seat. It is a continuous power, and runs through the entire term. At any time, and at all times during the term of office, each house is empowered to pass upon the present qualifications of- its- own members. By section 5 of the same article, acceptance of a federal office vacates a member’s seat: He ceases to be qualified, and of this the house is the judge. If it ousts a member on the claim that he has accepted a federal office, no court or other tribunal can reinstate him. If it refuses to oust a member, his seat is beyond judicial challenge. This grant of power is, in its very nature, (and so as-to any other disqualification,) exclusive; and it is necessary to preserve the entire independence of the two houses. Being a power exclusively vested in it, it cannot be granted away or transferred to any other tribunal or officer.*’ It may appoint a committee to examine and report, but the decision must be by the house itself. It, and it alone, can remove. Perhaps also, it might delegate to a judge or other officer outside its own body power to examine and report upon the qualifications of one of its members. But neither it, nor the two houses together, can abridge the power vested in each house separately of a final decision as to the qualifications of one of its members, or transfer that power to any other tribunal or officer. And an act which purported to grant to the district court power to remove from office, must be construed as not embracing members of the legislature; or if its language specifically names, or necessarily includes them, then as to them the act is unconstitutional.
The judgment will be affirmed, at the costs of the relator.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Action to quiet title. Decree for plaintiff, and defendant alleges error. The testimony was not preserved, and the case is before us on the pleadings, findings, and conclusions. The land was patented under the treaty of 28th July 1862 with the Ottawa Indians, to one Masko. On 29th July 1867, Masko conveyed by warranty deed; and the case turns upon the validity of that deed. This treaty has been before us for consideration in several cases; Clark v. Libbey, 14 Kas. 435; Clark v. Akers, 16 Kas. 166; Clark v. Libbey, 17 Kas. 634; Campbell v. Paramore, 17 Kas. 639; and many of the questions litigated in the district court have been disposed of by those cases. As this case now stands before us, it must be decided by the answer to be given to one question: Is there anything in the findings to show that any portion of this land was inalienable' during the lifetime of the patentee? The first finding reads:
1st.-By the Ottawa Indian treaty of 24th June 1862, provision was made that upon its ratification a census of all Ottawas entitled to lands under it should be taken. After the ratification of the treaty July 16th, 19th, 1862, a census was taken, and an allotment of land made. On the census and allotment-roll prepared and reported to the Secretary of the Interior the following description appears: “No. 19,, name, Masko; boy; age, 15; description of land, the west half of the northwest quarter of section 32, township 16,, range 19.” And afterward a patent was issued by the United States to Masko for the lands borne opposite his name on the census and allotment-roll.
This land was the tract conveyed, and in dispute. There, is no other finding descriptive of the title, or interest of Masko; nothing to show what limitations were in the patenty nothing further indicative of the class of allottees to whichMasko belonged, or the amount of land patented to him under the treaty. The treaty provided that at the expiration of five years from its ratification the tribal relations should be dissolved, and the several Indians should be deemed and declared to be citizens of the United States, to all intents and purposes, and with all rights, privileges and immunities,, and in all respects subject to the laws of the United States and of the state. (12 U. S. Stat. at Large, p. 1237, sec. 1.) Art.7 of the treaty is as follows:
“Article YII. * * * And all the above-mentioned selections of lands shall be made by the agent of the tribe,, under the direction of the Secretary of the Interior. And plats and records of all the selections and locations shall be made, and upon their completion and approval proper patents-by the United States shall be issued to each individual member of the tribe and person entitled for the lands selected and-allotted to them, in which it shall be stipulated that no Indian, except as herein provided, to whom the same may be-issued, shall alienate or incumber the land allotted to him or her in any manner, until they shall, by the terms of this-treaty, become a citizen of the United States; and any con-, veyance or incumbrance of said lands, done or suffered, except as aforesaid, by any Ottawa Indian, of the lands allotted to-him or her, made before they shall become a citizen, shall be null and void. And forty acres, including the houses and improvements of the allottee, shall be inalienable during the natural lifetime of the party receiving the title; provided,, that such of said Indians as are not under legal disabilities by the local laws may sell to each other such portions of their lands as are subject to sale, with the consent of the Secretary of the Interior, at any time.” •
The only permanent limitation on any patentee’s power of' alienation was-, as to “forty acres, including the houses and improvements of the allottee.” As to all other lands, as soon as he became a citizen, he had as full power of alienation as any citizen. The five years had passed, and Masko was a citizen, and subject to the laws of this state at the time of the conveyance. He could convey all except the “forty acres.” The treaty of 1868 was not yet ratified, and of course its subsequent ratification could not avoid prior conveyances. The findings dispose of the question of minority.
Now if it affirmatively appeared that all the land patented to Masko, was this eighty-acre tract, some interesting and difficult questions might arise. Must the patent name the “forty-acre” tract which is inalienable f If not, how is it to be selected ? Must the patentee make the selection before conveying any? If the patentee has no houses, nor improvements, on any of the land, and no restriction is expressed in thé patent, is any of the land inalienable? If a patentee, there being no restriction in the patent, and no houses or improvements on the land, without making any selection conveys the entire tract in one conveyance, is the conveyance void as to all the land, or only as to forty acres ? and if void as to forty acres, whieh forty acres? But we think the findings do not show that this eighty-acre tract was all that was patented to Masko under the treaty. It is nowhere expressly so stated, as it was in the case of Campbell v. Paramare, 17 Kas. 639. The treaty provides, art. 3, that five sections of land be apportioned among the chiefs, councilmen, and headmen, as the members of the tribe shall in full council determine; that in addition, said last-named persons, and each and every head of a family, should receive 160 acres; and that all other members of the tribe should receive eighty acres each. Now it is probably the fact, that Masko only received the last-named amount, to-wit, eighty acres, the tract in controversy. The description and age, “boy, age 15,” would seem to imply this. If he were the head of a family, it would seem as though the description would indicate this; and as to the chiefs, etc., it is said that the five sections are set apart to them in consideration of many -years of service' without pay, and a boy of fifteen years cannot have rendered very many years of service. But these are mere probabilities. And before a warranty deed, made by one having the powers of a citizen in respect to conveyance, is held void, it should affirmatively appear that there was some defect in the conveyance, or some restriction as to the title conveyed. The presumptions are against such restriction.
Again, the presumption is that the court ruled correctly;' and in what the court denominates “findings of law,” as distinguished from its conclusions, it finds, “that the restrictions against alienation were removed at the end of five years from the ratification of the treaty, July 16th 1862, except as to disabilities existing under local law.” Now it .will be presumed that the evidence showed that this land did not include the forty-acre inalienable tract, rather than that the court found against the validity of any stipulation in the treaty.
Still again: While the treaty provided for a census, it did not prescribe what such .census should contain, but left the matter for the direction of the Secretary of the Interior. What he prescribed, the case does not show. Whether his directions were such that the mere description and age indicated the class to which the allottee belonged, we are not advised, and may not conjecture. While it is not probable that a boy fifteen years of age is the head of a family, still it is not impossible. Marriage among the Indians may be celebrated at an early age, and this boy may in fact have been an illustration of young American precocity. Again, we are not advised, and we cannot take judicial notice, of the laws and customs of Indian tribes. The places of chief, councilmen, and headmen may be hereditary, and this boy may in fact have been a chief for years, and selected by the council to share in the five sections. These it is true are mere speculations; but they serve to show that the record is not sufficiently full and specific for us to hold that error affirmatively appears in the ruling of the district court. In the absence of such showing it must be presumed that it ruled correctly, and the judgment must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Wertz, J.:
Plaintiff (appellee), Lucille Bodle, brought this action under the declaratory judgment act, G. S. 1949, 60-3127 et seq., for the purpose of obtaining an interpretation of paragraph four of her deceased husband’s will.
The petition alleged that Walter E. Bodle died, leaving a last will and testament which was admitted to probate. A copy of the will was attached to the petition. Under the terms of the will a trust was created by the testator for the period of the lifetime of his wife, Lucille Bodle, plaintiff, or until her remarriage, and H. C. Bodley was named trustee of the trust. Bodley died and under the terms of the will defendant (appellant), Joe F. Balch, was appointed sue cessor trustee of the trust. The will directed that all of Walter Bo die’s property, after the payment of debts, the costs of administration and taxes, be assigned in trust to the trustee named therein. Bodle’s estate was closed in February, 1954, at which time the assets of the estate were assigned to the trustee pursuant to the terms of the will. At the time of the death of Bodle, his wife, Lucille, was his sole and only heir at law and was named as beneficiary under the trust.
Paragraph three of the will provided that the trustee pay Lucille Bodle so much of the income, and, if necessary, so much of the corpus of the trust, as should be needed for her comfort, maintenance, welfare and support. Such payments were to continue so long as she should five or until she should remarry.
Paragraph four provided:
“Upon the death or remarriage of my wife, Ltjcille Bodle, all funds, and assets then remaining in said trust shall be used for such charities, benevolences, gifts or loans as in the sound judgment and discretion of said trustee shall seem best. My principal interest hereunder is that the individual, group, agency or cause shall, in the judgment of said trustee, be truly worthy and deserving. I especially favor the use of such funds for the care and assistance of crippled or needy children in the vicinity of Chanute, Kansas, but do not seek to limit the use to these causes.”
Paragraph five provided that the trust was to be fully executed within fifteen years after the death or remarriage of Lucille. Paragraph six described in detail the extent of the powers and duties of the trustee during the operation of the trust. The remaining paragraphs of the will are immaterial to the issue involved.
The petition then alleged that a controversy had arisen between plaintiff and defendant trustee over the construction of paragraph four of the will, plaintiff contending that paragraph four did not create, establish or provide for a valid trust for the reason that the same was not a charitable trust and was void for indefiniteness and uncertainty of beneficiaries; that upon the remarriage or death of plaintiff all the property held in trust by the trustee should be conveyed to and title to the same vested in plaintiff or her heirs, devisees, legatees and personal representatives, as the case might be, but that defendant Balch, trustee, contended and maintained that the fourth paragraph established and provided for a valid trust; that by reason of the facts stated an actual controversy existed between plaintiff and defendant and it was necessary that there be a determination of the same in order that the ownership of the property then in the hands of the trustee, after plaintiff’s death or remarriage, be determined and in order that the duties and obligations of the trustee be clarified.
Defendant demurred to the petition on the ground that the court had no jurisdiction of the subject of the action and the petition failed to state facts sufficient to constitute a cause of action.
Our statute pertaining to declaratory judgments specifically vests in the district courts jurisdiction to determine controversies involving interpretation of deeds, wills and other instruments of writing. Controversies arising over the interpretation of wills have always been considered as justiciable in the district courts of Kansas. (Sharpe v. Sharpe, 164 Kan. 484, 190 P. 2d 344; Simmons v. Reynolds, 179 Kan. 785, 298 P. 2d 345.)
Defendant contends that the court was without jurisdiction for the reason that the action was an attempt to set aside the will of Walter E. Bodle under the pretense of a declaratory judgment action. We cannot agree with defendant’s contention. Plaintiff asked only for the interpretation of paragraph four of the will as it related to one of the trust provisions. Even assuming that plaintiff asked for more relief than that to which she, in the final analysis, might be entitled, the petition was not demurrable. Under such circumstances, the authorities cited by defendant have no application, inasmuch as an actual controversy was alleged.
We will again state our often repeated rule that when an action is filed for declaratory judgment and the petition sets forth facts showing an actual controversy concerning some matter covered by the statute, it is the duty of the district court to overrule the demurrer to the petition and proceed with the cause in accordance with the provisions of the act (G. S. 1949, 60-3127). It is further the rule that under that act it is not intended in advance of answer and hearing to prejudge matters which might become material in determining propriety or justice of relief sought. Again we reiterate that a demurrer is not a proper pleading in a declaratory judgment action, unless the petition fails to set forth facts which clearly make it appear there is a controversy between the parties and just what the controversy is. (Simmons v. Reynolds, supra; Stalnaker v. McCorgary, 170 Kan. 9, 223 P. 2d 738; Hyde Park Dairies v. City of Newton, 167 Kan. 730, 208 P. 2d 221; School District v. Sheridan Community High School, 130 Kan. 421, 286 Pac. 230.)
This appeal is limited solely to the petition herein. Issues have not been joined by the parties and the trial court has rendered no declaratory judgment in the case, notwithstanding defendant seeks to enlarge tíre scope of our review by attempting to argue and to have us decide the merits of the cause and prejudge matters which might become material in determining the propriety or justice of the relief sought. Thesis are matters for the trial court to determine after issues are joined and facts are either stipulated or presented to it for final determination, and not for appellate review upon a demurrer to the petition.
Plaintiff cross-appeals from an order of the trial court striking a stipulation of facts entered into' between counsel for the respective parties prior to the filing of this action. It appears that after the stipulation was entered into and before the action was filed by the plaintiff, defendant advised plaintiff’s counsel he wished to withdraw his stipulation and did not want it filed with the petition. However, plaintiff filed the same. Whereupon, defendant moved to strike the stipulation from the files on the ground that it was entered into inadvertently, inadvisedly and improvidently and it would operate inequitably and to the prejudice of defendant. The motion to strike was presented to the trial court and was sustained.
A stipulation is an agreement between counsel with respect to business before a court and is not one of the usual pleadings but is a proceeding in the cause and, as such, is under the supervision of the court. (83 C. J. S. Stipulations § 1.) A stipulation has also been defined as an agreement, admission or concession made in judicial proceedings by the parties thereto or their attorneys. (50 Am. Jur., Stipulations, § 2, p. 605.) In White v. Kincade, 95 Kan. 466, 148 Pac. 607, we held that courts are warranted in relieving parties from stipulations which have been improvidently or mistakenly made and that considerable discretion is vested in the trial court as to whether the relief shall be granted, depending largely, of course, on the facts and circumstances of the case. In the instant case, the court sustained defendant’s motion to strike the stipulation and we cannot say it abused its discretion in so doing.
Plaintiff also cross-appeals from the order of the trial court overruling her motion for judgment on the petition and stipulated facts. Inasmuch as the trial court struck the stipulation from the files, plaintiff’s motion for judgment became moot.
In view of what has been said, the judgment of the trial court is affirmed both as to the appeal and the cross appeal.
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The opinion of the court was delivered by
Pabkeb, C. J.:
This is an appeal from an order of the district court striking from the files an amended petition for the allowance of a demand against the estate of a deceased testator.
Jacob Manweiler died June 23, 1956, leaving a last will and testament which was admitted to probate on October 23, 1956. August Manweiler, one of several children by, the testator’s first marriage, was named and appointed executor under the terms of the will. Notice of such appointment and notice to creditors was first published on November 8, 1956.
On October 23, 1956, Mrs. Jacob (Hazel) Manweiler, who married Jacob on April 3, 1946, and lived with him as his wife until the date of his death, filed her petition in the probate court for the allowance of her demand against the estate of her deceased husband. This claim was based on an oral contract, alleged to have been entered into between Hazel and Jacob on the day they were married and thereafter immediately reduced to writing.
Subsequently, and pursuant to what is now G. S. 1957 Supp., 59-2402a, Hazel filed a motion in probate court requesting that her petition be transferred to the district court. After notice and a hearing on this motion, at which Hazel, the executor and all other children of the testator’s first marriage were personally present or represented by counsel, the probate court granted such motion on February 26, 1957, by an order stating that the petition for the allowance of the demand against the estate and shares thereof was transferred to the district court for hearing and determination.
The proceedings in district court are important and should be detailed.
On December 13,1957, the petition came on for hearing in district court. Thereupon the executor orally demurred to that pleading on the ground it failed to state facts sufficient to constitute a claim or cause of action against the estate of the decedent. This demurrer was sustained. Later, and during the same term of court, Hazel moved to amend the ruling sustaining the demurrer. Action on this motion is reflected in a journal entry reciting that the prior decree was amended by adding thereto an order of the court that the petitioner was granted leave to file an amended petition for allowance of demand within fourteen days.
Thereafter, on February 21, 1958, and within the time required, Hazel filed an amended petition wherein, after again alleging the existence of the contract and failure of the decedent to comply with its terms, she separated the intermingled relief sought by her in her original petition into two parts, one identified as Part II, dealing with direct demands against the estate under contract, and the other, identified as Part III, with recovery of assets by the estate, alleged to have been obtained by the children of the first marriage from their father, through fraudulent misrepresentations and without consideration, in violation of the terms of such contract.
On June 5, 1958, Hazel filed a motion asking that Part III of her amended petition relating to the recovery of assets by the estate be remanded to the probate court for hearing and disposition, for the reason that portion of the petition should not have been transferred to the district court under the provisions of 59-2402a, supra.
On June 18,1958, the executor demurred to the amended petition for allowance of demand and other relief filed by Hazel, based on grounds (1) that it failed to state facts sufficient to constitute a cause of action; (2) that the district court had no jurisdiction of the subject of the action; and (3) that several causes of action were improperly joined.
On August 30, 1958, after hearing arguments by the parties, the court overruled the demurrer to the amended petition. Thereafter, and on September 3, 1958, after a hearing on the motion to remand, the trial court found that such amended petition, insofar as, and only insofar as it involved Part III thereof, being “Petition for Recovery of Assets,” should be remanded to the probate court for hearing thereon, and disposition thereof, and entered its order accordingly.
Subsequently, and on September 22, 1958, the executor filed a lengthy motion to strike the entire amended petition from the files which, for purposes now important, may be said to be based on the following grounds:
1. That the alleged facts set-forth in Part II of said amended petition and the relief claimed therein is a new and original demand against the estate of said decedent and should be filed in the Probate Court of Barton County.
2. That this court has no jurisdiction to hear or pass-upon any claims of a separate or different nature other than that which petitioner attempted to set forth in her original-petition for allowance which has been transferred by the Probate Court to this court for hearing.
3. That this court has no jurisdiction to pass upon or grant any of the relief requested by said petitioner in what is designated “III Petition for Recovery of Assets.” That the Probate Court- of Barton County, Kansas, has sole and exclusive jurisdiction over the attempted cause of action and relief asked for in what is designated at “III Petition for Recovery of Assets,” and that 'this court, by reason of the order of the probate court transferring said original demand to this court for hearing, has no jurisdiction over any other matters or proceedings pertaining to the administration of the estate of Jacob Manweiler, deceased.
The district court, heard the motion to strike on the date it was filed. On the next day -it sustained such motion and entered an order striking the entire amended petition from the files. Thereupon Hazel perfected the instant appeal wherein she is entitled to a review of that ruling.
In approaching his position, the only ruling of the trial court involved in this appeal -is proper and should be upheld, appellee, with commendable candor, .directs our attention to Roberts v. Setty, 154 Kan. 505, 119 P. 2d 539, and concedes that if the original claim or petition for allowance of demand, which was filed in the probate court, stated a cause of action against the estate of the decedent, such claim or petition could have been amended if the amendments related only to an amplification or enlargement of facts which were previously imperfectly, pleaded; and that such an amendment could have been made to such pleading even after expiration of the nine months’ period for filing a claim had expired. Having, properly made this concession the principal contentions advanced by appellee in support of the trial court’s action in sus-, taining the motion to strike are (1) that the facts set forth in Part II of the amended petition and the relief claimed therein constituted a new and original demand against the estate of the decedent- which, since it had not been filed in the probate court within the time prescribed by G. S. 1949, 59-2239, is barred and unenforceable under the terms and provisions of that section of our statute; and (2) that the district court had no jurisdiction to hear or pass upon any claim or demand of a separate and different nature other than that which appellant attempted to set forth in her original petition.
Thus, in the face of what has been heretofore related, and assuming — without deciding — that in an action such as is here involved a motion to strike a pleading from the files is proper procedure, it appears that in this case we are required to examine the original petition, even though a demurrer had been sustained thereto on the ground it failed to state a cause of action, in order to determine whether such pleading stated a demand in terms sufficient to toll the statute (59-2239, supra) fixing the time within which demands against a decedent’s estate must be exhibited in probate court.
At the outset it may be conceded that appellee’s second contention the district court had no jurisdiction to hear or pass upon any claim or demand of a separate and different nature other than that which appellant set forth in her original petition is correct. (G. S. 1949, 59-301; Egnatic v. Wollard, 156 Kan. 843, 137 P. 2d 188.)
Therefore we turn to the original and the amended petitions for the purpos'e of determining whether appellee’s first contention, that the facts set forth in the amended petition constituted a new and original demand against the decedent’s estate, has merit, mindful that under our decisions (See, e. g., In re Estate of Ray, 180 Kan. 634, 306 P. 2d 190) such pleadings are to be liberally construed and given the benefit of all reasonable inferences. In doing so it is neither necessary nor required that we here detail the contents of the involved pleadings. It suffices to say that after a careful and extended examination thereof, in the light of the rule to which we have referred, we have concluded (1) that although the original petition is far from a model of draftsmanship and includes allegations under which appellant was seeking relief, to which she was not entitled in probate court, it nevertheless contains other allegations which, when liberally construed and accepted as true, were sufficient to establish a valid demand against the estate of her deceased husband, based on the existence and breach of the marriage contract, and therefore stated a cause of action against his estate in terms sufficient to toll the statute (59-2239); and (2) that the allegations of the amended petition did not state an entirely new and different cause of action from that stated in the original but, on the contrary, merely separated the intermingled relief sought in the original petition by setting forth in separate and distinct causes of action, so to speak, the facts relied on to establish appellant’s demand against the estate by reason of the existence and breach of the marriage contract and the facts relied on as warranting recovery by the estate of assets, alleged to have been obtained by the children from their father, in his lifetime, through fraudulent misrepresentations and without consideration.
It must be admitted, as appellee points out, that in both the original and amended petitions appellant sought more relief than that to which she was entitled in a proceeding to establish a demand against an estate under the provisions of the probate code. Even so it does not follow, as is suggested, that fact made either pleading subject to a demurrer or — as here — subject to a motion to strike, which the trial court treated as tantamount to a demurrer. Under our decisions a petition which otherwise states a caúse of action is not subject to a demurrer for the reason it seeks to recover more or different relief than that to which the plaintiff is entitled. (Cooley v. Shepherd, 170 Kan. 232, 225 P. 2d 75; Billups v. American Surety Co., 170 Kan. 666, 672, 228 P. 2d 731; Wilson v. Kansas Turnpike Authority, 181 Kan. 1025, 1028, 317 P. 2d 843; Coolbaugh, Trustee v. Gage, 182 Kan. 145, 149, 319 P. 2d 146; and numerous other decisions cited in West’s Kansas Digest, Pleading, § 193[8]; and Hatcher’s Kansas Digest [Rev. Ed.], Pleading §94.) And to assume arguendo that the prayer of the original petition did not ask for all the relief to which appellant was entitled under its allegations does not mean that pleading was so defective it failed to state facts sufficient to toll the statute (G. S. 1949, 59-2239) and could not be amended as contemplated by G. S. 1949, 59-2408. For decisions holding the prayer is merely the pleader’s motion of the amount of relief to which he is entitled and if the cause of action is sufficiently stated and proved the court will adjudge and decree the proper legal redress, which may or may not conform to the relief prayed for by the pleader, see Eagan v. Murray, 102 Kan. 193, 170 Pac. 389; Fink v. Fink, 173 Kan. 82, 88, 244 P. 2d 184; Farmers Union Elevator Co. v. Johnson-Sampson Constr. Co., 174 Kan. 693, 700, 258 P. 2d 268. See, also, West’s Kansas Digest, Pleading § 72, and Hatcher’s Kansas Digest (Rev. Ed.), Pleading §93.
Having concluded the original petition stated a cause of action in terms sufficient to toll the statute (59-2239), and that the allegations of the amended petition were equally sufficient from that standpoint, we are confronted with another contention advanced by appellee to the effect the ruling on the demurrer to the original petition has become final and is now the law of the case. It may be conceded that, in the absence of a changed ruling by the trial court, there would be merit to this contention. The trouble with appellee’s position on this point is that after sustaining the demurrer to the original petition the trial court, as was its right, changed that ruling and order, permitted the filing of an amended petition, and then overruled a similar and more far-reaching demurrer to the amended petition. In such a situation it cannot be successfully argued, and we refuse to hold, that the first ruling became the law of the case.
Turning to what has been heretofore referred to as ground 3 of appellee’s motion to strike we hold, that under the facts and circumstances existing at the time that motion was ruled upon: (1) The district court had no jurisdiction to pass upon or grant any of the relief requested by appellant in what is designated as “III Petition for Recovery of Assets.” In this connection it is to be noted, that prior to its ruling on the motion the district court had remanded all questions relating to recovery of assets by the estate to the probate court and was no longer concerned therewith; (2) the probate court has original power and authority to direct the executor to institute an action for the purpose of recovering assets belonging to the estate but any action so instituted must be brought in the district court or some other court of competent jurisdiction; (3) the district court’s jurisdiction was limited to disposition and determination of appellant’s demand against the estate for the alleged breach of the marriage contract.
For decisions supporting the three conclusions last above announced see In re Estate of Ray, 634, 636, 637, supra; In re Estate of Slaven, 177 Kan. 185, 277 P. 2d 580; In re Estate of Weaver, 175 Kan. 284, 262 P. 2d 818; Coffey v. Shrope, 180 Kan. 621, 306 P. 2d 164.
Based on what has been heretofore stated and held, and after careful consideration of all arguments raised by counsel respecting the rights of the parties in this appeal, we arfe constrained to hold that under the confronting facts and circumstances, the appellant is entitled to a trial on the merits of her demand and that the trial court erred in sustaining the motion to strike the amended petition from the files. It follows its action in that respect should be vacated and set aside with instructions to overrule the motion, permit the filing of defenses by way of answer, and then proceed to hear the cause.
Finally it should be stated the conclusions herein announced assume the correctness of and are limited strictly to applicable factual averments set forth in what has been heretofore identified as Part II of the amended petition. We are fully aware that upon joinder of issues and a trial upon the merits the appellant may be unable to establish her demand against the estate by adequate proof. That, it may be added, is a matter not presented by the instant appeal and one on which we cannot pass until the trial court has done so.
The judgment is reversed with directions to .proceed in conformity with the views herein expressed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action to recover for personal injuries sustained in an automobile collision.
The jury returned a general verdict for defendant and answered two special questions.
Post-trial motions, including a motion for new trial, being overruled, plaintiff has appealed.
The case has been here before. In the first trial the jury also returned a- general verdict for defendant and answered special questions. Plaintiff appealed. This court reversed and directed a new trial on the ground that two instructions, relating to “joint enterprise” and “unavoidable accident,” were, under the evidence, erroneously given. (Schmid v. Eslick, 181 Kan. 997, 317 P. 2d 459.)
The facts of the case are detailed at length in our former opinion and there is no occasion to repeat them here. At the second trial the two mentioned instructions were not given, but otherwise, it is conceded, the court gave substantially the same instructions as at the first trial. In addition to the general verdict for defendant the jury found (1) that the automobile in which plaintiff was riding at the time of the collision was being driven at a rate of speed greater than was reasonable and prudent, and (3) that plaintiff’s injuries were not occasioned by the negligence of defendant.
In this appeal plaintiff alleges eight assignments of error, most of which have to do with instructions given and those refused. We have examined all contentions with respect to these matters and find them to be without merit. Detailed discussion of them would serve no useful purpose. (Domann v. Pence, 183 Kan. 135, 138, 325 P. 2d 321.) Defendant has been absolved of actionable negligence by two juries. An examination of the record discloses that the trial court fully and properly instructed the jury on all matters in issue, and that plaintiff had his “day in court” and received a fair trial.
We find no error in the record and the judgment is affirmed. | [
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The opinion of the court was delivered by
Schroedér, J.:
This- is a negligence action for damages for personal injuries sustained by the plaintiff as a passenger in an intersection collision between two automobiles in Wyandotte County, Kansas. The plaintiff appeals from a verdict for the defendant and from the overruling of her post-trial motions specifying various trial errors.
On the 25th day of September, 1955, at approximately 5:00 p. m., at the intersection of 38th Street and State Avenue, just west of the city limits of Kansas City, Kansas, the plaintiff, Elizabeth L. Kreh, was riding as a pasenger in an automobile being operated by her husband, Louis Kreh, when it became involved in the collision with the defendant. State Avenue, which is also U. S. Highway 24 and 40, is marked into four driving lanes, but is not a divided highway. Rain was falling at the time of the collision, and the intersection was controlled by traffic lights.
Briefly stated, the Kreh automobile was traveling east on State Avenue and made a left-hand turn at the intersection immediately in front of the defendant’s automobile approaching from the opposite direction on State Avenue.
The plaintiff testified there were two automobiles ahead of them proceeding in the same direction. Her husband brought the automobile to a stop behind these two vehicles which were stopped in obedience to a red traffic light at the-intersection in question. These two automobiles ahead of the plaintiff turned left on 38th Street. She testified her husband again gave a signal for a left turn and continued the signal until his vehicle reached the center of the intersection, where her husband again stopped the automobile. At that time she saw the defendant’s automobile approximately a block away and her husband started to turn the corner left. She looked into 38th Street and then looked again to the east and saw the defendant’s automQbile approaching at full speed. At that time it was “close, to fifty feet away” and she “hollered” to her husband “Watch that dar.” When the plaintiff’s husband looked at her the collision occurred almost immediately.
On cross examination the plaintiff testified that her husband had completed his turn and was on 38th Street when the defendant struck the automobile in which the plaintiff was riding after it was headed due north and clear of the intersection. She estimated the speed of the defendant at 50 or 60 miles per hour.
The deposition testimony of the plaintiff’s husband was admitted into evidence. His testimony was similar to that of the plaintiff except as hereafter noted.' He testified that-he saw the defendant’s west-bound automobile while he was stopped near the center of the intersection; that it was at least 300 feet east at that time; that he could not estimate the defendant’s speed when he first saw him because he was about 30Q feet off, but he assumed the defendant’s speed to be 20 miles per hour at that time. He formed a later opinion when he saw the defendant coming at a terriffic speed, which he estimated to be at least. 50 miles per hour.
Both, the plaintiff and her husband testified that the parties were taken before a justice of the peace.following the collision and the justice asked the defendant how the collision occurred. They both related that the defendant said he was watching some other automobiles and did not see the automobile in which the plaintiff was riding until his (the defendant’s) wife told him that there was a man turning. He said he was watching two other automobiles which had gotten across and was trying to keep up with them; that he was in charge of some children from the Sunday School at Silver Lake, Kansas, and that they had had a picnic at Swope Park in Kansas City.
The testimony of the justice of the peace confirmed the testimony given by the defendant in his court that he did not see Mr. Kreh’s automobile until called to his attention by his wife.
A patrol officer with the Wyandotte County Sheriff’s Patrol investigated the accident and testified that the accident occurred “about even with the curb or the north edge of the pavement.” He related that thp Kreh automobile was making a left-hand turn and was damaged on the right side at approximately the front door. Neither of the automobiles left any skid marks at the intersection. He further related statements made by the defendant to the effect that the defendant was in charge of a Sunday School or a church group and that “one of them was lost.” He testified:
“Q. Did he tell you anything further that you recall?
"A. I recall he said he didn’t see the car he hit, he said he was looking in the back to see if the cars were following him or caught up with him.
“Q. Did he say he had his head turned around?
“A. Looking through the rear-view mirror.
“Q. Did this man, I will ask you if he told you what first called his attention to the Kreh automobile?
“A. He said he heard his wife scream and looked up and the car was right in front of him.”
Another witness who was an officer employed by the Wyandotte County Sheriffs office testified concerning his investigation of the accident. He gave the location of the accident as the northeast corner of the intersection. With reference to the north edge of State Avenue the point of impact was said to have occurred “To the extreme north to the curb line at the edge of the what would be State Avenue, the curb line at the north edge.” He further related there were no skid marks. He also related statements of the defendant to the effect that the defendant was looking around for a car that was lost that was supposed to be following him.
The defendant testified that he resided in Silver Lake, Kansas, and that his wife and son were riding with him on the date in question at the time of the collision. His daughter was riding in a car ahead. His family and a Sunday School class had been to Kansas City and had visited Swope Park,and other places. There were three other cars in the group besides his own. His capacity was that of a chaperon. They had previously stopped at a drive-in lunch on State Avenue and at that time all cars were together. He related that the other cars all left first and that one of the cars was still in sight at the time of the collision. He testified this other car was approximately one-half block ahead of him and passed right through the green light headed west. Confronted with statements made by the other witnesses the defendant denied that any of the other cars in the group were lost or that any of them were behind him.
The defendant further testified that as he got into the intersection and approached near the middle a car swerved from one of the east-bound lanes into the lane in which he was driving. His wife said “That fellow is going to turn.” She made that statement before or about the same time that he saw the vehicle. Prior to that time he had not specifically noticed this particular automobile. He testified at that time the traffic from the west was heavy and that no other cars turned left ahead of this car; that he did not see Mr. Kreh give any arm signal for a left turn; that the Kreh automobile made an arc from the south lane which “had kind of a leaning attitude as it made a turn to the north.” The defendant stated that it was his intention to proceed west through the intersection; that immediately prior to the impact he was traveling at 25 miles per hour; and that he had been driving that same speed prior to the collision. The defendant estimated the speed of the Kreh automobile at 10 miles per hour during the turn.
He drew a diagram giving his description of the accident in which he showed that from the time he first saw the Kreh automqbile he traveled about one-third of his car length. In subsequent testimony he conceded this was incorrect in view of the speeds of the two vehicles and the distance the Kreh automobile traveled before the impact. He also admitted telling the justice of the peace that he did not see this turning automobile until it was called to his attention by his wife. He admitted giving a statement to the plaintiff’s attorney as follows:
“I did not see the car with which I collided until I was halfway through the intersection.” (Emphasis added.)
The defendant, Andrew Wayne Trinkle, further admitted this was still his recollection. He further said it was still his recollection that his car stopped almost immediately headed the same direction (west) and the other car stopped “almost immediately and was facing generally north.”
The defendant’s wife, Dora Lee Trinkle, testified her husband was driving between 20 and 25 miles per hour along State Avenue; that as they approached the intersection, she saw the car turning and “hollered to her husband and at that time the car was in front of them”; and that she did not see any arm signal from the Kreh automobile. She admitted making a statement to the plaintiff’s attorney, who made no unfair suggestions to her, concerning her knowledge of the accident. This statement was recorded by the attorney and was introduced into evidence. A portion of it states:
“I don’t know which lane we were traveling in, however, I never saw the other car until it was in front of us. At this time we were about IS feet from this other car and shortly thereafter I felt the brakes go on and knew my husband had applied the brakes.” (Emphasis added.)
The following special questions, pertinent to this appeal, were submitted by the court and answered by the jury as follows:
“1. Do you find that the defendant committed any act or acts of negligence which were the proximate cause of the accident?
“Answer: No.
“3. Do you find that plaintiff committed any act or acts of negligence which contributed to cause any injuries which she may have sustained?
“Answer: No.
“5. Was the collision the result of an unavoidable accident?
“Answer: Yes.
“6. How far was the Trinkle automobile from the Kreh automobile when the latter smarted the turn to the left?
“Answer: 25 feet.
“7. Do you find plaintiff sustained any permanent injuries as a result of the collision?
“Answer: No.”
Judgment was entered on the verdict for the defendant for costs. The plaintiff’s motion for a new trial, motion for judgment notwithstanding the verdict and motion to set aside answers to special questions were overruled. The plaintiff thereupon duly perfected an appeal specifying as error the questions hereinafter considered.
The position taken by the plaintiff, is that the evidence clearly showed the defendant was guilty of negligence as a matter of law. In her motion for judgment notwithstanding the verdict the plaintiff sought judgment in- her fávor on the question of liability and for a new trial on the question of damages alone. The plaintiff also moved the answer to special question No. 1, finding that the defendant did not commit any act or acts of negligence which were the proximate cause of the accident, and the answer to special question No. 5, finding that the collision was the result of an unavoidable accident, be set aside.
On the record here presented we cannot say the defendant was guilty of negligence as a matter of law.
The plaintiff’s principal contention is that the giving of an instruction on unavoidable accident was erroneous under the circumstances of this case. ’Among the instructions the trial court gave instruction No. 12 which was objected to by the plaintiff. It reads:
“If you find from the evidence in this case that the collision in question here was an accident against which ordinary care on the part of the parties could not have guarded and was not due to the negligence of either of the parties, then neither party could be responsible to the other in this case. Accidents may and often do happen for which no one is to blame, and for which no liability exists. If the collision testified to in this case was an accident of that sort, then neither party can recover against the other, and your verdict should be for the defendant.”
The motor vehicle cases which deal with “accident” instructions, whether literally instructions on “accident,” “mere accident,” “pure accident,” “unavoidable accident,” or of an essentially similar character, are in conflict and to some extent they are in confusion in this country, particularly in regard to when the instruction may properly be given, or is required to be given. It may also be said the law in this jurisdiction is not completely settled as to when the instruction may properly be given,.or when it must be given.
Logically, a “mere accident,” or an “unavoidable accident,” or an event of the same nature however designated, is an occurrence not proximately caused by the negligence of any person. This in motor vehicle cases must ordinarily mean, at least, a misadventure occurring without negligence of the plaintiff or the defendant, or the driver of the vehicle of either. On this basis, if mere logic is pursued as a test for determining when an accident instruction of any sort is appropriate, it would follow that a sufficient foundation for the instruction exists when from the evidence the jury could reasonably conclude that there was neither negligence nor contributory negligence.
On the basis of the foregoing definition, certain types of cases are in their nature not appropriate for the instruction. Such case is presented where it is evident that there must have been negligence on the part of the defendant or of the plaintiff or of both of them. Ordinarily, in intersectional collision cases there is no possibility of mere accident or unavoidable accident requisite to the instruction.
Turning now to our own decisions, we find a recent definition t of an “unavoidable accident” státed in Knox v. Barnard, 181 Kan. 943, 317 P. 2d 452, as follows:
“Generally speaking, as applied to automobile negligence cases, the term ‘unavoidable accident’ excludes and repels the idea of negligence, and refers to one which is not occasioned in any degree, either directly or remotely, by the want of such care or prudence as the law holds every person, bound to exercise— that is, an occurrence which is not contributed to by the negligent act or omission of either party. In one sense, the term is synonymous with, mere accident’ or ‘pure accident,’ which imply that the accident was caused by some unforeseen and unavoidable event over which neither party had control.” (Syl. ¶ 3.)
The terms “mere accident” or “pure accident” were said in Meneley v. Montgomery, 145 Kan. 109, 113, 64 P. 2d 550, to be used when it is desired to repel the idea of negligence, and are equivalent to the words “not by defendants’ negligence.”
These two definitions standing alone point to confusion. Under the definition in Meneley, if literally interpreted and logically applied, a defendant could rightfully insist .on the instruction if. there .was any evidence from which a jury might-find that he was not guilty of negligence. Generally, until the past few years, this has been the practice on the part of trial courts concerning the giving of the “unavoidable accident” instruction.
Under the definition in Knox v. Barnard, supra, (quoted or paraphrased with approval in Schmid v. Eslick, 181 Kan. 997, 317 P. 2d 459; and Carlburg v. Wesley Hospital & Nurse Training School, 182 Kan. 634, 323 P. 2d 638), if logically applied, the instruction would be improper unless the jury could reasonably conclude that there was neither negligence nor contributory negligence.
It is significant to note that no decision in this state has held the refusal to give the unavoidable accident instruction was reversible error.
In Knox v. Barnard, supra, the defendant argued he was entitled to an instruction on his theory of the case, and he further argued the evidence showed the collision to be unavoidable so far as he was concerned. The question was raised by the defendant in his pleadings, but the trial court refused to instruct the jury on the defendant’s theory of unavoidable accident. While it was conceded that the defendant was entitled to an instruction on his theory of the case, citing In re Estate of Erwin, 170 Kan. 728, 735, 228 P. 2d 739, this court held that the evidence did not justify the giving of an instruction on unavoidable accident. The court said:
“. . . A careful examination of tile evidence convinces us that as to Barnard it did not present a question of unavoidable accident, but rather, a question of his negligence in operating his truck in the manner shown under the existing conditions and circumstances.” (p. 953.) (Emphasis added.)
It must also be noted in Knox v. Barnard, supra, the court made reference to the definition in the Meneley case and after defining an unavoidable accident as above quoted (citing 65 C. J. S., Negligence, §21, beginning at page 429, as authority) stated in the opinion:
“. . . that where an accident is caused by negligence there is generally no room for the application of the doctrine; that in order to bring a case within tire rule of unavoidable accident it is not sufficient that the injury should have been inevitable or unavoidable at the time of its occurrence, for one who by his own negligence has created, brought about, or failed to remedy a dangerous condition or situation is liable for a resulting injury to another, although, in view of the condition or situation which existed at the time, the injury could not have been prevented, and that one seeking to avail himself of the protection of the rule must show that he himself was in no way to blame for the happening. It is further said that a case is not brought within the rule by the fact that an injury is partly attributable to inevitable accident, and that one is liable for the combined consequences of an inevitable or unavoidable accident and his own negligence.” (p. 952.) (Emphasis added.)
The italicized portion of the foregoing statement would seem to indicate that the court has compromised the logical application of the definition of an unavoidable accident stated in the opinion.
In Meneley v. Montgomery, supra, the defendant requested an unavoidable accident instruction which the trial court refused. It was there recognized that both the question of the defendants’ negligence and that of contributory negligence on the part of the plaintiff were questions for the fact-finders under proper instructions. But the court held, in spite of the definition to which reference has heretofore been made and under the circumstances just indicated, that it was not error for the trial court to reject such instruction, stating:
“This presented not a question of pure or unavoidable accident but a question of appellants’ negligence in attempting to negotiate the hill on the south side of the road, in view of all the dangerous circumstances.” (p. 113.) (Emphasis added.)
It is observed that in both the Knox and Meneley cases the jury returned a verdict for the plaintiff finding the defendant in each case guilty of negligence and the matter was first presented to this court on appeal after final judgment.
An analogous situation is presented in Ripley v. Harper, 181 Kan. 32, 309 P. 2d 412. The court was considering a typical intersection collision and one ground of error claimed by the appellant was the refusal of the trial court to submit a special question asking whether the collision was the result of an unavoidable accident. It was there said:
“We find nothing in the record to indicate anything other than that the collision was the result of negligence on the part of either or both parties involved. There was no evidence to justify the submission of the question, and it was not error to refuse to give it.” (p. 34.) (Emphasis added.)
Another case which did not involve an automobile collision also concerned the refusal of the trial court to give an unavoidable accident instruction in Carlburg v. Wesley Hospital & Nurse Training School, supra. There the plaintiff was a patient in a hospital for a series of operations and while still under the influence of an anesthetic was moved from the recovery room to a room which he was to occupy as a patient. It was alleged the employees and attending nurses neglected to place the sideboards on the bed in an upright position to protect and prevent the plaintiff from falling out of bed, and that by reason thereof the plaintiff fell from the . bed and injured himself.' Upon trial the jury returned a verdict ■for the plaintiff which this court affirmed, and with respect to the refusal of the trial court to give the unavoidable accident instruction, it was sáid:
“Carlburg, who at the time of the accident was in at least a semi-conscious ' condition, was under the complete control of- the hospital, its employees and attendants. There was nothing unavoidable about this accident. Either the hospital was negligent in its duty to Carlburg or it was not and the court so instructed the jury.” (p. 638.) (Emphasis added.)
On the basis, of the foregoing authorities it would therefore seem that a trial court would be' well advised not to give an unavoidable accident instruction unless from the evidence the jury could reasonably conclude that there was neither negligence nor contributory negligence, where quite plainly the instruction is peculiarly appropriate.
We shall next turn to the cases in this jurisdiction in which an ■ unavoidable accident instruction was given to the jury in an effort to ■ascertain when the giving'of an unavoidable accident instruction is proper.
The propriety of giving an unavoidable accident instruction was not challenged in Engle v. Bowen, 122 Kan. 283, 251 Pac. 1108, where the defendants charged error on the part of the trial court in refusing to give an instruction defining an unavoidable accident. The trial court did, however, include in its instructions a definition of the term “pure accident” which it defined , as one “for which no one was responsible.” Upon the facts and circumstances presented by the case, this was held to be an appropriate and sufficient definition of the term “unavoidable accident.”
In re Estate of Erwin, 170 Kan. 728, 228 P. 2d 739, was a case in which an unavoidable accident instruction was given to the jury by the trial court. There two vehicles traveling on a highway which had been recently resurfaced with white chat or stone collided head-on. The highway was very dusty. The only surviving witness testified that a vehicle which had passed immediately prior to the collision “at a speed of about sixty miles , an hour, stirring up the dust so .that he could not see anything; that the dust blinded us’; ‘about a split second after this car passed us we collided’.” (p. 732.)
The jury found the collision to be the result of an accident as defined by the court’s instructions and returned a verdict for the defendant which was affirmed on appeal. There the plaintiff made no complaint that the instruction was inherently wrong or that the definition of “accident” was erroneous, but objected simply on the ground that the evidence was such the instruction should not have been given. The court there said after the instructions were given it still remained open for the jury to determine whether Lester Blevins version of the testimony was to be fully credited, or whether the jury might find, under all the circumstances, Noel Erwin was not at fault, “and not being at fault, the collision might be termed an accident. What the jury might eventually conclude has nothing to do with the correctness of the instruction.”
Where no objection is made to an instruction on unavoidable accident such instruction becomes the law of the case unless it is erroneous as a matter of law. (Stephenson v. Wallis, 181 Kan. 254, 311 P. 2d 355.)
Upon the facts and circumstances presented in Schmid v. Eslick, supra, it was held reversible error to give the unavoidable accident instruction. There an automobile collision resulted between. two vehicles proceeding in the same direction, the one driven by the defendant having proceeded only 25 feet after turning onto the highway from an intersection. The plaintiff was the passenger in the other automobile which struck the defendant’s vehicle from the rear. It was dark when the collision occurred and the headlights of both automobiles were illuminated. The jury returned a verdict for the defendant, but in answer to special questions it found the injuries sustained by the plaintiff were the result of an “accident” as defined in the court’s instructions, and also found the drivers of both vehicles “or either of them” could have avoided the collision by exercising ordinary care. In the opinion the court dealt at some length with the doctrine of joint enterprise and concluded that it was erroneous for the trial court to instruct the jury on the question of joint enterprise, holding:
“Where the evidence is undisputed and the facts and circumstances clearly show a passenger did not have equal privilege and right to,control the operation of the vehicle, the issue of joint enterprise becomes a question of law for the court’s determination and should not be submitted to the jury as a question of fact.” (Syl. f 6.)
The trial court there instructed the jury on all phases of the law of negligence appropriate to the issues raised by the pleadings and to the facts and circumstances established by the evidence of both parties. Under the facts and circumstances disclosed by the record in that case, including the circumstance that it was error to instruct on the question of joint enterprise, it was held reversible error to give the unavoidable accident instruction on the ground that it was inconsistent with the evidence. It was there said:
“. . . The term 'unavoidable accident’ implies that the injury occurred without the negligence of either party and could not have been prevented by their exercise of ordinary care and prudence . . .” (p. 1006.) Emphasis added.)
For the above statement the court cited various sections of C. J. S. and quoted Syllabi ¶¶ 3 and 4 in Knox v. Barnard, supra.
Two other cases not related to an automobile collision deserve mention. In Bradley v. Conway Springs Bottling Co., 154 Kan. 282, 118 P. 2d 601, the plaintiff was injured by a bottle of Pepsi-Cola which exploded in her hand as she was putting it in the icebox. The action was alleged under the doctrine of res ipsa loquitur and the court upon the facts and circumstances presented by the evidence summarily stated there was no room in the case for the application of the doctrine of unavoidable accident.
In Tawney v. Railway Co., 84 Kan. 354, 114 Pac. 223, the plaintiff was injured while riding in a buggy drawn by a horse when the engine of a railroad train backed into the buggy. The jury returned a general verdict for the plaintiff. Since the specific findings of the jury exonerated the defendant from all acts of negligence alleged, the judgment was not permitted to stand. The court stated:
“. . • The jury found that the plaintiff was not guilty of contributory negligence. Conceding that she was not, this leaves a situation where the law declares that the injuries were caused by what was, under the circumstances, an unavoidable accident . . .” (p. 356.)
It may be said, after a careful review of the foregoing decisions, that an “unavoidable accident,” or an event of the same nature however designated, is generally recognized as an occurrence not proximately caused by the negligence of any person (This is the substance of the definition given in Knox v. Barnard, supra, Syllabus ¶ 3); and that an attempt has fairly been made by the court to pursue logic as a test under this definition to determine when an “accident” instruction of any sort is appropriate.
In an ordinary negligence action the plaintiff must prove that the injury complained of was proximately caused by the defendant’s negligence, and the defendant under a general denial may show any circumstances which tend to militate against his negligence or, if negligent, its causal effect. The mere fact that the defendant pleads in his answer the defense of “unavoidable accident” does not entitle him to an instruction on the doctrine of unavoidable accident.
If the so-called defense of unavoidable accident is nothing more than a denial by the defendant of negligence, or a contention that his negligence, if any, was not the proximate cause of the injury, the pleading on this point is immaterial, since an instruction to the jury under these circumstances would inform the jury that the question of unavoidability or inevitability of an accident arises only where the plaintiff fails to sustain his burden of proving that the defendant’s negligence caused the accident. The instruction under these circumstances would serve no useful purpose, since the ordinary instructions on negligence and proximate cause sufficiently show that the plaintiff must sustain his burden of proof on the issues of negligence in order to recover.
Thus, the allegation in the defendant’s answer stating the collision was the result of an unavoidable accident which prudent care on his part was unable to prevent, would not, standing alone, entitle him to an instruction. The instruction given must be germane to the issues raised by the pleadings and must be limited to those issues supported by some evidence. (Schmid v. Eslick, supra, inluding authorities cited therein; Knox v. Barnard, supra; and In re Estate of Erwin, supra.)
Where the evidence before the jury is confined to the issues of negligence, an instruction which informs the jury that the law recognizes what is termed an “unavoidable or inevitable accident” may give the jury the impression that unavoidability is an issue to be decided, and that if proved, it constitutes a separate ground o'f non-liability of the defendant. They may then be misled as to the proper manner of determining liability, that is, solély on the basis of negligence and proximate causation. The instruction under these circumstances is not only unnecessary, but it is confusing. This was illustrated by the special findings of the jury in Schmid v. Eslick, supra.
It would therefore appear to be the better practice, where the evidence is confined to issues of negligence, for the trial court to eliminate any reference to “unavoidable accident” in summarizing the pleadings of the defendant for the jury in its instructions since the defendant’s pleadings on “unavoidable accident” have become immaterial.
A determination- whether, in a specific instruction, the probable effect of the instruction has been to mislead the jury and- whether the error has been prejudicial so as to require reversal depends upon all the circumstances of the case, including the evidence and the other instructions given. No precise formula can be drawn. (Reference is made to a recent extended annotation on “Unavoidable Accident Instruction” in 65 A. L. R, 2d 1, covering 138 pages.)
In the case before us we are confronted with an intersection collision where the issues between the parties upon which there was evidence is confined to negligence. Upon the evidence presented by the record herein it was improper to give the unavoidable accident instruction and to submit a special question upon it.
The trial court instructed the jury on negligence, proximate cause, contributory negligence and various other instructions commonly given in automobile collision cases, including the applicable statutes. Most of the instructions requested,by the plaintiff were given by the trial court in substance. But it refused to instruct the jury that there could or may be more than one proximate cause of an injury. This instruction was requested by the plaintiff and the refusal of the trial court to give it was error.
The trial court also refused to give the following requested-instruction: •
“VIII.
“You are instructed that if you find and believe from the evidence that the plaintiff sustained injuries as a result of the concurrent negligence of the defendant, Andrew Wayne Trinkle, and of Louis Kreh, the operator of the automobile in which plaintiff was riding, which concurrent negligent acts or omissions caused the injuries to plaintiff, then the defendant, Andrew Wayne Trinkle, would not be excused -from liability for his negligence by reason of the negligence of another. In other words, if you believe from the evidence that the injuries sustained by the plaintiff were the result of the concurrent negligence of two parties, neither of said parties can escape liability for his own negligence by showing the negligence of the other. In this connection, you are instructed that where a person is injured by the joint or concurrent negligence of two operators of motor vehicles, he does not have to show that one operator was more or less negligent than the other and it is no defense on the part of either to show that one was more negligent than the other.”
Since the plaintiff was the passenger in the automobile driven by her husband and her husband’s negligence could not be imputed to her, this was an essential instruction to the plaintiff’s case. In fact, it was the theory upon which plaintiff sought recovery and upon which the case was tried. (See Knox v. Barnard, supra, and In re Estate of Erwin, supra.) Under the circumstances it was error for the trial court to refuse this instruction, or one of similar import.
One other specification of error deserves attention. Over the plaintiff’s objection Exhibit 23 was offered in evidence. This exhibit was identified by Dr. Joseph Gendell as an X-ray report made by another doctor at the medical center. The basis of the plaintiff’s objection to the exhibit was that the doctor making the report was not present to testify and, therefore, could not be cross-examined, and for the further reason that the report was hearsay. These objections were valid and the Exhibit should have been rejected.
It is apparent this Exhibit may have been particularly damaging to the plaintiff, since the jury found the plaintiff sustained no permanent injuries as a result of the collision. The nature of the Exhibit was to confirm this finding, but not properly having been admitted into evidence, it was prejudicial to the plaintiff.
Upon- all the facts and circumstances presented by the record in this case, the plaintiff is entitled to a new trial on all issues by reason of the trial errors heretofore discussed.
The judgment of the trial court is reversed with directions to grant a new trial in accordance with the views herein expressed.
Price, J., dissents .from paragraph 3 of the syllabus and the corresponding portion of the opinion. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
The sole question presented is whether service of the notice of appeal from the probate court to the district court complied with the provisions of G. S. 1949, 59-2405.
On August 12, 1958, during the course of the administration of the decedent and trust estates of Minnie Patterson, deceased, the appellant, Florence Patterson, the mother and legal guardian of David Arel Patterson, a minor and devisee under the will of Minnie Patterson, filed her notice of appeal from the probate court to the district court, which, omitting the date and signatures, reads as follows:
“Notice of Appeal from Probate Court to District Court.
“To W. W. Chandler, Homer Sharpe, Ira E. Cline, Frank Reynolds, and to J. W. Warner, Probate Judge of Rice County, Kansas, for all adverse parties:
“You and each of you are hereby notified that Florence Patterson, the natural and legal guardian of David Arel Patterson, a minor, appeals to the District Court of Rice County, Kansas, from all orders, judgments, decrees, and decisions of the Probate Court of Rice County, Kansas, rendered in the above entitled matter on July 18, 1958, in which said court made its findings and from all orders made admitting said will to probate and the qualifications of said executors from all orders, judgments, decrees, and decisions of the Probate Court of Rice County, Kansas, since said dates.” (Emphasis supplied.)
On the same day, counsel for the appellant served a copy of the notice of appeal upon the probate judge who personally acknowledged service as follows:
“Acknowledgment of Service of Notice of Appeal
by Attorney of Record.
“Receipt is hereby acknowledged of a true and correct copy of the foregoing notice of appeal delivered by appellant therein named to the undersigned Hal Alderman, not being in Rice County, Kansas, the same was sent registered United States Mail, attorney of record for W. W. Chandler, Homer Sharpe, Ira E. Cline and Frank Reynolds and J. W. Warner, Judge of the Probate Court of Rice County, Kansas, in the therein entitled matter.”
In addition, and on the same day, counsel for appellant executed and filed an affidavit of proof of service of the notice of appeal upon the probate judge personally, and upon counsel of record for all adverse parties by mailing a copy of the notice of appeal by registered mail, but since counsel was absent from the state, he did not receive service of the notice until his return to Lyons on August 20, 1958.
Thereafter, the proceedings were duly certified by the probate judge to the district court. On October 1, 1958, the appellees, Homer Sharpe, W. W. Chandler, Ira E. Cline and Frank Reynolds, as executors and trustees of the Minnie Patterson estates, appeared specially and filed a motion to dismiss the appeal and to strike the transcript from the records of the district court for the reason that the appeal was not taken in compliance with the applicable statutes, and, therefore, the district court had no jurisdiction. The motion was sustained, the appeal was dismissed, and the matter remanded to the probate court. Hence, this appeal.
The perfection of an appeal from the probate court to the district court is a simple matter. G. S. 1949, 59-2405 provides the manner in clear and unambiguous terms, and reads in part:
“To render the appeal effective: (1) The appellant shall serve upon the adverse party or his attorney of record, or upon the probate judge for the adverse party, a written notice of appeal specifying the order, judgment, decree, or decision appealed from, and file such notice of appeal in the probate court with proof of service thereof verified by his affidavit. . . (Emphasis supplied.)
By the terms of the statute, service of the notice of appeal may be had by filing the notice in the probate court and serving it upon the probate judge for all adverse parties. However, the mere filing of the notice of appeal in the probate court and the marking it “filed” by the probate judge does not dispense with service of the notice upon him. Personal service can, of course, be had upon the adverse parties, or upon their attorney of record (In re Estate of Kruse, 170 Kan. 429, 432, 226 P. 2d 835; In re Estate of Freshour, 177 Kan. 492, 496, 280 P. 2d 642). See, also, In re Estate of Demoret, 169 Kan. 171, 180, 218 P. 2d 225. But, service upon all three is not required to perfect the appeal; proper service upon any one of the three named in the statute is sufficient.
Was the service of the notice of appeal in the instant case sufficient to perfect the appeal and confer jurisdiction upon the district court? We think it was. It is conceded that the notice of appeal was to all adverse parties who were named in the notice of appeal as well as to J. W. Warner, the probate judge of Rice county, Kansas, for all adverse parties. While the acknowledgment of service by the probate judge did not contain the words “for the adverse party,” we do not think that omission fatal. The probate judge’s acknowledgment of service was that,
“Receipt is hereby acknowledged of a true and correct copy of the foregoing notice of appeal delivered by appellant therein named to the undersigned . . . J. W. Warner, Judge of the Probate Court of Rice County, Kansas, in the therein entitled matter.”
The notice of appeal and the acknowledgment of service were contained in one instrument, and this court is of the opinion that inasmuch as the notice of appeal was to the probate judge for all adverse parties, the acknowledgment of service by him of a true and correct copy of such notice “in the therein entitled matter” was service for all adverse parties to whom the notice of appeal was directed, and was sufficient to perfect the appeal to the district court.
In In re Estate of Kruse, supra, an analogous question was presented. In that case the notice of appeal was directed to a named individual as administrator, the named attorney for the administra tor, and to the probate judge. Service was had upon the attorney for the administrator and upon the probate judge. It was contended that certain heirs-at-law were adverse parties and that failure to serve them with notice rendered the appeal ineffective. In denying that contention, this court said:
“We think appellee’s interpretation of section 2405, supra, is too narrow. By its provisions notice could be served upon the adverse party or his attorney of record, or upon the probate judge for the adverse party. Here notice was served upon both the attorney for the administrator and the probate judge. It is true the notice did not specify the probate judge for the adverse party, but from the language of the statute it is difficult to ascertain any other legislative intent than that notice to the probate judge is notice to adverse parties. ... (1. c. 432.)
In the instant case service of the notice of appeal upon the probate judge was service for all adverse parties, and perfected the appeal.
It is unnecessary to discuss and decide the sufficiency of the proof of service upon the attorney of record for the adverse parties by registered mail, suffice it to say the acknowledgment of service by the probate judge dispensed with the necessity of proof of service (Polzin v. National Cooperative Refinery Ass'n, 180 Kan. 178, 302 P. 2d 1003).
The judgment of the district court is reversed with directions to reinstate the appeal and hear and determine the issues presented.
It is so ordered. | [
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|
The opinion of the court was delivered by
Robb, J.:
This is an appeal by the state corporation commission and the intervenors from the trial court’s judgment setting aside, cancelling and holding for naught the commission’s previous order of unitization and pooling of plaintiffs’ acreage along with other non-contiguous and non-adjoining acreage, as an exception to the provisions of paragraph “g” of the basic proration order of the Hugoton gas field.
The plaintiffs filed a complaint with the commission as soon as they had knowledge of its unitization and pooling order, which complaint the commission considered as a petition for rehearing but since it was filed too late under G. S. 1949, 55-606, the complaint was ultimately dismissed by order of the commission entered on October 24, 1956. In its journal entry of judgment the trial court also set this order aside, which brings up our primary question regarding notice to plaintiffs of the original hearing before the commission pertaining to intervenors’ application.
The intervenors, as producers, filed their application with the commission seeking allowables of gas production for five new gas wells they had drilled in the Hugoton gas field. The well in question was designated as the C. D. Day to which.was attributed the following acreage:
“The East Half (EK) of Section 6, the Northwest Quarter (NWK) of Section 5, the Southeast Quarter (SEK) of Section 8, all in Township 31 South, Range ' 34 West, Seward County, Kansas, with a completed well being located approximately 50 feet from the South line and 1320 feet from the East line of the Northeast Quarter (NEH) of said section 6.”
However, the trial court’s order, and our only concern herein, involves plaintiffs’ 160 acres which was the southeast quarter of section eight.
' The plaintiffs were record titleholders of the southeast quarter of section eight which fact was known to the intervenors. The intervenors in their original application to the commission dated August 30,1955, asked that due notice of its filing be given to all interested parties, as by law provided. In the record before us, the only reference made to any name was C. D. Day so far as the application discloses. No mention of either plaintiff was set out notwithstand ing they were the record titleholders, as previously stated. By this failure on the part of the intervenors, the plaintiffs’ names, addresses, or residences were not on file with or otherwise made known to the commission as required by G. S. 1949, 55-605:
“The commission shall set a reasonable time and place when such hearing shall be had, and give reasonable notice thereof, in no case less than ten days, to all persons interested therein by one publication of such notice, in some nawspaper or newspapers having a general circulation in this state, and by mailing (second class) a copy thereof to each such person who shall have filed with the commission his name and address or whose name and address is otherwise made known to it.” (Our emphasis.)
Because of intervenors’ failure as above indicated the commission was unable to serve plaintiffs and have them before it to hear any objections they might have to an order unitizing and pooling their land with the other non-contiguous and non-adjoining acreage.
In their brief and on oral argument the plaintiffs call our special attention to the record which shows that during the hearing before the commission regarding the merits of intervenor’s motion to dismiss plaintiffs’ motion because it was filed out of time, Mr. Linley, a member of the commission, asked of plaintiffs’ counsel:
“Mr. Brollier, would you state for the Commission’s information whether your client’s name and address was on file with the Commission at the time of the hearing, when notices were sent out concerning the hearing so as to enable her to receive notice?”
Mr. Brollier replied:
“It wasn’t. My client didn’t .even know that there were such notices mailed to anyone.”
In other words, the plaintiffs were deprived of their right to bq heard by reason of intervenors’ failure properly to show in their application who the interested parties were which failure, in turn, prevented the commission from giving proper notice to such interested parties, as required by G. S. 1949, 55-605, with the result that the commission was without power and authority to determine any rights of plaintiffs in the southeast quarter of section eight or make any order binding upon them. Thus, the plaintiffs’ complaint was not a petition for rehearing because by reason of intervenors’ fault they had never had a hearing.
Review of the record convinces us the trial court was correct when it found that notice was given as provided by G. S. 1949, 55-705b, 55-706, and 55-605, but the record shows that neither of the plaintiffs had actual notice of the hearing.
The trial court was also correct when it set aside, cancelled and held for naught the orders by the commission dismissing plaintiffs’ complaint.
The judgment of the trial court in regard to the issues raised by plaintiffs’ complaint is affirmed in accordance with the opinion and views expressed in consolidated appeals No. 41,315, 41,316, and 41,317, Stevens v. State Corporation Commission, 185 Kan. 190, 341 P. 2d 1021, this day decided.
Judgment affirmed. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant-appellant, Clyde Gerald Sargent, entered a plea of guilty to charges of murder in the first degree (K. S. A. 1973 Supp. 21-3401), aggravated robbery (21-3427), aggravated assault on a law enforcement officer (21-3411), and unlawful use of weapons (21-4201). Following the defendant’s plea of guilty he was sentenced to life imprisonment on the murder count and to terms of years on the remaining counts. All sentences imposed were to run concurrently. At the time the sentences were imposed the district court also ordered that the defendant be examined at the Kansas Reception and Diagnostic Center and directed that a report of examination and evaluation be made to the court within 120 days after sentencing. The date of sentencing was March 25, 1974. On July 12, 1974, defendant’s counsel moved the court pursuant to 21-4603 to modify the life sentence previously imposed on the murder count. Although such facts do not appear in the record, counsel for the defendant states in his brief that the defendant was 18 years old at the time of the commission of the offense, was a first offender, and further that the trigger man who actually killed the victim was a codefendant. The defendant’s motion for modification of sentence was heard by the trial court on the same day it was filed. The trial court found that it had no jurisdiction to modify a Class A sentence and therefore refused to modify the life sentence. The defendant filed a timely appeal to this court.
The sole point raised on this appeal is stated by defendant’s counsel as follows: The court erred in finding that it had no jurisdiction to modify a Class A sentence within 120 days after the sentence was imposed by directing that a lesser penalty be imposed in lieu of that originally adjudged within statutory limits.
A determination of the issue raised requires us to examine carefully several provisions of the Kansas Criminal Code and Code of Criminal Procedure. The pertinent parts of the following statutes should be considered:
“21-4501. Classification of felonies and terms of imprisonment. For the purpose of sentencing, the following classes of felonies and terms of imprisonment authorized for each class are established:
“(a) Class A, the sentence for which shall be death or imprisonment for life. If there is a jury trial the jury shall determine which punishment shall be inflicted. If there is a plea of guilty or if a jury trial is waived the court shall determine which punishment shall be inflicted and in so doing shall hear evidence;
“(b) Class B, the sentence for which shall be an indeterminate term of imprisonment, the minimum of which shall be fixed by the court at not less than five (5) years nor more than fifteen (15) years and the maximum of which shall be life;
“(c) Class C, the sentence for which shall be an indeterminate term of imprisonment, the minimum of which shall be fixed by the court at not less than one (1) year nor more than five (5) years and the maximum of which shall be twenty (20) years;
“(d) Class D, the sentence for which shall be an indeterminate term of imprisonment, the minimum of which shall be fixed by the court at not less than one (1) year nor more than three (3) years and the maximum of which shall be ten (10) years;
“(e) Class E, the sentence for which shall be an indeterminate term of imprisonment, the minimum of which shall be one (1) year and the maximum of which shall be five (5) years; . . .”
“21-4601. Construction. This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law. . . .”
“21-4603. Authorized dispositions. (1) Whenever any person has been found guilty of a crime upon verdict or plea and a sentence of death is not imposed, the court may require that a presentence investigation be conducted by the Kansas reception and diagnostic center. If such offender is sent to the Kansas reception and diagnostic center, the Kansas reception and diagnostic center may keep him confined for a maximum of one hundred twenty (120) days or until the court calls for the return of such offender. The Kansas reception and diagnostic center shall compile a complete mental and physical evaluation of such offender and shall make its finding known to the court in the presentence report.
“(2) Whenever any person has been found guilty of a crime and a presentence report has been compiled and submitted to the court, the court may adjudge any of the following:
“(a) Commit the defendant to the custody of the secretary of corrections or, if confinement is for a term less than one (1) year, to jail for the confinement for the term provided by law;
“(b) Impose the fine applicable to the offense;
“(c) Release the defendant on probation;
“(d) Suspend the imposition of the sentence;
“(e) Impose any appropriate combination of (a), (b), (c), and (d).
“The court in committing a defendant to the custody of the secretary of corrections shall not fix a maximum term of confinement, but the maximum term provided by law shall apply in each case. In. those cases where the law does not fix a maximum term of confinement for the crime for which the defendant was convicted, the court shall fix the maximum term of such confinement. In all cases where the defendant is committed to the custody of the secretary of corrections, the court shall fix the minimum term within the limits provided by law.
“Any time within one hundred twenty (120) days after a sentence is imposed or within one hundred twenty (120) days after probation has been revoked, the court may modify such sentence or revocation of probation by directing that a less severe penalty be imposed in lieu of that originally ad judged, within statutory limits. If an appeal is taken and determined adversely to the defendant such sentence may be modified within one hundred twenty (120) days after the receipt by the clerk of the district court of the mandate from the supreme court. The court may reduce the minimum term of confinement at any time before the expiration thereof when such reduction is recommended by the secretary of corrections and the court is satisfied that the best interests of the public will not be jeopardized and that the welfare of the inmate will be served by such reduction. The power here conferred upon the court includes the power to reduce such minimum below the statutory limit on the minimum term prescribed for the crime of which the inmate has been convicted. The recommendation of the secretary of corrections and the order of reduction shall be made in open court.
“. . .” (Emphasis supplied.)
“22-3717. Parole authority and procedure. (1) The authority shall have power to release on parole those persons confined in institutions who are eligible for parole when, in the opinion of the authority, there is reasonable probability that such persons can be released without detriment to the community or to themselves.
“(2) After expiration of one hundred twenty (120) days from the date of sentence, the Kansas adult authority is hereby granted the authority to place upon intensive supervised parole any inmate classified in the lowest minimum security classification who has achieved such status under rules and regulations promulgated by the secretary of corrections, except in the case where a death sentence or life imprisonment has been imposed as the minimum sentence or where the minimum sentence imposed aggregates more than fifteen (15) years, after deduction of work and good behavior credits. Persons confined in institutions shall be eligible for parole after fifteen (15) years if sentenced to life imprisonment or to a minimum term which, after deduction of work and good behavior credits, aggregates more than fifteen (15) years.” (Emphasis supplied.)
The defendant’s position on this appeal is essentially as follows: K. S. A. 21-4601 codifies a rational view of the individualization of sentencing. A sentence imposed in a criminal case should take into consideration not only the criminal offense but also the individual characteristics of the offender. Under the provisions of K. S. A. 21-4603 a district court has a broad discretion in sentencing to commit the defendant to the custody of the secretary of corrections or to impose a fine or to release the defendant on probation or to suspend the imposition of sentence or to impose any combination of the above. By the specific provisions of 21-4603, at any time within 120 days after sentence is imposed the court may modify such sentence by directing that a lesser sentence be imposed in lieu of that originally imposed within statutory limits. Counsel for the defendant assumes that the power of the court to modify the sentence within the 120-day period includes the power to impose a new sentence for a term below tbe statutory minimum provided for the particular offense. Counsel for defendant argues that 21-4603 does not specifically exclude Class A felonies and if the legislature had intended to limit the power of the district court to modify sentences for offenses other than Class A felonies, it would have so provided. He therefore reasons that the district court had jurisdiction to modify the defendant’s original life sentence by imposing a new minimum sentence for a fixed number of years.
The state in its brief vigorously argues that the district court had no jurisdiction to modify a Class A sentence within the 120-day period after the original sentence was imposed by resentencing defendant to a term of imprisonment for less than life. The prosecutor agrees that under 21-4601 punishment for the criminal offender should be individualized and determined according to the individual needs and characteristics of the particular offender. He maintains, however, that although 21-4601 and 21-4603 vest a great deal of discretion in the district court to individualize punishment, the court is nevertheless limited by the statutory provisions. He argues in substance that the legislature did not intend to grant to a sentencing court the power to modify a Class A sentence because in order to qualify for either modification or reduction under 21-4603 the sentence imposed must carry a minimum term of confinement and a flat fife sentence is not a minimum term. According to the state the only way a “life-termer” can be eligible for parole before serving at least 15 years of his sentence is by obtaining executive clemency from the governor. In support of its position the state relies on an opinion of the attorney general to that effect dated May 11,1972.
We have concluded that the district court reached the right result but not for the reasons advanced by the state. A careful analysis of K. S. A. 21-4603 ( 2) discloses that the pertinent paragraph which grants to the district court the power to modify a sentence within 120 days and to- reduce a minimum term of confinement at any time before the expiration thereof is really a grant of two separate and distinct powers: (1) The power to modify a sentence and (2) the power to reduce the minimum term of confinement.
The power to modify is contained in the first half of the paragraph in the following language:
“Any time within one hundred twenty (120) days after a sentence is imposed or within one hundred twenty (120) days after probation has been revoked, the court may modify such sentence or revocation of probation by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. . . .”
The power to modify a sentence is vested solely in the sound discretion of the district court but is subject to the limitation that the new sentence must fall within the limits of the statutory minimum term provided for the particular offense. Under K. S. A. 21-4501 a variable minimum term and a fixed maximum term is provided for Class B, C, and D felonies. If a district court originally imposed a sentence on the higher side of the minimum term, it has the power to modify that minimum sentence by imposing a lower minimum sentence within the statutory minimum provided. Under 21-4501 the only sentence provided for a Class A felony is either death or life imprisonment. Under the present status of the law the death penalty can no longer- be imposed. (State v. Randol, 212 Kan. 461, 513 P. 2d 248.) Hence the only sentence which may lawfully be imposed for a Class A felony is life imprisonment and there is no power in the trial court to modify a life sentence to a fixed term of years less than for life, within the 120-day period.
The statutory provisions in 21-4603 ( 2) which create the power to modify are immediately followed by language which creates the power to reduce the minimum term of confinement. This language is as follows:
“. . . The court may reduce the minimum term of confinement at any time before the expiration thereof when such reduction is recommended by the secretary of corrections and the court is satisfied that the best interests of the public will not be jeopardized and that the welfare of the inmate will be served by such reduction. The power here conferred upon the court includes the power to reduce such minimum below the statutory limit on the minimum term prescribed for the crime of which the inmate has been convicted. The recommendation of the secretary of corrections and the order of reduction shall be made in open court.”
It is important to note that the power to reduce a minimum term of confinement may be executed at any time after imposition of sentence but before expiration of sentence and is not restricted to the period within 120 days after sentence is imposed or after probation has been revoked. Furthermore the power to reduce the minimum term of confinement is not vested in the sole discretion of the district court but requires the recommendation of the secretary of corrections. This power to reduce the minimum term of confinement is specifically declared to include the power to reduce such minimum below the statutory limit on the minimum term prescribed for the crime of which the inmate has been convicted. It is also necessary that the recommendation of the secretary of corrections and the order of reduction be made in open court.
In view of our construction of K. S. A. 21-4603 ( 2) we hold that the trial court was correct in its refusal to modify the life sentence previously imposed to a term of years less than life. The reason is that it did not have the power to modify the life sentence to1 a term of years because such a modification would have the effect of imposing a less severe penalty not within the statutory limits. Here the motion filed by the defendant sought to invoke the power of the court to- modify, not the power to reduce the minimum term of confinement which required the recommendation of the secretary of corrections.
We should now determine whether or not the district court has the power to reduce a life sentence to a term of years under its power to reduce the minimum term of confinement. As pointed out above the state maintains that a district court has no power whatsoever under 21-4603 to reduce a life term because a flat life sentence is not a minimum term within the meaning of the statute. We do not agree with the state’s construction of 21-4603. In reaching this conclusion we have considered other sections of the Criminal Code and Code of Criminal Procedure. We note that under section (1) of 21-4603 whenever any person has been found guilty of a crime and a sentence of death is not imposed, the court may require that a presentence investigation be conducted by the Kansas reception and diagnostic center. It is the presentence investigation and report which the statute contemplates should be the basis of determination of the ultimate sentence imposed in a felony case. The statute specifically authorizes the district court to require such a presentence report in all cases where a sentence of death is not imposed which includes cases where a sentence of life imprisonment is imposed. If it were not intended for the district court to have some control over a life sentence, it would not seem logical for the legislature to authorize a district court to require a presentence investigation in a case where a fife sentence is the statutory penalty. Furthermore 21-4603 ( 2) provides that in all cases where the defendant is committed to the custody of the secretary of corrections, the court shall fix the minimum term within the limits provided by law. This language would imply that a fife sentence con stitutes a minimum term. In addition to this the language in 21-4603 ( 2) which gives to the district court the power to reduce the term of confinement does not specifically exclude Class A felonies. Finally K. S. A. 22-3717 ( 2) specifically refers to a sentence of life imprisonment as a minimum sentence in the following language:
"After expiration of one hundred twenty (120) days from the date of sentence, the Kansas adult authority is hereby granted the authority to place upon intensive supervised parole any inmate . . . except in the case where a death sentence or life imprisonment has been imposed as the minimum sentence or where the minimum sentence imposed aggregates more than fifteen (15) years, after deduction of work and good' behavior credits. . . .” (Emphasis supplied.)
For the reasons set forth above we have concluded that a term of fife imprisonment imposed for a Class A felony constitutes a minimum term of confinement within the meaning of K. S. A. 21-4603 and a district court may reduce a life sentence to a term of years where such reduction is recommended by the secretary of corrections and the court is satisfied that the best interests of the public will not be jeopardized and that the welfare of the inmate will be served by such reduction.
The judgment of the district court is affirmed.
Fromme, J., not participating. | [
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|
The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by Moore Childers (defendant-appellant) from a jury verdict finding him guilty of second degree murder. The facts may be stated as follows:
On July 21, 1973, and previous thereto, James C. Frost resided with his wife, their three-month-old baby, and Douglas J. Hanley, Mrs. Frosts five-year-old child by a prior marriage, at 2727 North Green, Wichita, Kansas. The house is located on the west side of North Green and faces east. The residence situated immediately to the north of the Frost home belonged to the appellant, who lived in that home with his wife.
After the Frosts had completed their evening meal on July 21, 1973, Mr. and Mrs. Merle Leon Horn, Sr. (Mrs. Frost’s sister and brother-in-law), and their five-year-old son, Merle, Jr., visited the Frost’s home. Frost prepared drinks for everyone including himself; however, without drinking it, Frost left his house and walked a couple of houses south on the same block to visit a friend. A short time later, Mrs. Frost began to wonder where her husband had gone and she inquired about the neighborhood until she located him. Frost was in the process of helping a neighbor clean some fish and he told Mrs. Frost to go on home, that he would return soon.
During the evening Emory A. Farris, a thirteen-year-old boy who lived at 2726 North Green (directly across the street from the Frost’s house), had been listening to a car radio in front of the appellant’s house and playing in the yard. Apparently during the time Frost was away from home, the appellant had told Farris to keep Doug Hanley and Merle Horn, Jr., from running across his yard because it aroused the dogs and caused them to bark while the appellant was trying to sleep.
When Frost returned home from visiting his neighbor and cleaning fish, Farris stopped him and told him what the appellant had said, and also that the appellant had been cussing at Doug and Merle. Frost replied that he would take care of it and started walking across the appellant’s yard in the direction of the front door. Farris did not accompany Frost but nevertheless witnessed the subsequent events.
According to Farris, Frost walked a few feet past a window located in the southeast comer of the appellant’s house (which was the appellant’s bedroom), when the appellant said something to Frost through the window. Farris could not understand the words but he recognized the appellant’s voice. Frost then walked back to the window and talked with the appellant. According to Farris, Frost asked the appellant to quit cussing Doug and Merle, and the appellant replied that he had given the children some candy. Frost then stated he appreciated that but he would like for the appellant not to cuss the children any more. Farris also testified that the appellant stated during his conversation with Frost that if the children did not stay out of his yard he “would blow their asses off.”
Frost then walked away from the window in the direction of his own house when the appellant said something further. Thereupon Frost walked back in front of the appellant’s window and asked the appellant what he had said. Without any further conversation, the appellant fired a shot while Frost was standing in front of the window. After the first shot Frost started running in a southeasterly direction toward the street. After running a short distance in an upright position Frost stooped over. The appellant continued to shoot as Frost ran. Apparently, Frost was struck by a bullet as he neared the street. Farris counted four shots; after the third one he ran to the Frost’s house and knocked on the door. By the time Mrs. Frost had opened the door and the screen, Frost had run from the appellant’s windows around his driveway located just south of the appellant’s property to his porch where he fell unconscious and died within a few minutes.
On cross-examination Farris testified that it was dark at the time of the shooting and that Frost did not have anything in his hands when he walked to the appellant’s bedroom window.
A pathologist testifying on behalf of the state established that Frost died as a result of a bullet penetrating his lower back, probably while he was in a bent position. A firearms examiner testified that the bullet removed from Frost was fired from the appellant’s revolver.
A police detective who- arrived on the scene shortly after the shooting to take photographs, testified that one of the slippers Frost had been wearing was found in the south part of the appellant’s front yard and the second slipper was found in Frost’s driveway. The detective stated a street light was located on the comer of the yard at 2713 North Green which is the house located south of Frost’s residence. The United States Weather Bureau report for the evening of July 21 described the sky as partly cloudy. The witness stated on cross-examination that he arrived on the scene at 10:33 p. m.; that it was dark; and if the appellant had turned over in his bed and shot out the window, he was not sure if the appellant could have seen whom he was shooting at. However on redirect examination the detective agreed that if it had been dark in the appellant’s bedroom he would have been able to see out the window in the direction Frost ran to some extent, due to the street light located south of Frost’s house.
The appellant was arrested without resistance shortly after officers arrived on the scene. He told the officers his gun was in his bedroom bureau next to his bed. After being duly advised of his rights the appellant made statements to officers on two occasions. These statements were fundamentally consistent with his testimony at the trial; consequently, for the sake of brevity, we will limit our discussion to the appellant’s testimony at the trial to present his theory of defense.
The appellant testified he went to bed at approximately 6:30 or 7:00 o’clock p. m. His bedroom was located on the southeast corner of the house and his bed was positioned about one foot from a screened window in the east wall. The appellant was awakened a little later that evening by his dogs barking in the backyard. The appellant got out of bed and went outside with a flashlight to quiet the dogs. He noticed that Doug Hanley and a visitor were playing near the dogs, thus causing them to bark. The appellant then returned to bed, but when the children continued to make noise he went back outside and gave them candy so they would play elsewhere. Thereafter, the appellant retired once again.
The appellant testified that later in the evening “way after dark” he was awakened when Frost came to the appellant’s bedroom window and in an angry manner told the appellant to stop bothering his children. The appellant denied having bothered the children or having cussed at them and told Frost to leave. The appellant stated he then “rolled back over into my bed under my window and started to go back to sleep and almost asleep” when Frost returned to the window. Due to a hedge placed next to the house, the appellant was unable to see whether or not Frost carried anything in his hands. According to the appellant, Frost started arguing all over again about the treatment of the children.
The appellant kept a .38 caliber revolver in a bureau between his bed and the east window. He had acquired the gun to protect his wife and himself from a gang of young people which had been thieving in that section of Wichita and harassing older people.
When Frost returned on the second occasion, the appellant reached into the bureau drawer from his bed and grabbed the revolver, sat up on the bed and shot once through the screen “not shooting at him [Frost] because I couldn’t see to well, it was dark, to scare him out of my yard, make him get away, leave me alone.” Thereafter, the appellant fired four or five more shots as he saw Frost run in the direction of the street.
The appellant testified that he was afraid Frost was going to hurt him or possibly his wife, who was sleeping in the next room when he returned the second time; that Frost was aggravated and agitated so appellant had a right to shoot because he did not know whether or not Frost had a gun; and Frost was trespassing in such a manner as to entitle the appellant to protect his property.
The appellant’s testimony was inconsistent as to whether he realized at the time he was shooting that the man outside the window was Frost, or whether he merely saw the unidentifiable silhouette of a man; however, he testified several times that he was firing into the dark and into the ground but not at any particular person. The following excerpts from the appellant’s testimony on direct examination emphasize this point:
“Q. And you just fired through here?
“A. Yes, sir.
"Q. Was you shooting at any person or anything?
"A. No, sir. I was just shooting into the ground.
“Q. Huh?
“A. I was shooting into the ground.
“Q. Just shooting through the screen?
“A. Yes, into the ground.
“Q. And what was your purpose of shooting through the screen?
“A. To scare him away.
“Q. When you — in other words, you didn’t know that you were shooting at him?
“A. No, sir.
“Q. When did you first learn that he was shot?
“A. After the police had taken me down to the police station about an hour and a half afterwards. The detective told me that Mr. Frost was dead and I said oh my God, I did not intend to do that, to shoot Mr. Frost. I had no intentions of doing it.”
In an effort to contradict the appellant’s testimony that he was shooting into the ground, the state introduced photographs of two bullet holes which had been discovered in the house situated across the street from the appellant’s house. Apparently, the owner of the house had not noticed them prior to the shooting incident, but no ballistic tests had been conducted to determine whether or not the bullets lodged in the house were shot from the appellant’s revolver.
The state’s evidence also included a police officer’s testimony that Mrs. Childers, the appellant’s wife, had stated on the evening of the shooting that she awoke when the shots were fired and yelled to the appellant to find out whether he knew what was happening, and he replied: “I told that nigger to keep out of my yard and to keep away from the window.” The officer described Mrs. Childers as very excited and having difficulty in breathing.
The only other testimony produced by the defense was that of his wife and three character witnesses.
At the conclusion of the trial tire court submitted the usual instructions to the jury on second degree murder and, as a lesser included offense, voluntary manslaughter. After due deliberation the jury returned a verdict finding the appellant guilty of second degree murder.
In his motion for new trial the appellant submitted as newly discovered evidence that the ground outside the appellant’s bedroom window was inclined down toward the street. The argument was if the ground had not been at an incline, and if Frost had not been running in a crouched position down the incline, he would not have been hit in a vital organ, and that this evidence substantiates the appellant’s testimony that he was shooting downward into the ground and not at Frost. The trial court in ruling upon the motion said:
“. . . There is an incline at that house, I don’t know if that is newly discovered or not; but the point to be made from that to remember, the two bullets that went all the way across the street and over to the other house. The testimony was that they were about four and a half feet off the ground, which would tend to indicate that he was shooting on a level path, and I do agree that the incline probably had something to do with the deceased too, being struck. If he had had flat ground, he might have been able to get away from this man.”
The defendant contends, in part, that the district court erred in failing to instruct the jury on the lesser offense of involuntary manslaughter as defined by K. S. A. 21-3404. The record is not clear whether the appellant’s attorney requested an instruction on involuntary manslaughter.
The absence of a requested instruction, however, is not controlling. The duty to give instructions as to possible lesser crimes is controlled by K. S. A. 21-3107 (3) which provides:
“In cases where the crime charged may include some lesser crime it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced, even though such instructions have not been requested or have been objected to.”
(See, State v. Masqua, 210 Kan. 419, 502 P. 2d 728 [instruction not requested]; and State v. Weyer, 210 Kan. 721, 504 P. 2d 178 [request that instruction not be given].)
In State v. Clark, 214 Kan. 293, 521 P. 2d 298, this court relied upon K. S. A. 21-3107 (3) to reverse a conviction for failure to instruct. There it was said the accused has a right to have his theory of the case presented to the jury under appropriate instructions, where there is support in the evidence therefore, even though the evidence may be weak and not conclusive; that the testimony of the defendant alone, if tending to show a lesser degree of crime, is sufficient to require the court to so instruct. (See also, State v. Boyd, 216 Kan. 373, 532 P. 2d 1064.)
The long standing policy behind the need for instructions was plainly expressed in The State v. Buffington, 66 Kan. 706, 72 Pac. 213:
“The defendant in a criminal prosecution has a right to have the court instruct the jury in the law applicable to his contention, if it be supported by substantial evidence, however weak, unsatisfactory or inconclusive it may appear to the court. To refuse so to instruct the jury would be to invade its province in the trial of a case. The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of an inferior degree of the offense charged, but whether there is any substantial evidence tending to prove an inferior degree of the offense. If there is, then the question of such degree should be submitted to the jury. The unsupported testimony of the defendant alone, if tending to establish such inferior degree, is sufficient to require the court so to instruct.” (pp. 709, 710.)
On jury function see State v. Long, 210 Kan. 436, 502 P. 2d 810.
The state presented a strong case to support its theory that the defendant’s killing of Frost met the second degree murder requirements of K. S. A. 21-3402. But the defendant’s testimony, although partially inconsistent, raises serious questions whether the requisite intent necessary for second degree murder or voluntary manslaughter was present.
K. S. A. 21-3404 sets out the elements of involuntary manslaughter:
“Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the commission of an unlawful aot not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. As used in this section, an ‘unlawful act’ is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state which statute or ordinance is enacted for the protection of human life or safety.”
Involuntary manslaughter is distinguished from voluntary manslaughter by the lack of intent to kill. (See, State v. Wilson, 215 Kan. 437, 524 P. 2d 224.) Obviously the existence or nonexistence of this criminal intent is crucial to the appellant’s case.
The appellee erroneously argues involuntary manslaughter is an act done unintentionally — not a killing done unintentionally. Involuntary manslaughter has been defined by this court as a killing done unintentionally. (State v. Weyer, supra.)
In our opinion the record discloses sufficient evidence supporting the appellant’s theory that the killing was done unintentionally to require a jury instruction on involuntary manslaughter.
The appellant testified the incident took place way after dark. This was corroborated by Emory Farris, the thirteen-year-old witness and by the laboratory investigator Harold Foster, who arrived shortly after the shooting. It is possible, even with the street light, that the appellant did not see clearly outside the house.
The appellant in his testimony insisted he was just shooting into the ground; that he was only trying to scare Frost; that he had no intention of killing Frost. He repeatedly testified to this effect, explaining the event was just an accident; that it was a mistake.
Beyond the appellant’s own testimony, counsel for appellant places great reliance on an incline which is downward from the house toward the street. Counsel implies his client’s intention to fire into the ground, where the ground inclines downward from the house, resulted in a bullet traveling parallel to the ground. The prosecutor, while not accepting completely this contention, did agree that the incline probably had something to do with the deceased being struck.
The situation is similar to that facing this court in State v. Weyer, supra. There the prosecution submitted evidence from which it could fairly be said that the second of six shots fired from Weyer’s pistol during the melee was the one ending the victim’s life. Weyer testified the second shot was a warning shot for the victim’s benefit —aimed between the victim and the victim’s vehicle. Weyer denied that he had any intention of shooting the victim when he fired the warning shot.
In Weyer, a second degree murder case, the instruction on involuntary manslaughter was rejected by Weyer’s counsel. Here in a second degree murder case the instruction on involuntary manslaughter may not have been requested. The difference is immaterial. Under K. S. A. 21-3107 (3) the circumstances and the evidence here presented requires the giving of the instruction on involuntary manslaughter, a lesser included offense.
On this state of the record failure to give an involuntary manslaughter instruction was reversible error.
The appellant further urges that the trial court committed prejudicial error in allowing the state to introduce gruesome color photographic slides of the deceased’s body taken during the autopsy. This court recently discussed a similar issue in State v. Boyd, supra. (See Anno. Evidence, Photograph of Corpse, 73 A. L. R. 2d, § 8, p. 787.) We think it was error to admit these gruesome color photographic slides. In view of our reversal further discussion is not warranted.
The judgment of the lower court is reversed with directions to grant a new trial.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Robb, J.:
On appeal to the district court in an eminent domain proceeding to condemn certain farmland in Johnson county for the construction of interstate highway No. 50, the amount of the verdict and judgment in favor of the landowners was less than the amount awarded by the court-appointed appraisers. Within the same term the trial court entered an order whereby the landowners were granted permission to file a motion for new trial out of time, the verdict and judgment were set aside and a new trial was granted on the landowners’ motion and the court’s own motion. The commission has here appealed from that order and the principal question raised is — did the trial court err in granting the landowners a new trial on its own motion?
In a colloquy between the trial court and counsel at the time of the hearing of the landowners’ motion, the court stated:
“Of course, the Court can’t protect the litigants against their own judgment in handling of their lawsuits and the employment of counsel. The judge, I guess, about always in every case he tries if he were representing either of the parties, would do something different than they do in the handling of a lawsuit. However, sometimes cases are so out of line that the judge must step in and set aside the verdict and the judgment on it. Of course, those are unusual circumstances.” (Our emphasis.)
After reciting the appearances and the purposes of the landowners’ motion for new trial, the court’s order in pertinent part stated:
“The court having examined the pleadings on file, and having considered the evidence offered by the landowner, and being well and fully advised in the premises finds that said motion should be granted and leave given to refile the motion for a new trial instanter.
“Whereupon, said motion for a new trial is refiled instanter, and argument is had upon said motion for a new trial.
“That the court is dissatisfied with the verdict returned by the jury in said cause on March '4, 1958, and that on the court’s own motion, the verdict and judgment entered thereon should be set aside, and that a new trial should be granted.
“The court further finds that the plaintiffs’ motion for a new trial should be sustained.
“It Is Therefore by the Court Ordered, Adjudged and Decreed that the verdict and judgment entered on March 4, 1958, in the above entitled matter is hereby set aside and a new trial ordered.
“It Is Further by the Court Ordered, Adjudged and Decreed that the plaintiffs’ motion for a new trial is hereby sustained.”
The trial court’s above remarks indicate that in its opinion the case was so far out of line that the court had to “step-in” and “set aside” the verdict and judgment. Because of this dissatisfaction with the verdict the court, within the same term and on its own motion, ordered the new trial.
In Klopfenstein v. Traction Co., 109 Kan. 351, 198 Pac. 930, this court stated that “. . . by a wilderness of decisions covering half a century, the rule is settled in this state that ordinarily a trial court, when dissatisfied with a verdict, is in duty bound to set it aside.” Numerous supporting cases were thereafter cited. The Klopfenstein case was followed in In re Nemaha County, 142 Kan. 907, 52 P. 2d 630, where this court in a per curiam opinion in an eminent domain proceeding stated:
“The principal error assigned in this appeal pertains to the order of the trial court in sustaining appellee’s motion for a new trial, where the court expressed its dissatisfaction with the verdict. In such a situation it was the trial court’s duty to grant a new trial, and the appeal from that ruling presents no substantial question for appellate review. . . .”
In Myers v. Wright, 167 Kan. 728, 208 P. 2d 589, where a motion for new trial was filed too late hut part of the motion was addressed to the court’s judicial discretion, it was held the court below had authority to rule thereupon within the term of court in which a verdict is returned for the reason that when a trial court is not satisfied with a verdict, it not only has the authority but it has a duty to grant a new trial. In that instance the verdict for plaintiff was for $595.95. The trial court announced it was not satisfied with the verdict and would grant a new trial unless plaintiff would accept a tender of $216.39, which plaintiff declined, and a new trial was granted. In affirming the trial court, this court said:
“Our former decisions make it clear that the court not only has the authority, but it.is the duty of the court to set aside a verdict and grant a new trial if the court is not satisfied with the verdict. The court should not render a judgment upon a verdict unless the verdict is approved by the court.” (p. 729.)
Two additional cases where the same rule was pronounced are Glenn v. City of Topeka, 171 Kan. 25, 229 P. 2d 737, and State Investment Co. v. Pacific Employers Ins. Co., 183 Kan. 229, 326 P. 2d 303. In the latter opinion a statement from Federal Land Bank v. Richardson, 146 Kan. 803, 806, 73 P. 2d 1005, was quoted as follows:
“ ‘Independent of the code, it is well recognized in this state that a district court has jurisdiction of its judgments and orders during the term of court at which they are rendered, and in the exercise of its judicial discretion on motion of an interested party, or on its own motion, the court■ may set aside or modify the judgment or order. . . (p. 232.)
We cannot agree with appellant that the trial court based its order sustaining the motion for new trial on the fact of inefficiency or neglect of the attorney. (Cole v. Lloyd, 161 Kan. 150, 152, 166 P. 2d 577.) Here, as in the Cole case, the trial court may have so indicated but considering the entire statement of the trial court, other reasons making it necessary that a new trial be granted become apparent. Neither are we able to see, as contended by ap pellant, that the general rule applicable in eminent domain proceedings is contrary to our own Kansas rule. (See 29 C. J. S., Eminent Domain, § 307; 18 Am. Jur., Eminent Domain, § 366.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action for a declaratory judgment seeking construction of a written family settlement agreement and warranty deeds executed in accordance therewith, and for other equitable relief.
The pertinent facts are summarized and set out as follows: Columbus W. Litsey, a widower in his eighties, was the owner of 400 acres of land in Harper county, Kansas, which were under lease for oil and gas, and a residence in Wichita. He had three adult sons and two adult daughters, his sole heirs-at-law — Ethan L. Litsey, Ora F. Litsey, Floyd R. Litsey, Carrie May Springer and Orpha R. Carrington (now Miller). On July 7, 1934) his five children and their spouses gathered for a family reunion at the home of Carrie May Springer in Pecos, New Mexico, where their father was living. He informed them that he was old and feeble and desired to convey to them all his real estate and that he wanted everything divided equally; that they should get together and make a division of his estate in parcels agreeable to themselves,, providing for his care and maintenance during his lifetime.
In accordance with their father’s request the sons and daughters withdrew to an available cabin to work out a tentative agreement. They divided the real estate into five tracts, valued them separately and determined the sums of money required to equalize them, making provision for the payment of notes owed by certain heirs. They then wrote the description of each tract on a separate slip of paper and each heir drew one of the five slips as his or her share. They were all aware of the fact that the father had recently executed an oil and gas lease on the 400-acre farm. They then returned to the Springer home and discussed the provisions of their tentative agreement with their father. At the conclusion of the discussion Orpha Miller (appellee) typed the family settlement in sextuplícate and it was thereupon signed by the father and his three sons and two daughters. It reads as follows:
“This being the wish of our father C. W. Litsey, through love and affection, we his five children in order to carry out his wishes and desires to enter into the following contract this 7th day of July 1934, Pecos, New Mexico, to wit;
“1.
“In case anyone of the heirs wishes to dispose of his or her share of said property, first choice to be offered to the heirs at the fixed valuation of all heirs. The valuations as follows: E. L. Litsey $3000, east 80, O. F. Litsey $3000 south 80, Carrie May Springer $3000 west 80, Orpha Carrington $1500, grass land 160 acres, Floyd R. Litsey $1500, Wichita Property. (As Deeded)
“2.
“In case two or more wanted to purchase any of said property offered for sale at the fixed price, it would go to the highest bidder.
“3.
“All money’s received from oil rights, leases or royalties of the said property to be divided equally among said heirs.
“4.
“In case of death of said heirs before death of father, property and money to go to husband or wife of deceased, or subject to a will of said heirs.
“5.
“In case of death of husband and wife that have no blood relation to wit: E. L. Litsey to be equally divided among his children.
O. F. Litsey to be equally divided among his children.
Carrie May Springer to her estate.
Orpha R. Carrington to Homer Carrington.
Floyd R. Litsey to Marie Gilliland.
“All money’s and holdings to he divided equally among heirs after all expenses are paid.
“7.
“We the heirs of C. W. Litsey wish to authorize Carrie May Springer to have full right and power to check on all money’s and handle all papers concerning same; in case of death or inability to handle same, one of the heirs to be selected.
“8.
“In case any one of said heirs wishes to trade or exchange for E. L. Litsey’s SO acres NS NWS township 25-31-6 may do so without consent of heirs.
"9.
“To equalize the valuation E. L. Litsey, O. F. Litsey and Carrie May Springer each to pay into the estate the amount of $600; Carrie May Springer •duly authorized to pay to Orpha R. Carrington and Floyd R. Litsey the amount of $(900 each %.
“10.
“Two notes of E. L. Litsey and Floyd R. Litsey in the amount of $600 each to be cancelled and the like sum to be paid to O. F. Litsey, Carrie May Springer and Orpha R. Carrington.
“11.
“This contract to be executed prior to the settlement of said estate.”
[The above agreement was duly signed by the father and the five children.]
At the same time the sons and daughters executed and signed the following separate supplemental agreements:
“The grantor reserves for himself the sole use and benefit of the income from this property so long as he shall live.”
“We, the undersigned; children of C. W. Litsey, hereby appoint Carrie Mae Springer to act as our agent for any funds coming into the estate of C. W. Litsey and authorize her to check against such funds now deposited or to be ■deposited in The First National Bank in Harper, Harper, Kansas.”
Simultaneously with the execution of the written family settlement agreement, the father, C. W. Litsey, executed separate warranty deeds to the respective children, which deeds were subsequently duly recorded.
The record discloses that the Litsey family was closely knit. ■Carrie May Springer was the agent and secretary for the family and 'kept all of them advised of family affairs. Her first deposit in the Harper bank was $200 derived from oil and gas lease rental. She ■collected the income from the property and paid the bills, and the brothers and sisters went over the accounts once a year. Upon their father’s death on February 15, 1939, funeral bills and expenses were paid from the account, assets were collected, notes were can celed, the owelty was paid and the balance was distributed equally among the five children. Carrie testified, “After father died some of the oil and gas money came in and I used it to make payments between the various heirs.” She testified that her brother Ora spoke of paragraph three of the agreement, which referred to moneys received from oil rights or leases or royalties, to the effect that if there were any received it would be divided just the same as any other part.
On April 29, 1953, Carrie wrote a letter to Myrtle Ann Litsey, widow of her deceased brother Floyd R. Litsey and mother of Marie Gilliland (appellant), stating in part, “Now on Mar. 4th they started in on the oil well on the N. 80 and have worked day & night since. They want oil and don’t know it may be a dry oil well but they have found gas. You know these oil men don’t tell one very much. Yes we know that we (5) E. L. Ora O. C. & F. — all signed togather and if we would get an oil well you will get Floyd’s share — and you know we can’t tell what they will do — We didn’t sell any royalty and if we 'do get oil you will have your share.”
As late as March 9, 1957, Carrie wrote to Marie Gilliland, stating in part, “Gillie all the five heirs'reed a copy of the agreement that was made at Pecos N. Mex. 7/7-1934 Orpha and I here togather this 9th day of Mar. 1957, and we are thankful we have carried out the agreement of the said heirs up to this daté. 1¶1 Now when any money is rec’d from any producing oil well on any of said properties, the money would be divided according to said agreement.”
Carrie testified that she had placed the family settlement agreement in the bank and that when she wrote the letter to Myrtle she was trying to answer in a way that was according to the agreement. All the heirs were cognizant of Carrie’s letters and the statements contained therein.
The trial court, in construing the instruments, found that the family settlement contract was intended by all the parties thereto to be effective only during the life of the father, C. W. Litsey, and a reasonable settlement period thereafter, and entered judgment accordingly for the appellees, Carrie May Springer, Bessie E. Litsey, Orpha R. Miller, C. H. Carrington and Edith G. Litsey. From this judgment Marie Gilliland appeals and, in substance, contends the trial court erred in not granting her a vested equitable undivided one-fifth interest in and to the oil and gas under the land in question.
Appellees first challenge appellant’s right to be heard on the ground that notice of appeal was not served on all the adverse parties whose rights are sought to be affected by the appeal. We have examined the record and find no merit to appellees’ contention. No further comment is necessary.
Appellees concede the question to be determined on the issues joined is the interpretation of the. agreement and the period of time it was intended to cover. We cannot .bring ourselves to concur with the interpretation placed, on the instruments by the trial court. We have before us the same written- instruments as did the trial court and we can examine them and determine their meaning and effect as well as did the trial court. (Gardner v. Spurlock, 184 Kan. 765, 769, 339 P. 2d 65, and cases cited therein.)
The general rule in the interpretation of contracts .is to ascertain the intention of the parties and to give effect to that intention if it can be done consistent with legal principles. Whatever, may be the inaccuracy of expression or the inaptness of the words used in an instrument in a legal view, if the intention of the parties can be clearly discovered, the court will give effect to it and will liberally construe the words accordingly. It is not. the function of the court to look outside the instrument to get at the intention of the parties; its sole duty is to find out what is meant by the language of the instrument (12 Am. Jur., Contracts, § 227). Greater latitude is allowed in construing an instrument which is prepared by a draftsman who is a layman, or unskilled, than in a case in which the instrument is prepared by. a skillful draftsman (17 C. J. S. Contracts §. 294, p.. 687). The law presumes that the parties understood their contract and they had the intention which its terms import. It is not the function of courts to make contracts but to enforce them as made (Gardner v. Spurlock, supra).
It may be further stated that family settlements of estates are favorites of the law; when fairly made they .are to be given a liberal interpretation and should not be disturbed by those who entered into them. (Riffe v. Walton, 105 Kan. 227, 182 Pac. 640, 6 A. L. R. 549; Brent v. McDonald, 180 Kan. 142, 152, 300 P. 2d 396.) Appellees agree with this statement of the law and concede the agreements are valid and the conveyance effective. ■ The question then is —what did they convey?
The language of the instruments clearly reflects the father’s desire to divide his entire estate equally among his five children and their named heirs, subject during his lifetime to his right to all the income therefrom. The father having only recently leased the land for oil and gas, they were all conscious of the prospective value of those rights and that in the future it might be possible to drill a producing oil or gas well on part of the real estate and dry holes on other parts. In order for the children to share equally they made provision in paragraph three for such contingency by stating that each should participate equally in all money received from any oil and gas rights in the property conveyed. They made provision for plaintiff, Carrie Springer, as agent, to carry out the trust imposed in her and in case of her death, for one of the other heirs to serve in her place. The heirs further provided that during his lifetime their father would have all the income from the property. Paragraph six provided for an equal division of the personal property after the expenses were paid; paragraph nine, for the payment of owelty; paragraph ten, for the satisfaction of the debts owing the father by two of the children.
The desire to divide everything equally and equitably could not have been more fully demonstrated by laymen in drafting the instruments. The parties carried out the agreements and subsequent to the death of the father, Carrie, obviously in accordance with the family settlement agreement, collected some of the oil and gas money and made payment to the heirs. As late as April 29, 1953 and March 9,1957, Carrie Springer, with the knowledge and consent of the remaining heirs, wrote Myrtle, the widow of Floyd, and Marie, the heir of Myrtle, respectively, to the effect that all the heirs had received a copy of the family settlement agreement and they were thankful they had carried out the agreement of the heirs up to that date; that when any money was received from any producing oil well on any of the property it would be divided according to the agreement. The clear' intent of the parties as provided in the contract was expressed.
Pursuant to the contract, the father executed a warranty deed to each of his children, dividing the property as he had directed and as they had agreed upon among themselves. Each deed legally conveyed a fee simple title to the grantee therein as to the whole estate. However, in accordance with the contract entered into by the parties, the deeds were executed and the grantees thereof took legal title to the oil and gas in place subject to a trust in favor of the five children and their named successors and heirs, who, as tenants in common, held vested equitable title-to the oil and gas in place. That this is the import of the contract is further borne out by the fact it provided that any one holder- of the legal title could sell his or her property upon consent of the other holders of the equitable title. (Restatement of the Law of Trusts, § 23, p. 72; 89 C. J. S. Trusts § 43, p. 778.) It is obvious that a bonafide purchaser for value of the legal title would take free and clear of any equitable rights vested in the cestui que trust.
In other words, at the completion of the entire transaction, the legal title to the real estate vested in each grantee of the deeds, and the equitable title to the oil and gas in place vested in the five children and their named successors and heirs. In view of the above, the rule against perpetuities has no application in this case.
The judgment of the trial court is reversed and the case is remanded with instructions to proceed with the trial in accordance with the views herein expressed.
It is so ordered.
Fatzer, J., dissents. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from an order quashing an execution levied upon real estate and setting aside the sale thereunder.
On March 5, 1954, in a divorce proceeding in the district court of Wyandotte county, plaintiff Frances E. Fangrow was granted a divorce from defendant Fredrick Franklin Fangrow, and was awarded the custody of two minor children of the marriage. The decree settled the property rights of the parties, and provided that defendant pay the sum of $15 per week for the support of the minor children. Plaintiff was awarded certain real estate in Johnson county and the household goods as “her sole and separate property, free and clear of any right or claim of the defendant.” The remainder of the real property consisting of two tracts of real estate in Wyandotte county was set aside to the defendant as “his sole and separate property, free and clear of any right or claim of the plaintiff.” The decree further provided that defendant pay plaintiff s attorney, as and for attorneys fee, the sum of $150.
The defendant paid nothing on the child support installments as require^ by the decree, and the attorney’s fee was never paid.
Several proceedings in contempt were had and garnishment summons was issued and served on tenants of the defendant occupying one of the tracts of real estate set over to him by the decree, which is the real estate involved in this appeal.
On April 8, 1957, approximately two weeks after the garnishment summons was issued and served, the defendant conveyed the real estate involved in this appeal to his daughter by a previous marriage, Daisy B. Link, and her husband Charles Link, in joint tenancy by warranty deed, which was filed of record in Wyandotte county May 9, 1957.
On October 1, 1957, praecipe was filed by plaintiff directing that execution be issued against the real estate in question. On the same day, an execution was issued reciting a judgment against the defendant for due and unpaid child support installments in the amount of $2,955, $150 attorney’s fees, costs of suit in the amount of $26.40 and accruing costs, describing the real estate in question, and commanding the sheriff, for want of goods and chattels of the defendant, to levy upon the real estate described.
The sheriff levied the writ of execution upon the real estate; notice of sale under the execution levy was duly made according to law, and on November 19, 1957, the sheriff, at a sheriff’s sale and pursuant to the execution, sold the real estate described therein to Claude L. Higgins for the sum of $280.24, the proceeds of which were distributed by the clerk of the district court as follows: $222.62 for ad valorem taxes due and unpaid, and after a distribution of the balance for costs, a deficiency of $3,105 remained unpaid on the judgment of the plaintiff.
On November 26, 1957, Daisy B. aind Charles Link filed a motion to quash the execution and to set aside the sheriff’s sale for' the reason that they were, at the time of the levy of the execution and sale of the real estate, the fee title owners of record thereof; that the decree of divorce did not provide that the installments for child support or plaintiff’s attorney’s fees were a lien upon the defendant’s real estate and the defendant’s personal obligation to pay the child support installments did not impress his property with a trust or otherwise limit his right to convey the real estate, and that they were not given notice of the levy of execution. .
Prior to the hearing of the motion to quash the execution and set aside the sheriff’s sale, Claude L. Higgins and his wife conveyed by quitclaim deed the property purchased at the sheriff’s sale to plaintiff’s counsel of record.
Briefs were submitted and the motion argued by counsel for both parties, following which and on July 10, 1958, the district court ordered that the execution levied on the real estate be quashed, and the sheriff’s sale be set aside and held for naught. Hence, this appeal.
It is noted that the proceeds of the sale paid only the taxes due on the real estate and costs of the action; no part of the amount due- and unpaid for child support was realized; consequently, the purpose of the execution was defeated. The record does not disclose the reason the district court quashed the execution and set aside the sheriff’s sale, and plaintiff’s brief fails to enlighten this court in that respect. Error is never presumed, and it is encumbent upon the party complaining to indicate wherein it was committed. (Quivira, Inc. v. Quivira Co. Inc., 173 Kan. 339, 245 P. 2d 972; Quick, Receiver v. Purcell, 179 Kan. 319, 295 P. 2d 626; Rice v. Hovey, 180 Kan. 38, 39, 299 P. 2d 45.) Since plaintiff has not made it to affirmatively appear that the-district court erred in quashing the execution and setting aside the sheriff’s sale, it follows that the judgment must be affirmed.
This opinion is not to be construed as any indication or inference that this court is departing from the well-established rule that due and unpaid child support installments decreed in a divorce action for the support and education of minor children of a marriage be come final judgments and a lien upon the real estate of the debtor father as of the date they become due, in the same manner and to the same extent as other judgments of courts of record of this state (G. S. 1949, 60-3126; Sharp v. Sharp, 154 Kan. 175, 177, 117 P. 2d 561; McKee v. McKee, 154 Kan. 340, 118 P. 2d 544; Haynes v. Haynes, 168 Kan. 219, 223, 212 P. 2d 312; Andrews v. Andrews, 171 Kan. 616, 617, 237 P. 2d 418; Peters v. Weher, 175 Kan. 838, 267 P. 2d 481; Ortiz v. Ortiz, 180 Kan. 334, 338, 304 P. 2d 490; Edwards v. Edwards, 182 Kan. 737, 744, 745, 324 P. 2d 150), and may be collected in the same manner as other judgments. See, Hurd v. Hixon & Co., 27 Kan. 722, 727; Butler v. Craig, 29 Kan. 205, and Bank v. Backus, 108 Kan. 779, 196 Pac, 1074. Furthermore, when payment of child support is ordered to be made in installments, a final judgment results as each installment becomes due and unpaid, or, so many of them as may be due and unpaid at any one time may be determined to be the total judgment by a simple mathematical calculation. It is unnecessary for a court to reduce due and unpaid installments to a lump-sum judgment before each of such judgments, or a total of them, may be enforced.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Owsley, J.:
State Farm Fire and Casualty Company insured a dwelling owned by James L. Kelly against loss by fire. David and Carol Homback occupied the residence as tenants of Kelly. On November 18, 1971, a fire occurred at the residence and State Farm was obligated under the policy to pay for the damage in the amount of $3,650.54.
State Farm, acting as subrogee of the rights of Kelly, sued the Horobacks, contending the fire and damage was a direct result of their negligence. A jury 'trial resulted in a verdict in favor of State Farm. The Horobacks moved for a new trial based on the failure of the trial court to discharge seven prospective jurors who were policyholders of State Farm and the injection of liability insurance into' the case. The trial court denied the motion and the Hombacks appeal.
Refore reaching the merits of this appeal, we should respond to an argument made by State Farm that various proceedings material to the appeal were not recorded at the trial. Specifically, the voir dire examination was not recorded by the court reporter and there was also an unrecorded communication during the trial when the attorneys approached the bench to discuss the cross-examination of a witness. No explanation is offered by either party for the failure to record these proceedings. The content of both proceedings is essential to a proper determination of the issues. For purposes of this appeal, and pursuant to' Ride 6 (m) of the Supreme Court of Kansas, the Hombacks submitted to the trial court for approval a statement of material proceedings not recorded by the court reporter. After objections and corrections by State Farm, the trial oourt filed a statement concerning these unrecorded proceedings which was made part of the record on appeal.
Supreme Court Rule 6 (m) (214 Kan. xxv) provides for the following procedure on appeal when no stenographic report was made:
“In, the event no stenographic report of the evidence or proceedings at a hearing or trial was made, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection, for use instead of a stenographic transcript. This statement shall be served on the appellee who may serve objections or propose amendments thereto within ten (10) days after service upon him. Thereupon, the statement, with objections or proposed amendments, shall be submitted to the judge of the district court for settlement and approval and as settled and approved shall be included in the record on appeal.”
State Farm contends that under the circumstances of this case anything included in the record which was not reported by the court reporter is improperly before this court. It points out there was a court reporter present and either party could have made a record of the proceedings. Although. State Farm acknowledges a literal reading of Rule 6 (m) would appear to permit this procedure, it argues the rule was promulgated in order to allow the formation of a record only when the absence, death or disability of a reporter, or the loss of the reporter’s notes, made it impossible to form a record of the proceedings in the usual manner.
We cannot agree with State Farm on this point. On its face, Rule 6 (m) evidences no such limitation and we see no justification for reading one into' it. Rule 6 (m) was adopted by this court to afford an appellant the opportunity to indude in the record a statement of the evidence or proceedings when, for one reason or another, no stenographic report was made. This procedure is subject to the discretion of the trial court and is properly denied when an abuse or bad faith on the part of the appellant is shown. It is not necessary, however, for the appellant to show that it was impossible for a stenographic report to be made.
Here, there is no allegation of bad faith on the part of the Horn-backs in failing to record the proceedings in question. Pursuant to Rule 6 (m), they submitted to the trial court their version of the material proceedings not recorded. State Farm’s objections and corrections were likewise submitted to the trial court. Based on these statements, as well as its own recollections, the trial court approved a final version of the proceedings which was included in the record. We find no abuse of discretion.
The Hornbacks’ first point on appeal relates to the trial court’s failure to excuse seven veniremen who were then policyholders of State Farm. Their statement of material proceedings not recorded by the court reporter, hereinbefore determined to be properly included in the record, indicates that during the voir dire examination seven members of the panel of eighteen prospective jurors stated they were policyholders of State Farm. Some of the prospective jurors had insurance coverage on family motor vehicles, whereas others stated they had coverage on both residences and automobiles. Prior to the final selection of the jury, the Hornbacks moved the court for an order striking from the panel of prospective jurors the seven State Farm policyholders. The motion was overruled by the trial court. Three State Farm policyholders were removed from the panel by peremptory challenges — two by the Hornbacks and one by State Farm. Thereafter, four State Farm policyholders were selected as members of the jury.
The Hornbacks contend the trial court’s action in refusing to sustain their challenge for cause denied them a fair trial and constitutes reversible error. It is a universally accepted rule of law that a litigant in a civil action tried by a jury is entitled to a fair and impartial jury, and error in overruling a challenge to a juror will be ground for reversal where a party is prejudiced thereby. (47 Am. Jur. 2d, Jury, § 267, p. 844; 50 C. J. S., Juries, § 208, p. 944.)
Challenges for cause are statutorily prescribed in K. S. A. 1974 Supp. 60-247 (b), which provides that all challenges for cause or favor, whether to the array or panel or to individual jurors, shall be determined by the court. We have stated that the provisions o£ 60-247 (b) contemplate all challenges for cause of prospective jurors to be determined by the trial judge in the exercise of his sound discretion, and the trial court’s determination will not be disturbed unless it appears it abused its discretion. (Ridglea, Inc. v. Unified School District, 206 Kan. 111, 476 P. 2d 601; Parnell v. Security Elevator Co., 174 Kan. 643, 258 P. 2d 288.)
Neither party has been able to find any cases from this state which are factually in point with the instant case, and our research has likewise failed to reveal any Kansas cases in which the jurors were policyholders. In Ridglea, sixteen of the eighteen prospective jurors were taxpayers of the school district that brought suit. We held that fact alone did not absolutely disqualify them from serving as jurors. Our reasoning was that the interest of a taxpayer is too remote and too minute to overbalance his innate sense of justice and fairness to all parties concerned. This was a proper matter for the discretion of the trial court and under the circumstances no abuse of discretion was shown.
In support of their position, the Hombacks cite four cases from other jurisdictions. Three of the cases, Chestnut v. Ford Motor Company, 445 F. 2d 967 (4th Cir. 1971); Texas Power & Light Company v. Adams, 404 S. W. 2d 930 (Tex. Civ. App. 1966); and Rogers v. McKinley, 52 Ga. App. 161, 182 S. E. 805, are distinguishable from the present case in that they involved jurors who were stockholders. As stockholders, they would have a definite pecuniary interest in the outcome of the litigation. In the instant case there has been no showing by the Hombacks that the policies were assessable or that the policyholders’ pecuniary interest might be affected by the result of the trial.
The fourth case cited by the Hombacks is Kendall v. Prudential Life Insurance Co. of America, 319 S. W. 2d 1 (Mo. App. 1958). This was an action brought against Prudential on a life insurance policy, and on voir dire it was discovered that four of the veniremen were policyholders in the defendant mutual insurance company. The trial court overruled the plaintiff’s challenge for cause and on appeal it was held to be error. The Hombacks overlooked the fact this case was later reversed by the Missouri Supreme Court in Kendall v. Prudential Insurance Co. of America, 327 S. W. 2d 174 (Mo. 1959). The failure of the trial court to sustain the plaintiff’s challenge for cause was upheld as a proper exercise of discretion. The court said:
“ ‘It is fundamental that jurors should be thoroughly impartial as between the parties. The right to unbiased and unprejudiced jurors is an inseparable and inalienable part of the right to a trial by jury guaranteed by the Constitution. 31 Am. Jur. 148, Sec. 171; see also 50 C. J. S. Juries § 125, p. 847. . . . Such bias, inferred from interest, is also the basis for disqualification of members of a mutual insurance company, liable to be assessed to pay losses incurred. . . . There is no showing or claim in this case that the challenged veniremen had assessable policies or that any policies of defendant were assessable. Thus we do not have here a situation like municipal taxpayers or assessable policyholders . . . because these veniremen could not be required to contribute any amount to the payment of a judgment for plaintiff. Furthermore, there was no showing as to what kind of policies these veniremen had, whether they were entitled to any dividends or even paid premiums. . . .
“While we agree that an employee or agent of a defendant ... is subject to challenge for cause, we also agree with the indication made in Barb v. Farmers Insurance Exchange, supra, that a challenge for cause is not required to be sustained as to every kind of policyholder under all circumstances. In view of modem widespread use of all kinds of insurance, such a rule would be unreasonable at least as to those with nonassessable policies or those who do not participate in policy dividends. . . .” (pp. 177, 178.)
We concur with these statements of the Missouri court, especially the stated rule that a challenge for cause is not required to be sustained as to every kind of policyholder under all circumstances. In accord with the directives of K. S. A. 60-247 (b) this is a matter for the discretion of the trial court and we cannot say as a matter of law that holders of nonassessable policies are disqualified from sitting on a jury. For further expressions of this same view see Kanzenbach v. S. C. Johnson & Son, Inc., 273 Wis. 621, 79 N. W. 2d 249; Mellinger v. Prudential Ins. Co., 322 Mich. 596, 34 N. W. 2d 450; and Morris v. Duker, 414 S. W. 2d 77 (Mo. 1967).
Examining the record in light of these principles, we hold the trial court did not abuse its discretion in permitting the four policyholders to sit on the jury. There was no showing that any of these policies were assessable or that the outcome of the suit would affect their pecuniary interest as policyholders.
The other claim of error is that the trial court should have declared a mistrial or granted a new trial when the existence of their liability insurance coverage was improperly injeoted into the case. As previously noted, State Farm’s prinicpal allegation in the trial court was that the fire at the insured premises was a result of the negligence of the Hombacks. In order to show the negligence of the Hombacks, State Farm called two witnesses whose testimony was to the effect the fire originated in the kitchen and was possibly attributable to burning wax fumes from Mrs. Homback’s candle-making.
To refute this evidence of negligence, the Hornbacks called Ray Ryan as a witness on their behalf. Ryan testified on direct examination that he was an insurance agent and that he sold the Hornbacks an insurance policy. He further stated he examined the burned premises and in his opinion the fire was caused by a possible wiring short.
Prior to cross-examination of the witness, both attorneys approached the bench, and State Farm’s counsel informed the court he intended to question Ryan concerning his appearance at the fire and whether he was an agent of Travelers Insurance Company. Counsel for the Hornbacks objected to the introduction of any testimony relating to liability insurance. The trial court then ruled that Ryan could be asked whether he was representing Travelers at the time he made the investigation on the theory this was proper evidence to show interest or bias on the part of the witness.
Based on the trial court’s ruling, counsel for State Farm asked Ryan the following questions:
“Q. What insurance company were you there representing?
“A. I was representing the Travelers Insurance Company.
“Q- And you were carrying insurance on Mr. and Mrs. Homback’s property?
“A. Yes, sir.
“Q. Now, Mr. Ryan, it is true, isn’t it, that the Travelers Insurance Company not only insured the personal property owned by the Hornbacks but that you also carried liability insurance covering this loss?
“A. That is included in the coverage.
“Q. So that if any judgment is rendered against the Hornbacks, the Travelers would be required to pay that judgment?
“A. Regarding the liability?
“Q. Yes.
“A. Yes.”
We have held as a general rule that the deliberate injection of liability insurance coverage by the plaintiff into a negligence lawsuit is inherently prejudicial and is ground for mistrial. (Alcaraz v. Welch, 205 Kan. 163, 468 P. 2d 185; Bott v. Wendler,, 203 Kan. 212, 453 P. 2d 100.) Justification for such a strict mle is founded in the belief that such evidence is usually irrelevant to any of the issues in the case and it may operate to unduly influence the jurors in their verdict. We have recognized, however, that the foregoing rule is qualified by a number of exceptions. One of the exceptions was illustrated in Dirks v. Gates, 182 Kan. 581, 322 P. 2d 750. We stated:
“An order declaring a mistrial is not proper by reason of the mention of the word insurance in the evidence offered by a plaintiff where prior thereto the defendant, for purposes of impeachment, introduces and cross-examines in regard to written statements made by witnesses for plaintiff to an adjuster for the liability insurance carrier of the defendant.” (Syl. ¶ 4.)
In the instant case, the trial court allowed the questioning of witness Ryan concerning the Hombacks’ insurance for the express purpose of showing interest or bias of the witness in testifying as to his opinion of the cause of the fire. We approve the trial court’s action.
We hold it is not error to disclose the existence of a liability insurance policy covering the occupants of a dwelling damaged by fire for the.purpose of showing interest or bias of a witness-insurance agent who sold the policy and who testified it was his opinion the fire was caused by an act not covered by the policy.
Affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Foth, C.:
This action arose out of the fire bombing of the Gentry Shop, a Wichita clothing establishment, in the early morning hours of August 10, 1968. Plaintiffs are three insurance companies which had issued fire policies on the establishment and who paid the owner an aggregate of $141,748.01 for the loss sustained. As subrogees they brought this action to recoup the loss from the City of Wichita, the Wichita chief of police, the assistant chief of police, and Detective George Lux. Their theory of liability, as set forth in the pre-trial order, was:
“The plaintiffs contend that they are entitled to recover under and by virtue of K. S. A. 12-203 and 12-204, and under the provisions of K. S. A. 21-1001 and 21-1002, and further contend that said defendants are required to respond, regardless of whether or not said actions could have been prevented with the facilities available.”
K. S. A. 1974 Supp. 12-203 and 12-204 are our present “mob” statutes; K. S. A. 21-1001 and 21-1002 (since repealed) prohibited unlawful assemblies.
A motion for summary judgment was sustained in favor of each of the individual defendants and the case went to trial before a jury against the city alone. The jury verdict was in favor of the city, and plaintiffs have appealed. As to the individual defendants, plaintiffs claim error only in the summaiy judgment for Detective Lux, so that he and the city are the two appellees.
The Gentry Shop is located at 17th and Holyoke, in northeast Wichita near Wichita state university. Across the street is a Peter Pan ice cream store. In early August, 1968, there had been some degree of racial turbulence in Wichita punctuated by an occasional fire bombing. When Detective Lux went on duty around 6:00 or 7:00 o’clock the evening of August 9, his lieutenant advised him “there had been some problems with some young black males at the Peter Pan Store, that they had made a comment that they would come back and bum it down.”
Lux, having no particular assignment as a detective that evening, patrolled the northeast section of town. At about 11:00 p. m. he stationed himself in his car on Fairmount (a block from Holyoke) just off 17th Street, where he could observe the Peter Pan store without being seen. From his vantage point he could survey the intersection of 17th and Holyoke and also see the Gentry Shop. He stayed there for about two hours although, he said, “Several times I was ready to pull off, go get a cup of coffee, however I just stuck around. But there was no activity that called, that needed a detective there.”
About 1:00 a. m., as Lux continued his vigil, he saw two cars come from the west on 17th and turn south on Fairmount. One was a two-tone green Dodge, the other a small white compact. They were traveling at a normal speed and doing nothing unusual. A few minutes later he observed four black males come from the south on Holyoke to the intersection of 17th. Three went into an L-shaped recess where the Gentry Shop was, and one stayed on the sidewalk. They were not carrying anything Lux could see, but his suspicions were apparently aroused because he engaged in prompt action. In his words:
“I started, to pull out; I was .attempting to get on the radio, on the air, to notify the dispatcher to send another car up into the area. As I started moving, I saw all four run. I then saw a bright red flare. Pulled on down to tire intersection of Holyoke. I did see a front window in this area was burning. I went south on Holyoke and to 16th Street. I started to stop and talk with several white males that was right around the corner on 16th off of Holyoke to see if they had seen any black males. About that time I did see the Dodge I had seen earlier pull off of Fairmount onto 16th going east. I then gave chase."
He chased the Dodge some twenty to thirty blocks before stopping it and apprehending four of its five occupants. The fifth, who ran away, was apprehended later. Of the five, only one was over eighteen years of age. Two were fifteen, and two were sixteen or seventeen. All were black. Three of the four who were apprehended by Lux gave tape recorded statements later that morning to Lux and a fire department investigator. Transcripts of these statements were admitted into evidence as plaintiffs’ exhibits.
In their statements the three young men told of being at a party earlier that evening at 18th and Hydraulic in Wichita. (There is no evidence that the police had any knowledge of this party until these statements were taken.) There were thirty to forty people of both sexes there, and the idea came up to set fire to several businesses with Molotov cocktails. Four businesses were mentioned, including the Gentry Shop.
Acting on this suggestion five party-goers departed in the green Dodge. They were followed by two others in a white compact Pontiac. They first secured two soda pop bottles from the home of one of the boys, and then sought gasoline. From the hose of a pump at a station closed for the night they drained enough gasoline to fill one bottle. A strip tom from one of their shirts served as a fuse. Thus equipped they proceeded to' the Gentry Shop, with the results previously described.
The two occupants of the white Pontiac had driven away before the fire bombing and took no active part in it. It was stipulated in the pre-trial order that “the actual fire bombing and loss was participated in by less than ten (10) persons, but that said persons had previous thereto been at a party in the 1800 block of North Hydraulic Street, Wichita, Sedgwick County, Kansas, attended by more than ten (10) persons.”
The principal underlying issue in this case is whether the facts set forth above establish a submissible case of liability against either the city or Detective Lux. We hold that they do not.
In so holding we proceed on plaintiffs’ theory below that this is purely a statutory action, as set forth in the pre-trial order quoted above. That order supersedes the pleadings and controls the subsequent course of the action. K. S. A. 60-216; Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 522 P. 2d 401. There was no challenge to that order either below or here, and no effort was made to have it amended. We note that in discussing the court’s proposed instruction plaintiffs’ counsel was vehement in his assertion that “There was nothing in my opening statement about negligence. There was nothing in my opening statement about misconduct. There was in my opening statement, statements about what the police failed to do, which would be the same thing, and Can be argued under the statutory mob definition that you give herein later.” Hence we are not called upon to determine questions of common law liability for negligence or official misconduct, or to reconsider the issue of governmental immunity.
We turn, then to the “statutory mob definition” which controls the city’s liability. The pertinent statutes are K. S. A. 1974 Supp. 12-203 and 12-204:
“A city shall be liable in damages for injuries to persons or property caused by the action of a mob within the corporate limits of the city if the city police or other proper authorities of the city have not exercised reasonable care or diligence in the prevention or suppression of such a mob. The city shall have all of the defenses in such action that are available to parties in tort actions.”
“As used in this act, the word ‘mob’ shall mean an assemblage of ten (10) or more persons intent on unlawful violence either to persons or property.”
These statutes were enacted in 1967 (Laws 1967, ch. 80) and replaced former K. S. A. 12-201 and 12-202. The prior statutes had been on the books since territorial days, with only slight modifications; their history is traced in the leading case of Koska v. Kansas City, 123 Kan. 362, 255 Pac. 57. They imposed absolute liability on a city for damages caused by a mob, although some showing in mitigation of damages was permitted. There was no statutory definition of the term “mob” itself, and the Koska court resolved this by finding that the term encompassed the common dictionary definitions. These included:
“A French term, imported into the English language during the reign of Charles II. The word is not strictly a legal term, but a vernacular word, descriptive of a large and aggravated riot. It is variously defined as an assemblage of many people acting in a tumultuous and riotous manner, calculated to put good citizens in fear and endanger their persons .and property; a crowd excited to some violent or wrongful act; a crowd of persons gathered for mischief or attack; a disorderly crowd; the, or a, disorderly element of the populace; a disorderly or a riotous gathering or assembly; a promiscuous assemblage of rough, riotous persons; a promiscuous multitude of rioters; a rabble; .a throng, a riotous assemblage; a tumultuous rout or rabble; a turbulent or lawless crowd; an unorganized assemblage of many persons intent on unlawful violence either to persons or property. The word ‘mob,’ in legal use, is practically synonymous with ‘riot,’ but the latter is the more correct term. ‘Mob’ also has been held to be practically synonymous with ‘riotous assembly.’” (40 C. J. 1231.)
“A tumultuous rout or revel; a crowd excited to some violent or unlawful act. The word in legal use is practically synonymous with riot, but the latter is the more correct term.” (Bouvier’s Law Dictionary.)
“The disorderly and riotous part of the population, the roughs, the rabble; an assemblage of the rabble; a tumultuous crowd bent on, or liable to be incited to, acts of lawlessness and outrage.” (Oxford English Dictionary.)
“A riotous assemblage; a crowd of persons gathered for mischief or attack; a promiscuous multitude of rioters.” (Century Dictionary.)
“The difference between a rebellious mob and a common mob is that, the first is high treason, the latter a riot or a felony.” (Stroud’s Judicial Dictionary.) (p. 365.)
The same idea has been reiterated in Maus v. City of Salina, 154 Kan. 38, 114 P. 2d 808; Hanners v. Kansas City, 154 Kan. 324, 118 P. 2d 532; and Lee v. City of Kansas City, 175 Kan. 729, 267 P. 2d 931.
Our present statute, of course, does contain a statutory definition. The question arises whether it was meant to convey any different meaning than that ascribed to the word in our previous cases. In Cherryvale v. Hawman, 80 Kan. 170, 101 Pac. 994, the jury was instructed that “a mob is an unorganized assemblage of many persons intent on unlawful violence, either to persons or property.” The chief difference between this definition and our present 12-204 is that the statute requires “ten (10) or more,” rather than merely “many,” persons for an assemblage to constitute a mob. The court in that case said that “This definition, which appears to have originated in Abbott’s Law Dictionary, is substantially that usually given by the courts and textwriters.” (p. 171.) The court held that the instruction was adequate to carry with it the implication of “riot,” which is an element found essential to a mob in the later cases cited above.
In the present case the trial court, after quoting section 12-203, in instruction No. 8 gave the jury verbatim the text of 12-204. In instruction No. 9 it gave additional definitions of a mob containing the elements of riot and disorderliness, paralleling those found in Koska, and quoted above. It concluded its instruction No. 9 by saying:
“Before you can find for the plaintiff you first must find that the gathering or party on North Hydraulic did constitute a mob as above described.”
Plaintiffs complain of this portion of the instruction because they say it required the jury to find a mob “as above described,” i. e., as described in instruction No. 9. It would have been sufficient, they argue, for the jury to have found the existence of a mob as defined in the statute, as set out in instruction No. 8. They point to questions submitted to the court by the jury after it had retired to deliberate asking whether No. 8 was complete, whether No. 8 and No. 9 should be read together, or whether one took precedence over the other. These questions, they say, indicate that the jury was misled and confused. The court declined to give any additional instructions.
We find no reversible error in the instructions for two reasons. First, even if the jury construed the instructions as plaintiffs say they might have, we believe they would have been correctly instructed. We believe that an element of riotous or disorderly behavior, causing a disturbance of the public peace, is a necessary ingredient of a “mob” as defined in K. S. A. 1974 Supp. 12-204. That was the thrust of instruction No. 9.
The requirement of such an element is well established in the cases cited. The court has consistently rejected the idea that the mere commission of a crime of violence is mob action, even if perpetrated by a number of persons exceeding the statutory minimum for a mob. In Koska, at a time when three persons constituted a statutory “mob,” four men broke into plaintiffs house, ransacked it and assaulted and abused her. There was no mob action found, the court saying:
“In any event it seems clear the statute was never intended to create a civil liability on cities for what may be spoken of in a general way as ordinary crimes. We do not mean by this that mobs do not commit crimes — they frequently, perhaps usually, do commit crimes — but it is the mass action of the multitude, as distinct from the acts of a few bent on a particular mischief.” (123 Kan. at 367.)
In Maus v. City of Salina, supra, the court found no- mob action where six men (the statute then required five) forced their way into plaintiff’s house, assaulted and beat him and pilfered and ransacked all the rooms in the house. In so holding the court found that it could not distinguish the case from Seigler v. Kansas City, 131 Kan. 504, 292 Pac. 937, where plaintiff was permitted to recover for a beating administered by a number of men in a garage. The court compared Seigler to Koska and said:
“. . . In the Seigler opinion the Koska case was distinguished on the ground that in the latter it was not shown that there was ‘any excitement or tumult.’ The argument is wholly unconvincing. Even on the mere basis of ‘excitement’ and ‘tumult’ the assault on the woman in the house would seem to measure up very well with the assault on the man in the garage.’ Carried to its logical conclusion, the holding in the Seigler case would impose upon cities a liability to pay damages for the commission of almost any crime participated in by as many as five men, even though committed without the knowledge of city officials or of private citizens generally and without any accompanying public disturbance that might be said to impute such knowledge to them. Such an interpretation of the legislative intent is wholly unreasonable and ignores the sound principles upon which such statutes are bottomed. We regard the holding of the Seigler case as untenable, and that case is hereby overruled.” (154 Kan. at 43.)
In discussing the legislative history of the act the court in Mans noted of the amendments made until that time that "The effect of the amendments has been to further limit liability — the principal changes being to raise from three to five the number of persons necessary to constitute a mob, and to broaden the scope of matters that may be shown in mitigation of damages.” (Id., p. 41.) The thrust of the 1967 amendment (by substitution) as we see it was to limit liability even further. The minimum number was raised from five to ten, and instead of absolute liability tempered by mitigation of damages we now have a “reasonable care or diligence” standard, with all defenses available to the city that are available to the defendant in any other tort action. In view of this trend we cannot believe there was any legislative intent in 1967 to impose liability on the city for crimes committed by persons who are not part of a mob, as that term had been previously defined, even if ten or more persons do band together to commit the crime.
Reading the 1967 statute in its entirety and construing its two sections together reinforces our conclusion. Section 12-203, the operative section, creates liability for damages “caused by the action of a mob.” It does not say, “caused by the aotion of a mob or any part thereof.” Likewise, there is liability only if the city fails to use reasonable care and diligence “in the prevention or suppression of such a mob.” It does not say “in the prevention of any crime.” We think it clear that our present statute, like its predecessor, was aimed at “the mass action of the multitude, as distinct from the acts of a few bent on a particular mischief.” (Koska, supra.)
Which brings us to the second reason there was no prejudicial error in the instructions. It is undisputed that there was no “mob” involved in the actual fire bombing — there were only five people there. Only the gathering at 18th and Hydraulic had enough people present to constitute a mob, assuming it met the other requirements discussed above. But the damage here was not “caused by the action of” that group, as the statute requires. It was caused by the action of only five people, even though they had been part of the larger group at one time. There was simply not the “mass action” we read the statute as requiring.
Of course, not every member of a mob must participate in the actual injury before there can be liability, but there must be some sort of mob participation. The cases cited by the plaintiffs do not hold to the contrary. In Wilkins v. City of Mineral, 109 Kan. 46, 197 Pac. 863, the plaintiff was assaulted on the street and beaten by only one man, but there were twenty-five or thirty onlookers standing by and shouting encouragement to the assailant. To support plaintiff’s judgment this court found that “there was ample evidence to support a finding that a considerable number of the onlookers were virtual participants in the assault, that they knew it was to' take place, encouraged the assailant, and presumably by their attitude restrained the interference of any who' might have had a disposition to come to the assistance of the plaintiff.” (p. 47.) And in Yalenezian v. Boston, 238 Mass. 538, 131 N. E. 220, there was “ a large crowd of people ... in the street in the vicinity of the plaintiff’s store,’ shouting, shooting dice for money, singing, dancing and fighting to a degree that a witness testified that ‘things were terrible there, and we were afraid to go through the street.’ ” (238 Mass, at 542.) The Massachusetts act required twelve or more persons, “riotously or tumultuously assembled.” The court found there was a riot, saying:
“. . . There w.as evidence that more than twelve persons were tumultuously assembled; there was evidence that from the crowd twelve or more persons broke into and entered the stores of the plaintiffs in the night time; there was evidence that fifteen or twenty persons with a common purpose of larceny entered the stores and carried away from the stores personal property, and by concert of action gave aid, assistance and countenance to each other.” (Id., p. 543.)
In each case, it will be noted, the mob was present and its immediate influence was being exerted on those members who committed the injury. (Additionally, in the Massachusetts case the number of persons doing the looting was itself sufficient to constitute a statutory mob.) That is not the case here.
Here, in our opinion, even an indisputable finding that there had been a “mob” at 18th and Hydraulic would not have supported a finding of liability for the acts of these few committed at least a mile away and some period of time after they separated themselves from the “mob.” Had the entire party, or at least ten of them, proceeded en masse to the Gentry Shop we would have an entirely different situation.
The result is that the city’s motion for judgment at the close of plaintiffs’ evidence should have been sustained. The judgment below was correct, and it will be sustained even if arrived at by a process which might be erroneous. K. S. A. 60-2105. And cf., Wallace v. Magie, 214 Kan. 481, 522 P. 2d 989; City of Hutchinson v. Hutchinson, Office of State Employment Service, 213 Kan. 399, 517 P. 2d 117. Since the issue of a mob at 18th and Hydraulic should not have been submitted to the jury, any errors there might have been in the instructions would be moot.
Plaintiffs also claimed liability under former K. S. A. 21-1001 and 21-1002. The first of these, the “unlawful assembly” statute, made it unlawful for three or more persons to assemble with the intent to do any unlawful act against the person or property of another by force and violence, if they made “any movement or preparation therefor.” The second made it the duty of any judge or peace officer who actually saw anyone committing the offense proscribed by 21-1001 to command those unlawfully assembled to disperse. To accomplish the dispersal the judge or peace officer was authorized to call upon the citizenry for assistance, and they were required to furnish it.
As to the city, the trial court took any claim under these statutes away from the jury at the close of the evidence. In so doing it was clearly right. Both Maus and Koska unequivocally state that the unlawful assembly statutes (21-1001 et seq.) in the Crimes Act have nothing to do with a city’s liability for mob action, and are not to be read into the mob statute. See Syl. ¶ 2 of each case. And there was nothing in the unlawful assembly statutes themselves which would remotely suggest they were intended to impose any civil liability.
As to Detective Lux, plaintiffs argue that he breached his duty under 21-1002 to order the dispersal of the four boys in front of the Gentry Shop, and that such a breach of a statutory duty made him personally liable for the ensuing damage. It was therefore error, they say, to grant his motion for summary judgment. There is no merit to this contention.
The statute amounts to a codification of the common law duty of a peace officer to preserve the peace. The duty owed is to the public at large, and not to any particular individual. For the breach of such duty an officer is answerable only to the public acting through its official representatives, and not to any particular individual. Speaking of a sheriff, the original conservator of the peace under the common law, the United States Supreme Court said in 1856:
“It is an undisputed principle of the common law, that for a breach of a public duty, an officer is punishable by indictment; but where he acts ministerially, and is bound to render certain services to individuals, for a compen sation in fees or salary, he is liable for acts of misfeasance or nonfeasance to the party who is injured by them.
“The powers and duties of conservator of the peace exercised by the sheriff are not strictly judicial; but he may be said to act as the chief magistrate of his county, wielding the executive power for the preservation of the public peace. It is a public duty, for neglect of which he is amenable to the public, and punishable by indictment only.
“The history of the law for centuries proves this to be the case. Actions against the sheriff for a breach of his ministerial duties in the execution of process are to be found in almost every book of reports. But no instance can be found where a civil action has been sustained against him, for his default or misbehavior as conservator of the peace, by those who have suffered injury to their property or persons through the violence of mobs, riots, or insurrections.” (South et al. v. State of Maryland, Use of Pottle., 59 U. S. [18 How.] 396, 402-3, 15 L. Ed. 433. Emphasis added.)
The rule appears to have been universally followed, in the absence of a constitutional or statutory provision imposing liability. See Anno., Police-Personal Liability, 41 A. L. R. 3d 700, and especially § 4, “Injuries from riots and mob violence.”
Our own rule is that “executive officers are not liable for errors in the performance of duties involving discretion and judgment, in the absence of malice, oppression in office or willful misconduct.” (Hicks v. Davis, 100 Kan. 4, 163 Pac. 799, Syl. See also, Evans v. Marsh, 158 Kan. 43, 145 P. 2d 140; City of Hutchinson v. Hutchinson, Office of State Employment Service, supra. And cf., Gardner v. McDowell, 202 Kan. 705, 451 P. 2d 501, where the element of “wantonness” was included.) No malice, oppression, wantonness or willful misconduct was asserted against this policeman. It follows that on the issue of liability under the statutes, as framed in the pretrial order, no cause of action was stated against Detective Lux and he was properly dismissed from the suit.
One final contention of plaintiffs deserves mention. They complain that the trial court refused to order the city, in response to interrogatories, to furnish the names, addresses and telephone numbers of all police officers and reserve police officers employed by the city on the date of the fire; and also the names, addresses and telephone numbers of all such officers who were on duty eight hours before and five hours after the fire. This information, they say, would have permitted them through pretrial discovery to develop fully the exact extent of the police department’s advance knowledge of the fire bombing. Two officers at the scene were reported to have told a newspaper reporter that the department knew either the Peter Pan store or the Gentry Shop was to be a target.
The city responds by pointing out that in its answers to plaintiffs’ interrogatories it did furnish the names of the six officers and fifteen firemen who were at the scene at the time of the fire and within six hours afterwards, and that plaintiffs nevertheless took not a single deposition. This would seem to be a sufficient answer. If plaintiffs really sought the information they now claim was vital, taking the depositions of the officers on the scene who were the source of the original report would seem to have been an appropriate way to go after it and the logical first step. We cannot find prejudice from the failure to furnish more names when plaintiffs failed to utilize those they had. The control of discovery is entrusted to the discretion of the trial court. K. S. A. 1974 Supp. 60-237 (a) (2) and 60-226 (C); Tilley v. International Harvester Co., 208 Kan. 75, 490 P. 2d 392, Syl. ¶¶ 2 and 3. We find no abuse of that discretion here.
The judgment is affirmed.
APPROVED BY THE COURT.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fontron, J.:
The defendant, William J. Anicker, and Bertha Anicker were married in July of 1968. On May 15, 1969, Bertha was dead by strangulation and the defendant stood charged with second-degree murder in connection with her demise. He was convicted of first-degree manslaughter and was sentenced as a second offender to a term of not less than ten nor more than forty-two years. This appeal stems from that judgment.
Bertha’s death occurred in the couple’s own apartment and there were no outside eyewitnesses to the homicide of which anyone has knowledge. All this court knows of the circumstances attending the crime comes from a synopsis of the defendant’s testimony which is contained in his brief. The state agrees the summary is substantially correct. From his brief we learn the defendant testified he and his wife commenced drinking during the evening of May 14, and resumed their drinking the following morning till around noon, at which time defendant left to buy some cigarettes. On returning, he went to sleep next to his wife around 1:30 or 2 in the afternoon. About three hours later he awoke and found his wife lying dead on the floor beside tire bed. He then called a doctor, an ambulance and the police. He testified he did not know whether the apartment door was locked following his return from buying the cigarettes. Subsequently, he went to the police station and gave a statement. This statement is not set out in the record.
The defendant’s first three points are interrelated. They go to the admission into evidence of prior acts of violence against the deceased, and the court’s instruction with respect thereto. The challenged testimony comes from Paul Brown, a nephew of Bertha by marriage, and from a cousin by marriage, Blondina Abels. Mr. Brown testified that he stood up for the couple when they were married; that he had seen the deceased four or five times at his house since the marriage, at which times she had black eyes and was bruised all over; that he remonstrated with the defendant, who said he would get to drinking and lose his temper and take it out on her; that ten or fifteen days before Bertha’s death he talked to the defendant again, this time at the couple’s apartment, and told defendant he saw no reason for Bertha being beaten and bruised like that, and defendant responded, as he had before, that he would get on the bottle and lose his temper and take it out on her.
Blondina Abels, the cousin, told of Bertha calling her sometime in November to come and get her; that when she arrived, the TV was broken and Bertha had a black and blue spot on her face and her eye was beginning to swell; Bertha was all packed and ready to go when Anicker came out in his shorts and was raving mad; she had never heard a man talk to a woman the way he did; that he threatened to kill Bertha, using profanity, and the two of them then left.
In giving its instructions, the trial court told the jury that the evidence which had been introduced tending to1 show that on prior occasions the defendant assaulted and beat the deceased, was to be considered only as bearing on the question of defendant’s mo tive, opportunity, intent, knowledge or absence of mistake or accident. Thus it closely followed K. S. A. 60-455.
We regard the evidence of prior violence and of the threat against the deceased as being properly admitted as relating to intent and motive. In State v. Patterson, 200 Kan. 176, 434 P. 2d 808, the defendant was charged with second-degree murder in the shooting death of his wife. Evidence of prior physical mistreatment of the deceased wife was introduced along with threats previously made by her husband to kill her. We held in that case:
“In a case of marital homicide, evidence of a discordant marital relationship, and of the defendant’s previous ill treatment of his wife, including his prior threats to kill her, is competent as bearing on the defendant’s motive and intent.” (Syl. 2.)
Not only is there evidence in this case of past physical violence on the part of the defendant, there is evidence that he threatened to kill his wife. From early times this court has held that evidence of threats by an accused against the deceased is admissible as bearing on intent and state of mind. (State v. Horne, 9 Kan. 119; State v. Stackhouse, 24 Kan. 445; State v. McKinney, 31 Kan. 570, 3 Pac. 356; State v. Demming, 79 Kan. 526, 100 Pac. 285.)
The evidence of past physical assaults and beatings was admissible also on the question of identity, another purpose for which evidence of other civil wrongs may be considered under K. S. A. 60-455. The defendant, here, had entered a plea of not guilty. He testified he went to sleep and awoke to find his wife dead. She was strangled, as it turned out, and was badly beaten and bruised. He testified he did not know whether the door was locked when he came home from buying cigarettes — thus raising the inference that someone from outside might have come in and killed his wife. Under these circumstances the question of identity was of importance, and evidence of defendant’s prior violent assaults against his wife, similar in nature to the one which caused her death, was of probative value on the issue of identity, as well as intent and motivation.
Next, it is urged the court erred in admitting gruesome pictures of the deceased. We have examined these pictures and while they certainly cannot be said to be attractive, they do not offend the sensibilities as greatly as have some others which have reached this court. The photographs were offered, so it is said, to depict the bruises on the body of the deceased and, under the circumstances of the present case, they must be said to have had some probative value. The pictures presented in this case differ from the grisly one of which we disapproved in State v. Boyd, 216 Kan. 373, 377, 532 P. 2d 1064. That photograph was taken at the autopsy and showed the corpse “cut open from chin to groin and laid out like a disembowled beef in a packing plant.” The photos here are not unduly inflammatory in our opinion and we find no prejudicial error in their admission.
Turning to the next point, the state identified and offered into evidence certain items found in Bertha’s bedroom, such as sheets, towels and items of clothing. In the offer of evidence, reference was made to bloodstains on some of the items. The prosecutor, in closing argument, referred to some of the exhibits as bloodstained. The gravamen of defendant’s fifth point is there was no direct proof they were “bloodstained” and the court erred in permitting the prosecutor so to describe them. However, no objection was interposed to the prosecutor’s argument when it was made. It is the general rule that reversible error cannot be predicated on misconduct of counsel in closing argument where no objection was made at the trial and no request was made that the jury be admonished to disregard the objectionable statements. (State v. Fleury, 203 Kan. 888, 896, 457 P. 2d 44; State v. McDermott, 202 Kan. 399, 405, 449 P. 2d 545; State v. Wyman, 198 Kan. 666, 670, 426 P. 2d 26; State v. Ralls, 213 Kan. 249, 250, 515 P. 2d 1205.)
Defendant’s final point is without merit. His complaint is directed at remarks made by the court when defense counsel inquired, prior to objecting to the admission of certain exhibits, if his objection should be made outside the hearing of the jury. The court responded, “Yes, it should be. These are matters which are necessary, members of the jury, to preserve the defendant’s rights. It is important on appeal.” It is argued the court’s response inadvertently indicated a disbelief in the defense theory and indicated a feeling on the court’s part that the defendant was guilty.
While it is a fundamental tenet of the law that the judge be scrupulously impartial in presiding at the trial of a lawsuit and that he refrain from conduct which might influence the jury in its findings, we fail to discern any prejudice in the incident of which the defendant complains. Obviously the court was making every effort to protect the defendant’s right to a fair trial and in this endeavor felt required to explain to the jury why the proceedings on the defendant’s objection would be away from the jury’s hearing. There is nothing in the remarks, so far as we can see, to suggest how the court felt the case should, or would, come out, or whether an appeal would, in fact, be taken or who might take the appeal if one were taken. It does not appear to us that the court was injudicious or that prejudicial error resulted from its remarks.
The judgment of the trial court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order appointing a receiver.
The petition, filed by plaintiff, J. K. Weber, against the defendant, Sutorious Bread Company, a Corporation, on his own behalf and purportedly on behalf of other debenture holders of such company, discloses that plaintiff is the holder of certain debenture bonds issued by the bread company as part payment for the purchase of capital stock of the company from plaintiff pursuant to an installment contract executed by the company and plaintiff on November 25, 1957; that the par value of his bonds is $3,500.00 and the total par value of the entire issue of the bonds is $125,000.00; that such bonds bear interest at a rate of four per cent per annum and are a prior obligation ahead of all classes of stock of the company in the event of liquidation or dissolution, but are subordinated to operating expenses of the company; and that such bonds are to be retired in multiples of $500.00 each from fifteen per cent of the net profits of the company each year.
Further allegations of the petition, omitting some of like import, all of which are based on the premise plaintiff has reason to believe and therefore alleges, are that the company was not operating under the management and control of its Board of Directors but that the chairman of the board, one Arnold S. Roberts, exercised exclusive control and had caused the Articles of Incorporation and By-laws of the company to be changed to the detriment of the company; and that such chairman was committing, or about to commit, divers other acts detrimental to the security of the bondholders, including attempts to secure loans on physical assets of the company, purchase of an automobile, sale of trucks and discontinuance of certain bread routes.
Other allegations of such pleading are to the effect that there is no legitimate reason for obtaining substantial loans on the physical assets of the company because its cash position is presently excellent and there is no need for additional operating capital; that a debenture bondholders’ committee should be authorized and established by the court to represent the debenture bondholders and assist the receiver in the proper operation of the company business; and that by reason of the facts alleged the chairman has wrongfully assumed possession and taken into his custody and control all of the assets of the company, to the detriment of the security of the plaintiff and the other bondholders.
In the prayer of the petition plaintiff asked for the appointment of a receiver, suggesting that Charles L. Emley was a proper person for such position. He further prayed that such receiver be authorized to take possession forthwith of all property of the company; that he be authorized to consult with the debenture bondholders’ committee in the operation of its affairs; and that the chairman of the board be restrained from exercising any control over the operátion of the company and directed forthwith to deliver to the receiver all its assets, books and records wherever located.
The petition was filed on February 27, 1958. On the same date, without having served summons or notice of any kind on defendant, the plaintiff appeared before the district court of Harvey County and after an ex parte hearing that tribunal granted him all the relief sought in the petition, including the appointment of a receiver with full authority to operate the company as a going business concern-Thereupon Emley filed his oath and bond in the sum of $25,000.00, the amount required by the court, conditioned that he would faithfully discharge his duties as receiver. Later, and still on the same day, he moved for, and was granted, an order directing the employment of certain accountants and attorneys to assist him in the performance of his duties as receiver. Still later, and on March 1,1958, Emley moved for the recognition of an already formed bondholders’ protective committee, including plaintiff as one of its members. The court granted this motion on the same day and issued an order authorizing the receiver to consult and confer with such committee and its counsel.
On March 3, 1958, after serving copies thereof on counsel for the plaintiff and counsel for the receiver, defendant filed a notice of appeal with the clerk of the district court reciting that it was appealing to this court in accord with G. S. 1949, 60-1209, from the order of the district court of Harvey County, made and entered on February 27, 1958, appointing Charles L. Emley as receiver of defendant. Along with this notice it filed its appeal bond in the sum of $25,000.00, which was approved by the clerk of such court.
The record in this case discloses that the district court made an order striking the foregoing notice of appeal from the files on the very day it was filed in the clerk’s office; that subsequently a Peremptory Writ of Mandamus was issued by this court in case No. 41,136, directing the court to rescind such order and the clerk of the district court to forthwith transmit the notice of appeal, and all other necessary appeal papers required by statute, to the clerk of this court so that defendant might be afforded appellate review of the ex parte order appointing the receiver. It may be added the trial court, as well as the clerk of the district court, promptly complied with the directions of the Peremptory Writ and that the defendant under the provisions of our statute (G. S. 1949, 60-1209 and 60-3302, Fourth) is entitled to that review.
Ordinarily what has been heretofore stated would suffice as a factual background for disposition of the issue involved under appellant’s single specification of error, charging “The Court erred in appointing a receiver for defendant corporation where no notice of the application for such appointment had been given and where the only relief asked by plaintiff against defendant corporation was that a receiver be appointed to conduct the affairs of defendant corporation and plaintiff did not give the bond mentioned in Kansas General Statutes 1949, Sec. 60-1208.” However, due to unusual circumstances, more information is required.
After the appeal reached this court the appellee filed a motion, in which Emley joined as receiver, asking for its dismissal. After a hearing this motion was denied, hence the merits of matters therein raised are no longer of consequence. Nevertheless, it is important to note, such motion establishes that after this court acquired jurisdiction of the appeal Emley actively participated as receiver and he, as well as the appellee, affirmatively asserted his right to serve, and continue to serve, in that capacity under the order from which the appeal had been perfected.
Following the ruling on the motion last mentioned, and after some delay for which this court was not responsible, the appellant, having previously filed an abstract, filed its brief with our clerk on March 12, 1959. Shortly thereafter the cause was set for hearing on Monday, June 8, 1959. No response was made by appellee, to appellant’s brief until Friday, June 5, 1959. On that date, advising the clerk they were to he considered in lieu of briefs and the right to file briefs was waived, counsel for the appellee filed eight typewritten copies of a lengthy motion, titled “No. 41,142, J. K. Weber, Appellee, vs. Sutorius Bread Company, a Corporation, Appellant” (the case at har), and “No. 41,143, J. K. Weber, Plaintiff, vs. Sutorius Bread Company, a Corporation, Defendant; Arnold S. Roberts, Respondent in .Contempt Proceedings, Appellant,” (Weber v. Sutorius Bread Company, [No. 41,143, this day decided], 185 Kan. 178, 341 P. 2d 965.)
We shall not burden our reports with the disposition made of case No. 41,143, as readers of this opinion desiring information with respect thereto may obtain it by resort to the opinion in that case.
Turning to the motion filed hy appellee, in the manner and form above indicated, it may be stated that, so far as applicable to this case, it refers to matters and things occurring, after perfection of the present appeal, in case No. 13,700, titled “J. K. Weber, Plaintiff, vs. Sutorius Bread Company, a Corporation, Defendant,” which is still pending in the district court of Harvey County. In essence, and so far as here pertinent, contentions made in such combined motion and brief are to the effect that in case No. 13,700 amended pleadings have been filed; additional parties have been made defendants; plaintiff has filed a motion asking that the March 3, 1958, receivership be terminated which, although it has not been passed upon, will doubtless be sustained by the trial court; and that by reason of such facts and circumstances the instant appeal has become moot and should be dismissed. In fact, we have been informed, through the medium of a letter from one of appellee’s counsel that, since this appeal was argued and submitted, the district court of Harvey County, on June 9, 1959, entered an order terminating the receivership in which Charles L. Emley was receiver for the reason that he is now, and for some time past has been, a nonresident of the State of Kansas
Having completed what, due to the peculiar and unusual state of the record, has been the arduous task of making the salient facts clear and understandable, we can now give attention to questions raised by the parties which, under the confronting facts and circumstances, do not appear to present any insurmountable difficulties.
Turning to the motion to dismiss appellee contends the issues involved in this appeal are moot because (1) the receiver never took physical possession of the corporate assets of the company; (2) the appeal perfected by the appellant had the effect of staying the proceedings; (3) appellee had filed a motion in the district court to terminate the receivership; and (4) the appointed receiver is now a nonresident of the state. In an approach to these contentions it must be remembered that under provisions of our statute appellant had the right to appeal from the order appointing the receiver.
G. S. 1949, 60-3302 reads:
“The supreme court may reverse, vacate or modify any of the following orders of the district court or a judge thereof or of any other court of record, except a probate court. . . . Fourth — An order appointing a receiver, or any order refusing to revoke, modify or change any order appointing a receiver, but a failure to appeal shall not prejudice tire right of the party so failing to have the action of tire trial court reviewed on an appeal taken from the final judgment in the case: . .
G. S. 1949, 60-1209, provides:
“In all cases before any court of record, in which a receiver may be appointed, or refused, die party aggrieved may, within thirty (30) days thexeafter, appeal from the order of the court, or a judge thereof, appointing or refusing to appoint, a receiver, to die supreme court, without awaiting the final determination of such cause, and in cases where a receiver shall be, or has been, appointed, upon the appellant filing an appeal bond, with sufficient surety, in such sum as may have been required of such receiver by a court or the judge thereof, conditioned for the due prosecution of such appeal and the payment of all costs or damages diat may accrue to the state, or an officer or person by reason thereof, the authority of such receiver shall be suspended until the final determination of such appeal, and if such receiver shall have taken possession of any property, real or personal, the same shall be returned and surrendered over to the appellant upon the filing and approval of said bonds . . .”
Merely to read the provisions of the section of the statute last above quoted makes it apparent appellee’s contentions, hereinabove designated (1) and (2), lack merit and cannot be upheld. To hold otherwise would mean that, in all cases where an immediate appeal has been perfected in conformity with 60-1209 from an order appointing a receiver, this court, upon the filing of a motion such as is here involved, would be required to dismiss the appeal at any stage of the proceeding and thus be deprived of the appellate review authorized by the express terms of such statute. In our opinion the legislature, in enacting 60-1209, did not contemplate any such absurd result.
It may be conceded, as appellee contends, that under our decisions (citing Dickey Oil Co. v. Wakefield, 153 Kan. 489, 111 P. 2d 1113), this court has held that when it clearly appears by reason of changed circumstances between a trial of an action and its review in this court that any judgment this court render would be unavailing as to the particular issue litigated, this court ordinarily will not consider or decide the mooted issue, whether one of law or fact. Even so it does not follow the last two contentions of appellee’s motion, identified as (3) and (4), warrant or require a dismissal of this appeal.
We are not disposed to here labor or discuss our many decisions dealing with the interesting subject of when an appeal may be dismissed on the ground the issues therein involved have become moot. It suffices to say we are cited to, and know of, no cases holding, and are not inclined to hold, an appeal has become moot and should be dismissed where — as here — a receiver has been appointed and his appointment has not been revoked by the appointing authority until after an appeal from the order making such appointment has been submitted to this court for final decision.
Moreover, and conceding the case presents many distinguishing features, we hold to the view that, when surveyed in their entirety, the facts and circumstances of the case at bar warrant application of the salutary principles announced in St. Paul Fire & Marine Ins. Co. v. Bender, 153 Kan. 752, 113 P. 2d 1062, where, in refusing to uphold a motion of similar import, this court said:
“. . . While a plaintiff with the discretionary sanction of the trial court may dismiss his action, that rule has certain obvious qualifications. Once a litigant has brought his adversary into court, and issues of law or of fact are raised or joined between them, the rights of the latter in the subject matter of the litigation are just as potent as those of the former. Being brought into court, he is entitled to have the controversy adjudicated to a finality, so that there may be an end of litigation. If that goal cannot be attained without an appellate review, and the procedural steps are properly taken to secure it, the further control of the litigation is in the appellate court, not in the trial court. Our civil code gives the right of appellate review from an order of the district court which ‘sustains or overrules a demurrer.’ (G. S. 1935, 60-3302.) That right cannot be prejudicially cut off by some strategical maneuver in the lower court. . . .” (pp. 753, 754.)
Thus we come to the all-decisive question presented by this appeal. Was the trial court’s action in appointing Charles L. Emley as receiver of the appellant company, under conditions and circumstances heretofore set forth at length, erroneous?
We do not deem it necessary to here burden our reports with decisions dealing with the validity of appointments of receivers under entirely different facts and circumstances. It is enough to say we have carefully examined all contentions advanced by the parties, as well, as the authorities cited in support thereof, and are convinced that the facts presented by the record bring this case squarely within the rule announced in Stelzner v. Iron Clad Store Co., 123 Kan. 772, 256 Pac. 818, to which we adhere, where it is held:
“It is error to appoint a receiver for a corporation on the day the action is commenced where no notice of the application for such appointment is given and where the only relief asked by the plaintiff against the defendant corporation is that the receiver be appointed to conduct the affairs of the corporation and the plaintiff does not give the bond mentioned in R. S. 60-1208 (now G. S. 1949, 60-1208).” (Syl.)
Básed on what is said and held in the case last cited, we hold that the order appealed from was erroneous and cannot be upheld. Therefore such order is reversed and set aside with directions to discharge the receiver pursuant to this court’s mandate and decree. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from a judgment in an action to recover wages and penalty for nonpayment of wages pursuant to the provisions of K. S. A. 44-307 and 44-308.
On July 27, 1970, the plaintiff, Gordon Holt, was employed as a salesman by the defendant, Frito-Lay, Inc., at a weekly wage of $120 plus ten percent commission on sales over $1,100 per week. Plaintiff’s duties were to deliver Frito-Lay merchandise by truck to various grocery stores and other businesses along certain routes. Holt was to follow the procedure accepted and used by the defendant’s route salesmen all over the country, i. <?., the beginning inventory of merchandise was checked out to the plaintiff by defendant. At the end of each day the plaintiff would report to the defendant the amount of his sales and after deducting truck expenses, remit the balance to defendant by money order, checks or report “charge customers.” Stale goods, unsold inventory, or initial shortage in inventory were also reported to defendant and credit received by plaintiff.
Periodically, an inventory would be taken. The inventory remaining at the end of the designated period, credit for stale, unsold and unreceived merchandise, remittances, charge accounts and deductible expenses were supposed to tally with the beginning inventory for the period involved. A Frito-Lay salesman had about four weeks in which to advise the company of an error in inventoiy checked out. The plaintiff personally signed all inventories; he noted no shortage in his merchandise orders, and had never reported any inventory shortage to the company.
Any substantial inventory shortages were to be deducted from the salesmen’s pay checks. The plaintiff claimed his pay checks were short and no deductions should have been made. The defendant claimed plaintiff’s inventories were substantially short on specific occasions and the shortages were properly deducted from his pay checks. The plaintiff terminated his employment with defendant December 1, 1970.
The plaintiff filed his action on January 21, 1971, and alleged that at the time of termination of employment wages were due him in the amount of $503.34, and penalties pursuant to K. S. A. 44-307 and 44-308 in the amount of $720, making a total due of $1,223.34. (We note without further discussion the above statutes have since been amended [see K. S. A. 44-313-316].)
In its answer, Frito-Lay denied owing plaintiff anything, and asserted in its cross petition that Holt owed it the sum of $195.57 together with interest at the rate of eight percent from the date the plaintiff terminated his employment until paid.
At the pretrial conference, plaintiff requested a trial by a twelve-member jury. The defendant requested a trial by the court. The district court directed a trial by a six-member jury. At the close of the evidence and following the instructions of the court, three special questions were submitted to the jury, which, together with answers, read:
“1. From the evidence do you find there existed between the Plaintiff and the Defendant an honest dispute as to the amount of compensation due?
“Answer Yes.
“2. If your answer to the preceding question is “No” state the amount of wages and penalties due to Plaintiff from the Defendant?
“Answer ....
“3. From the evidence what, if any amount, is owed by Plaintiff to Defendant on the claim of Defendant’s Cross Petition?
“Answer None.”
The judgment docket reflects the following remarks as of January 18, 1972:
“Judgment for defendant and against plaintiff as to the plaintiff’s petition and judgment is entered in favor of the plaintiff and against the defendant on the defendant’s cross petition.”
On January 24, 1972, the plaintiff filed a motion to set aside the verdict and judgment and to enter judgment for plaintiff for the following reasons:
“1. The verdict of the Jury is contrary to the evidence and the intent of the Jurors.
“2. That the Jury in answering special question No. One understood and agreed that they were rendering judgment for Gordon Holt in the amount of unpaid wages, plus all penalty wages.
“3. That the verdict and judgment thereon entered by the Court is contrary to the understanding and intent of each and every Juror.”
On January 26, 1972, the plaintiff filed a motion for new trial which gave similar but extended reasons to those listed above.
On February 24, 1972, some 37 days after the judgment was entered on the jury’s verdict, the plaintiff’s motions came on for hearing. All six jurors were called before the court to testify as to their intent in answering the special questions. Their testimony was quite similar: after discussing the case and considering the evidence a vote was taken — all six members cast their ballot in favor of the plaintiff. The foreman, after announcing the results, placed the ballots in his coat pocket and carried them there until he produced them at the hearing on the motion for a new trial. Each individual juror identified his or her ballot by the handwriting.
The testimony of the foreman was in harmony with the testimony of the other jurors, and we quote:
“Question: Now referring you to Special Question No. 1 there what answer do you have, what answer did you put down?
“Answer: I put down yes.
“Question: When you answered yes to that question, what did you understand it to mean?
“Answer: I took it that it asked whether there was an honest dispute or not and since Mr. Holt was suing Frito-Lay, I felt that Mr. Holt was honest in his suit of Frito-Lay and I felt if I answered it yes, that we would be in favor of him and he would receive the complete amount of compensation he asked for.”
In disposing of the plaintiff’s motion after the hearing, the district court stated in a memorandum opinion:
“The Court will first set forth that although the Plaintiff filed and presented this matter as a Motion to Set Aside Verdict and Judgment and to enter Judgment for Plaintiff Notwithstanding the Verdict, the court considers the matter as a motion to correct the verdict of the jury and receive the jury’s oral verdict.”
In the journal entry the district court found, “that the intent of the jury was to find for the plaintiff and they did so find.” The court then concluded, “the jury finds for Plaintiff and the Court accepts the verdict of the jury making a finding for Plaintiff and against the Defendant in the sum of Seven Thousand Two Hundred Twenty-Three and siloo Dollars ($7,223.34), plus costs.” The defendant’s motion for a new trial was overruled, and this appeal followed.
The appellant contends the district court erred in imposing local Rule No. 7 (B) (7) which compelled the trial of the case to a six-man jury.
At the pretrial hearing on October 1, 1971, local district court Rule No. 7 provided:
“Counsel will state if a jury is requested and estimate trial time required. . . .”
The record contains the following excerpt from the pretrial proceeding:
“During these proceedings the court was advised by the Plaintiff that Plaintiff requested a jury trial:
“The Court: Six man jury.
“Mr. McPherson: No, sir.
“The Defendant, Frito-Lay requested a trial to the court, but the court ruled the cause should be tried to a jury.”
We also find the following:
“. . . The court ruled that trial of the case would be set for 9:00 A. M., January 18, 1972, before a six member jury to be selected from a twenty member jury panel.”
The judicial district amended its Rule 7 to become effective January 1,1972. Rule7 (B) (7) provided:
“No. 7 (B) (7) Counsel will state if a jury is requested and estimate trial time required. In all civil jury cases, the jury shall consist of six members unless the court rules at pretrial that more shall be used.”
This court passed upon this question in Bourne v. Atchison, T. & S. F. Rly. Co., 209 Kan. 511, 497 P. 2d 110. It was held the right of trial by jury is a substantial and valuable right in which the state has an interest as a matter of public policy. It was also held the Legislature has the power to regulate the number of jurors required in the trial of civil cases in the district courts as long as the right to a jury trial is not materially impaired.
K.S.A. 1971 Supp. 60-248 (a) (now K. S. A. 1974 Supp. 60-248 [a]) provides:
“Stipulation as to number. The parties may stipulate that the jury shall consist of any number less than twelve (12) or that verdict or a finding of a stated majority of the jurors shall be taken as the verdict or finding of the jury.”
Under this mandatory provision, only by stipulation may the parties provide for a lesser number than a twelve member jury. (See, also, Southard v. Lira, 212 Kan. 763, 512 P. 2d 409; Manzanares v. Bell, 214 Kan. 589, 616, 522 P. 2d 1291.
There is nothing in the record which indicates the parties stipulated to a jury of less than twelve members. The district court in its application of its local rule has required the appellant to submit to a trial by a jury of six members without its stipulation or consent. The appellant having been denied a substantial statutory right, the case must be reversed and remanded to the district court for a new trial before a jury of twelve members.
Although what is said above disposes of the specific issue before us, there are other disputed issues which we touch on for the benefit of the court and the parties.
The appellant objects to the italicized part of the following instruction:
“You are further instructed that in an action by an employee for wages due and for penalties under the provisions of K. S. A. 44-307 and 44-308, as set forth in these instructions, does not apply where the service of an employee with the employer is terminated and there is an honest dispute about the amount due the employee from the employer, and the amount found due is the amount claimed by the employer.” (Emphasis supplied.)
The appellant contends the phrase “and the amount found due is the amount claimed by the employer,” would appear to mean that an “honest dispute” could only exist where an employer is adjudged by a court to owe his employee exactly the sum asserted by the employer.
The appellant’s objection to the instruction is well taken. There could be an honest dispute even though the jury found the amount due to be less than the employee contended but more than the employer contended to be due. In Gawthrop v. Missouri Pac. Rly. Co., 147 Kan. 756, 758, 78 P. 2d 854, we stated:
“. . . It would not do to say that every time an employee’s service with a company was terminated and there was a dispute about the amount due, the company should be made to pay a penalty for not paying the amount demanded, especially when it afterward turned out that the company was right. To so hold would permit unscrupulous employees to make demands they knew would not be met, and later bring an action for penalties. The statute was not intended to bring about such a result.” (I. c. 758.)
Again, in Bradshaw v. Jayco Enterprises, Inc., 212 Kan. 206, 510 P. 2d 174, we said:
“We observe that neither may a plaintiff’s claim be taken at face value and the penalty statute invoked automatically. There is generally little room for an honest dispute, however, over the amount of regular wages due upon termination of employment, but where there is a good-faith counter-claim, as in Osipik v. Jansen, 210 Kan. 645, 504 P. 2d 148, or a claim for an excessive amount as in Gawthrop v. Missouri Pac. Rly. Co., 147 Kan. 756, 78 P. 2d 854, or a dispute over contractual terms or the definition of wages, as in this case, it would be harsh and unjust indeed to apply the penalty statute.” (I. c. 206, 207.)
If the employer and employee in good faith disagree as to the amount due, there exists an “honest dispute” regardless of the amount finally found to be due.
The appellant challenges the constitutionality of K. S. A. 44-307 and 44-308 if the statutes are to be interpreted so as to bring about the incredible result as the judgment under attack.
It is observed that most any statute may be given such a liberal interpretation as to lead to absurdities and result in the taking of property without due process of law. However, there is no occasion for such an interpretation of the statutes in question.
If there is an honest dispute, the so-called penalty statute has no application. If the employer fails to act in good faith in denying the wages due, then the penalty or exemplary damages may properly apply. In Livingston v. Oil Co., 113 Kan. 702, 216 Pac. 296, we held:
“Chapter 219 of the Laws of 1911 (Gen. Stat. 1915, §§ 5880, 5881), which provide when wages shall be paid by corporations to persons leaving their employ and which prescribes penalties which are essentially exemplary damages for failure of any corporation to pay its employees within ten days after the termination of their employment does not violate any provision of the federal constitution; and an employee discharged without payment of his wages within ten days may have a clause of action under such act.” (Syl. ¶ 4.)
See, also, Bourne v. Atchison, T. & S. F. Rly. Co., supra.
The appellant asserts the district court erred in correcting the verdict and changing the judgment on the oral testimony of the jurors as to what their intentions were, some 37 days after the verdict had been accepted and judgment entered. The facts with respect to this issue have been detailed and need not be repeated.
Without unduly extending this discussion by reviewing cases, we conclude that if the district court was of the opinion the jury was confused in the answers given to the special questions, a new trial should have been ordered in all fairness to the parties. A rule permitting the changing of a verdict and judgment on the oral testimony of the jurors more than 30 days after the verdict was rendered and the jury dismissed would establish a dangerous precedent. In Hubbard v. Havlik, 213 Kan. 594, 518 P. 2d 352, we held:
“Where under all of the facts and circumstances presented by the record in a case it is disclosed that the jury was confused in making findings and in awarding damages a new trial will be ordered.” (Syl. ¶ 5.)
The judgment is reversed with directions to grant a new trial.
It is so ordered.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Foth, C.:
This is a direct appeal from the defendant’s conviction by a jury of aggravated kidnapping.
On May 2, 1973, at approximately 4:00 p.m., Kimberly P. Whittle, a seven year old first grade student of Caldwell Elementary School in Wichita, was on her way home. As she walked down a sidewalk near the school a man got out of an old green pickup truck, blocked her path, picked her up around the waist, and placed her in the passenger’s side of the truck.
While leaving the area the truck passed several members of the student safety-patrol; they saw the driver pushing Kimberly down in the seat. One alert young safety patrolman identified the truck as an old GMC and obtained the license number. This was reported to the principal who in turn relayed the information to the Wichita police. A license check revealed that the truck belonged to Gary Taylor, the defendant.
Events did not go so well for Kimberly. She began to cry, and her abductor took a small knife from his pocket, pressed it against her throat, and told her, “If you don’t stop crying, I am going to skin you.” She quit crying and told him to put the knife away, which he did. The man, who identified himself to' her as “Gary,” promised to show her some horses. They drove to a spot in rural Butler county along the rain-swollen Walnut River where he let her out of the truck. There, instead of showing her horses, he picked her up by the collar of her coat and the seat of her blue jeans, and on the count of three threw her into the water. Although she couldn’t swim Kimberly was able to keep her head above water and scramble out of the river onto a little island or sand bar not far downstream. She attempted to hide but Gary found her, took her back to the initial launch point and threw her in again. This time the current carried her farther away and closer to the other side of the river where she was able to get out of the water and escape. She was found a short time later walking down a country road by Mrs. Velma Hall, who lived in the area. Mrs. Hall took her to the Hall home and dried her clothes. Mr. Hall arrived and called her parents and the police.
In response to the Halls’ call Butler county deputy sheriff Wallace Parks went to the Hall house and talked to Kimberly about her experience. She described “Gary” as a young white man with shoulder-length hair and a small mustache, wearing blue jeans and an unbuttoned, multicolored shirt over a T-shirt. She also described the truck as an old one that “wasn’t shiny,” with a gear shift on the floorboard and a brown seat..
At approximately 8:00 p. m. that same evening, at a truckstop near Augusta, a Butler county deputy sheriff found a truck matching the description and with the tag number of the one which had spirited Kimberly away. The defendant was inside the truckstop. He matched Kimberly’s description and his identification proved him to be the owner of the truck. He was thereupon arrested.
Defendant’s initial claim is that he was not brought before a magistrate without unnecessary delay as required by K. S. A. 22-2901. The record indicates that approximately one hour after defendant was arrested at the truckstop in Butler county, he was transferred to the Wichita police. He was held in their custody until approximately 2:00 p. m. on Friday, May 4, before he appeared before a magistrate in Wichita. Dining the intervening 42 hours from arrest to arraignment, defendant acquired counsel, appeared in a line-up where he was identified as the driver of the green truck by the young safety-patrolman from Caldwell School and as the “Gary” who threw her in the river by Kimberly, and was questioned by the police on at least two occasions.
This question is not a new one for this court. We have previously expressed our strong disapproval of unwarranted delay in taking a prisoner before a magistrate after arrest. However, we have consistently said that “delay is not in and of itself a denial of due process unless it has in some way prejudiced the accused’s right to a fair trial.” State v. Giddings, 216 Kan. 14, 17, 531 P. 2d 445; State v. Nading, 214 Kan. 249, 519 P. 2d 714; Underwood v. State, 214 Kan. 633, 522 P. 2d 457.
The burden to show prejudice by the delay is upon the defendant. The defendant here makes no attempt to assume this burden; i. e., he makes no claim that anything happened during the 42 hour delay which might not as well have happened after presentment. He acquired counsel very early in this period. Instead, he attempts to shift the burden to the state, claiming that it is “ill placed since [he] is the least likely to be able to muster the resources to make [a] showing [of prejudice].” We disagree. The defendant is uniquely positioned to know whether or not events took place which were unfairly prejudicial. He claims none, and our independent review of the record reveals none.
The defendant’s next claims involve the search and seizure of his truck. It was seized at the time of defendant’s arrest in Augusta, and was towed to the Augusta police department. There its doors were sealed, and it was later turned over to the Wichita police department. The truck was not searched by the officers in Augusta. After being taken to Wichita the truck was photographed, a warrant was obtained and the interior was searched. Nothing resulting from this search was offered in evidence during the trial. The state did attempt to introduce certain tools found in the bed of the truck but they were excluded because of their lack of relevancy. A piece of broken beer bottle found in plain view in the bed of the truck was received as being relevant because Kimberly stated that she had seen a whiskey or beer bottle in the truck and that the defendant smelled as if he had been drinking.
The United States Supreme Court recently dealt with an analogous situation in Cardwell v. Lends, 417 U. S. 583, 41 L. Ed. 2d 325, 94 S. Ct. 2464. There the defendant was arrested on a murder charge. Evidence revealed that the murderer had used an automobile to push a car containing the victim’s body over an embankment.
When arrested, defendant’s car was located in a public parking lot. It was impounded by the police and towed to their impoundment lot but not searched until the following day. The court found no error in the seizure or in the delay in the search.
First the court there found that the evidence indicating “[a]n automobile similar in color and model to [this] car had been seen leaving the scene of the crime . . . corroborated by comparison of the paint scrapings taken from the victim’s car with the color and paint of [the defendant’s] automobile [and that he] had had repair work done on his car immediately following the death of the victim [constituted] reason to believe that the car was used in the commission of the crime for which [the defendant] was arrested.” (Id. at 592.) This was, in the court’s view, probable cause to search it.
In our case the police had an extremely accurate description of the make, model and color of the vehicle used in the kidnapping. In addition to this, they had the tag number and a detailed description of the driver. The truck found in the parking lot of the truck- stop and the defendant inside met the description exactly. Under Cardwell this constituted probable cause to search the truck.
Defendant contends that even if probable cause did exist, there were no exigent circumstances requiring the seizure of the truck without a warrant. We disagree and cite Cardwell once again. There the defendant claimed that a warrantless seizure was not necessary because the police could have made their search in the parking lot where the car was located. The court rejected that argument noting that the car was parked in a “public place where access was not meaningfully restricted.” In so doing the court distinguished Coolidge v. New Hampshire, 403 U. S. 443, 29 L. Ed. 2d 564, 91 S. Ct. 2022, where a seizure of a car from the relative privacy of the defendant’s driveway was held improper.
The Cardwell court quoted from Chambers a. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975:
“. . . For constitutional purposes, we see no difference between on the one hand seizing and holding a car before presenting the probable cause issue to a magistrate and on the other hand carrying out an immediate search without a warrant. Given probable cause to search, either course is reasonable under the Fourth Amendment.
“. . . The probable-cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to' anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.” (p. 52.)
Under the rationale of Chambers the court in Cardwell stated that the seizure of the car from a public parking lot instead of from a highway had “little, if any, legal significance. The same arguments and considerations of exigency, immobilization on the spot, and posting a guard obtain.” (Cardwell v. Lewis, supra, pp. 594-5.)
The parallels here are obvious. The pickup truck was parked in a public parking lot with open access. The police had probable cause to believe that the vehicle had been used in the commission of a crime and contained valuable evidence relating to that crime. To preserve that evidence it was necessary that the truck be immobilized and protected so none of that evidence would be lost or destroyed. The seizure was clearly legal. See State v. Hoy, 199 Kan. 340, 430 P. 2d 275. If the police had probable cause to search the truck at the time it was discovered and defendant arrested, they had probable cause to impound it and search it at a later, more convenient time.
The defendant also complains of the use at trial of photographs of his truck taken by the police department. The photographs were taken and used at the trial for identification purposes. The camera only preserved what the eye could readily see, and the eye can commit no trespass. State v. Blood, 190 Kan. 812, 378 P. 2d 548. We find no error in admitting these photographs.
Defendant’s next claim of error relates to an interview conducted by two Wichita police detectives shortly before he was presented to a magistrate. He claims that after he retained counsel it was error to question him without his counsel being present. The question was answered in State v. Melton, 207 Kan. 700, 486 P. 2d 1361, where the defendant similarly claimed that no statement could be taken from him in the absence of counsel after he had been charged. We held there that an accused may waive the right to have his counsel present during police interrogation after, as well as before, formal charges are filed against him.
In this case, prior to any questions being asked the defendant was fully informed of his rights, including the right to have counsel present. He was asked about his whereabouts during the time the kidnapping took place. His comments were completely exculpatory except to put him in the general area of the crime where, of course, he was arrested. At one point during the conversation the defendant expressed his determination not to answer any more questions in the absence of his attorney. There is some discrepancy between the defendant’s account of the questioning and the police officers’ recollection as to just when he made this announcement. Defendant claims that it was before he said anything, and that he was induced to speak by the officers’ statements that they were only after general information as to his whereabouts on the day of the crime. The officers’ version of the conversation is that the defendant voluntarily waived his right to have counsel present and willingly answered several questions prior to revoking his waiver and exercising his right to remain silent. At that time, the detectives testify, their questioning immediately ceased.
A Jackson v. Denno hearing was conducted by the trial court. It found that the defendant had waived his right to have his lawyer present during the first portion of the interview and that his statements as to his whereabouts were voluntary and admissible. It also found that the defendant reasserted his right to counsel during the interview and that all questions asked thereafter were inadmissible.
“. . . In determining the admissibility of a statement of the defendant obtained during custodial interrogation the trial court must weigh any conflicting evidence and make its findings based on the totality of the circumstances. If there is substantial competent evidence to support the trial court’s findings that the defendant voluntarily, knowingly and intelligently waived his Fifth and Sixth Amendment rights, such findings will not be disturbed on appellate review.” (State v. Soverns, 215 Kan. 775, 777, 529 P. 2d 181.)
The trial court’s findings here are adequately supported and will not be disturbed.
The final three allegations of error by the defendant relate to procedural matters occurring immediately prior to or during the trial.
First, the defendant claims that the trial court should not have allowed the state to endorse certain witnesses on the morning of the trial. Under K. S. A. 22-3201 (6) the question of endorsing witnesses is entrusted to the discretion of the trial court, and its ruling will not be disturbed unless abuse of that discretion is shown. The test is whether or not defendant’s rights have been unfairly prejudiced. State v. Williams & Reynolds, 217 Kan. 400, 536 P. 2d 1395; State v. Smith, 215 Kan. 34, 523 P. 2d 691; State v. Stafford, 213 Kan. 152, 515 P. 2d 769. The defendant here alleges no surprise, nor does he allege that his trial strategy would have been different had he had earlier warning of the state’s intent to call these additional witnesses. In fact the record indicates that these witnesses had been interviewed by defendant’s counsel during the course of his investigation of the case and that he knew exactly what their testimony would be. There was no prejudice and no abuse of discretion by the trial court here in allowing the endorsement of the additional witnesses.
The defendant next complains that the testimony of two police officers who repeated Kimberly’s story of her kidnapping was hearsay. The court ruled that the testimony in question was permissible under the exception to the hearsay rule covering “A statement previously made by a person who is present at the hearing and available for cross-examination with respect to the statement and its subject matter, provided the statement would be admissible if made by declarant while testifying as a witness”. (K. S. A. 60-460 [a].) At the time the officers testified Kimberly was in the court’s library. When asked if he wanted her in the courtroom the defendant’s counsel replied, “No.” She later testified. It would appear that the officers’ testimony came squarely within the statutory exception.
Defendant now argues, however, that although physically present Kimberly was not mentally present and subject to cross-examination because she “was not able to recall at all times the transaction which occurred on May 2.” We find this contention to be without merit. “Where a witness in fact testifies at a trial, it cannot be said that the witness was not 'available for cross-examination’ under K. S. A. 60-460 (a).” State v. Ralph, 217 Kan. 457, 537 P. 2d 200, Syl. ¶3. Kimberly did “in fact” testify at the trial. She was carefully cross-examined by defendant’s counsel. The questioning of counsel for both sides revealed that she could remember the events of May 2nd and that she had a clear recollection of what had happened to her. Our review of the record reveals that the only significant difficulty encountered centered around whether the seat of the truck was green or brown. Other than that, she described the truck, its broken window and torn seat and identified a picture of it as being the one driven by her abductor. She also recalled picking the defendant out of a line-up as being the one who threw her in the river, and she personally identified him again in the courtroom.
It is clear from the record that Kimberly was both physically and mentally present at the trial. The trial court did not err in admitting the officers’ testimony.
The final claim of the defendant concerns the trial court’s refusal to instruct on the lesser included offenses of simple kidnapping and unlawful restraint. The trial court ruled that the facts of this case indicated that the defendant was either guilty of aggravated kidnapping or not guilty of anything. The failure to instruct the jury on some lesser degree of a crime charged is not grounds for reversal if the evidence at the trial excludes a theory of guilt on a lesser offense. State v. Harris, 215 Kan. 961, 529 P. 2d 101 and cases cited therein.
Under K. S. A. 21-3421 the element distinguishing aggravated kidnapping from simple kidnapping is the presence of “bodily harm” to the victim. There is no evidence that Kimberly suffered any permanent injury from her ordeal. Therefore, if her kidnapping was “aggravated” kidnapping it must be because throwing her into the Walnut River was “bodily harm” as a matter of law. We believe it was.
“Bodily harm” has been defined by this court. In a kidnap-rape case we held that “any touching of the victim against [the victim’s] will, with physical force, in an intentional, hostile and aggravated manner, or the projecting of such force against the victim by the kidnaper is ‘bodily harm’ within the meaning of the statute.” (State v. Brown, 181 Kan. 375, 389, 312 P. 2d 832.) The definition was derived from People v. Tanner, 3 C. 2d 279, 44 P. 2d 324. We have In subsequent cases followed Brown in holding that rape constitutes sufficient “bodily harm” to support a conviction of aggravated kidnapping. State v. Ayers, 198 Kan. 467, 426 P. 2d 21; Sharp v. State, 203 Kan. 937, 457 P. 2d 14, and State v. Barry, 216 Kan. 609, 533 P. 2d 1308. This construction has also been followed in California’s People v. Brotan, 29 C. 2d 555, 176 P. 2d 929 and People v. Chessman, 38 C. 2d 166, 238 P. 2d 1001.
The California court has significantly narrowed the definition of “bodily harm” set forth in Tanner, and followed by this court in Brown. That court now recognizes that some “trivial” injuries are likely to result from any forcible kidnapping by the very nature of the act. It concludes that insignificant bruises or impressions resulting from the act itself are not what the legislature had in mind when it made “bodily harm” the factor which subjects one kidnapper to a more severe penalty than another. A significant policy reason for making the distinction is to deter a kidnapper from inflicting harm upon his victim, and to encourage the victim’s release unharmed. It was, in that court’s view, only unnecessary acts of violence upon the victim, and those occurring after the initial abduction which the legislature was attempting to deter. Therefore, only injuries resulting from such acts would constitute “bodily harm.” See People v. Jackson, 44 C. 2d 511, 282 P. 2d 898; People v. Gilbert, 63 C. 2d 690, 47 Cal. Rptr. 909, 408 P. 2d 365.
This refinement of the meaning of “bodily harm” fits within the limits of our own prior cases. The rapes in the Brown, Ayers, Sharp and Barry cases were acts of violence unnecessary to and not a part of the kidnapping itself. There was bodily harm or injury even though it may have been, at least in some of the cases, only temporary.
The act of throwing Kimberly into the Walnut River was an act of physical force committed in “an intentional, hostile and aggravated manner.” (State v. Brown, supra.) It was unnecessary and outside the required scope of a forcible kidnapping; it was just the type of attack on the victim that our “aggravated” kidnapping statute was designed to deter. The river was swollen and fast; Kimberly couldn’t swim and was wearing a heavy corduroy coat. Only good fortune saved her from drowning. Throwing her in the river was a felony in itself; i. e., it was an unlawful application of force to her person with an obvious intent to injure her, done in a manner whereby death could have been inflicted. It thus had all the elements of an aggravated battery under K. S. A. 21-3414.
While no permanent injury resulted, we think that in common understanding and in legal contemplation the ordeal inflicted on this child constituted “bodily harm.” It follows that defendant was indeed guilty of aggravated kidnapping or of nothing, and the trial court was not required to instruct on any lesser included offenses.
The judgment is affirmed.
APPROVED BY THE COURT
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Foth, C.:
The issue in this case is whether a creditor may lawfully use the threat of force to collect a debt he honestly believes is due him. The defendant Howard Russell used that means of collecting $1,883.57, and was charged with a class D felony, namely, theft by threat in violation of K. S. A. 21-3701 (c). He was convicted by the trial court sitting without a jury and has appealed.
In May, 1973, defendant contracted with Andrew Koehn to finish Koehn’s new farm home in Haskell County. The work was completed during the first part of August, 1973, and defendant thereafter made several attempts to collect the balance he claimed for extra work ordered orally by Koehn and his wife. Each time he was put off by Koehn, who made various excuses for not paying and professed to be dissatisfied with the quality of the work. Finally defendant sent a certified letter containing the bill to Koehn, who refused to accept delivery. The defendant thereupon decided to exercise self-help.
On December 20, 1973, accompanied by his son and Harvey Wendel, Jr., a 17 year old, 6'4", 225-pound friend, defendant proceeded by car to Koehn’s home. While defendant and his son ducked down in the car Wendel went to the door and told Koehn he was out of gas. During this discussion Wendel employed a fictitious name. Koehn finally took Wendel in his truck to his machine shed, about a mile from the home. While Koehn searched for a gas can, father and son entered the shed and the trap was sprung. The two young men stood with the defendant, between Koehn and the only exit, while the defendant presented his bill and demanded payment. He allowed as how he would get his money “one way or the other.”
There is disputed testimony as to the exact conversation, but there is no question but that it was heated. Koehn testified that he was scared, and finally wrote the defendant a check for the $1,883.57 demanded. As the defendant and his companions left they cut Koehn’s telephone wires, “to delay him from calling the bank.” They proceeded directly to the bank in Garden City, where defendant cashed the check and gave each of the boys $50.00.
According to his wife, when Koehn returned to his home from the shed he appeared frightened. At first he refused to make any attempt to stop payment on the check or to report the defendant’s visit to the authorities. Defendant had threatened, he said, to “send some more guys out” if he did. After some discussion Mrs. Koehn attempted to call the sheriff, but found the telephone dead. She went to her parents’ home some mile and a half away and made the call from there. This prosecution followed.
The key complaint of the defendant on appeal is that there was insufficient evidence to support the trial court’s finding of guilt in view of his bona fide claim to the money.
He bases this claim primarily upon State v. Goldsberry, 160 Kan. 138, 160 P. 2d 690. There two ranchers disputed over the ownership of certain specific cattle in one of their pastures. Goldsberry entered the property of the other rancher and took the disputed cattle in order to have them shorn to determine their brands. When the other rancher attempted to stop Goldsberry he was threatened with a gun. Goldsberry was later charged with grand larceny. This court reversed his conviction and in doing so stated:
“An intent to steal property and a bona fide claim of the right to take it are incompatible. One who takes property in good faith under fair color of claim of title, believing that he is its owner and has the right to its possession or that he has a right to take it, is not guilty of larceny even though he is mistaken in such belief.” (Syl. ¶ 3.)
The issue of the incompatability of an intent to steal with a bona fide claim of right was discussed at length by this court in State v. Pierce, et al., 208 Kan. 19, 490 P. 2d 584. There the defendants were convicted of robbery for forcing, by threats, the director of a community services agency to write several checks for wages they claimed were due them. There, as here, the defendants relied primarily upon Goldsberry. The court found that reliance misplaced. The language used by the court in Pierce is particularly apropos:
“One compelling factual distinction exists between Goldsberry and the case at bar. The former involved a claim to certain and specific property, namely, several head of cattle. Here no claim of title to any specific property was invoked by appellants. Rather the purported claim was to an inchoate undetermined amount of money allegedly owed, to satisfy which appellants took property to which they could trace no claim of title. Although there is authority to the contrary (see anno. 46 A. L. R. 2d 1227), we believe the better rule, grounded on both law and public policy, is that the violent taking of property from the person of another by force or intimidation for the purpose of applying it to payment of an alleged debt constitutes the offense of robbery where the taker has no bona fide claim of title or right to the possession of the particular property.” (p. 26. Emphasis added.)
A number of the earlier authorities indicate that the “prevailing view” among the various jurisdictions of this country is that a claim of right, even to unspecified money, negates criminal intent. Perkins on Criminal Law, p. 229. See also, anno., 46 A. L. R. 2d 1227; 2 Wharton’s Criminal Law & Procedure, § 550 (1957); 2 Burdick, Law of Crime, §§ 541, 552, 600. That view does not however, enjoy the universal acceptance those authorities might seem to indicate.
A New Jersey count had a recent opportunity to discuss this so-called “prevailing view” and found its support to be waning:
“. . . The most recent annotation in 1956, discloses the proposition to have been adopted or applied in only 11 jurisdictions in the United States . . ., 46 A. L. R. 2d 1227 (1956).
“Moreover, in those jurisdictions which, since 1937, have had occasion to examine the question as a matter of first impression, all have rejected it — with the exception of a single federal case, decided by a divided three-judge court. . . .
“In our view, the proposition not only is lacking in sound reason and logic, but it is utterly incompatible with and has no place in an ordered and orderly society such as ours, which eschews self-help through violence. Adoption of the proposition would be but one step short of accepting lawless reprisal as an appropriate means of redressing grievances, real or fancied. We reject it out of hand.” (State v. Ortiz, 124 N. J. Super. 189, 191-2, 305 A. 2d 800. Emphasis added.)
The same distinction upon which the court relied in Pierce is present here. There is no claim of title to any specific property. There is present only a disputed claim to a certain amount of Koehn’s money. The taking of money by force or intimidation, even for the purpose of applying it to the payment of an alleged debt, violates public policy and violates our theft statute.
As a subsidiary contention defendant claims that the evidence here tended to show robbery rather than theft, which he says is a separate and distinct crime. This state has long recognized that robbery and theft (formerly termed larceny) are kindred crimes. In State v. Segermond, 40 Kan. 107, 108, 19 Pac. 370, the court accepted the definition of robbery as being “larceny committed by violence of the person of one put in fear.” In Guffey v. Casualty Co., 109 Kan. 61, 197 Pac. 1098, Syl. ¶ 2, the court held that “Robbery includes larceny and may be deemed forcible larceny, and in order to constitute it there must be an intent to deprive the owner of the property taken, not temporarily but permanently.” The principle that the crime of theft is necessarily included in a robbery was recognized by implication in the recent case of State v. Harris, 215 Kan. 961, 529 P. 2d 101. There we held that in a robbery prosecution an instruction on theft (“unauthorized control over property as proscribed in K. S. A. 1973 Supp. 21-3701 [a]”) was not necessary, but only because the evidence at the trial excluded guilt of the lesser offense.
The evidence in this case, under the Pierce rationale, would have justified a finding of the offense of robbery had the defendant been so charged. The evidence being sufficient to support a conviction for the graver offense, it is certainly sufficient to support a conviction for theft.
The judgment is affirmed.
APPROVED BY THE COURT.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from a conviction of the crime of indecent liberties with a child in violation of provisions of K. S. A. 21-3503 (1) (a).
The information alleged ■ the crime was committed “sometime during the first part of August, 1972.” Wynona Ledeen MacCready, commonly known as Bunny, was fourteen years old at the time of the alleged crime. She was baby-sitting for Cindy Shepard, who lived in a mobile home in Grenola, Kansas. This was three or four blocks from where Bunny lived with her mother and step-father. Bunny testified that around 10:00 o’clock p. m., there was a knock on the door. She opened the door and the defendant, David Wonser, walked into the living room. He forced Bunny down the narrow hallway to the back bedroom, threw her on the bed, removed her jeans and panties, and forcibly had sexual intercourse with her. He left after asking her if she was going to tell her mother.
Cindy Shepard returned home between 11:30 and 12:00 o’clock midnight. She noticed Bunny had been crying and after some inquiry as to the problem, Bunny informed Cindy that David Wonser came to the house and “had gone all the way with her.” Cindy took Bunny home to her mother. Bunny awakened her mother without disturbing her step-father and informed her that David had raped her. It was decided by Bunny, her mother and Cindy Shepard not to tell anyone about the incident because they did not want David’s wife and children hurt.
Later, in April, 1973, Bunny’s step-father and her father learned of the incident. Following a family conference, the incident was reported to the county attorney and a complaint was filed.
The case was tried, and on September 14, 1973, a verdict of guilty was returned by the jury, which verdict was approved by the district court. A motion for a new trial was overruled, and the defendant has appealed.
Bunny, the complaining witness, Cindy Shepard, and Bunny’s mother testified at the trial, and they were unable to give a more specific date than the first week of August, 1972.
Appellant contends the failure to give a definite date and time deprived him of his rights under Section 10 of the Bill of Rights of the Constitution of the state of Kansas and the Sixth Amendment to the Constitution of the United States, which guarantee that all persons shall have the right to know the nature and cause of any accusation brought against them. The point is not well taken.
This court has held on numerous occasions that the precise time of the commission of an offense need not be stated in the indictment or information. Except where the time is an indispensable ingredient of the offense, it is sufficient if shown to have been within the statute of limitations. (State v. Bowman, 106 Kan. 430, 188 Pac. 242; State v. Freeman, 143 Kan. 315, 55 P. 2d 362; State v. Thomas, 177 Kan. 230, 277 P. 2d 577.) Time was not an indispensable ingredient of the crime charged and the crime was shown to have been well within the statute of limitations. Time had nothing to do with the nature and cause of the accusation.
Neither do we find any merit in the appellant’s contention he was denied the defense of an alibi. The appellant made no attempt to comply with K. S. A. 22-3218 (1) which requires notice of plea of alibi. Ihe statute reads in part:
"In the trial of any criminal action where the complaint, indictment or information charges specifically the time and place of the crime alleged to have been committed, and the nature of the crime is such as necessitated the personal presence of the one who committed the crime, and the defendant proposes to offer evidence to the effect that he was at some other place at the time of the crime charged, he shall give notice in writing of that fact to the prosecuting attorney except that no such notice shall be required to allow testimony as to alibi, by the defendant himself, in his own defense. The notice shall state where defendant contends he was at the time of the crime, and shall have endorsed thereon the names of witnesses he proposes to use in support of such contention.”
In State v. Collins, 209 Kan. 534, 536, 498 P. 2d 103, we stated:
“Under similar circumstances we have gone so far as to say that even the defendant could properly be precluded from testifying that he was elsewhere at the time of the alleged crime. State v. Rider, 194 Kan. 398, 399 P. 2d 564, Syl. ¶ 2; State v. Kelly, 203 Kan. 360, 454 P. 2d 501, Syl. ¶ 3. See also, State v. Sharp, 202 Kan. 644, 451 P. 2d 137, and cases cited. Here the court ruled that the defendant would be permitted to testify ‘as to what he pleases,’ but that his other witnesses could not testify ‘in the nature of alibi.’ This was all he would have been entitled to under the present code (K. S.A. 1971 Supp. 22-3218) and more than he was entitled to' under the code then in effect and the authorities cited above. The ruling certainly was not reversible error.” (l. c. 536).
See, also, State v. Kirk, 208 Kan. 645, 493 P. 2d 233.
The appellant’s cotinsel, after being informed that a definite date could not be established, raised no objection at the trial. The specific issue was not raised until the case reached this court on appeal. Trial errors are deemed waived by silence or acquiescence. (State v. Hancock, 127 Kan. 510, 274 Pac. 209; State v. Childs, 198 Kan. 4, 422 P. 2d 898; State v. Osbey, 213 Kan. 564, 517 P. 2d 141.)
The appellant contends “[i]t was error for the Trial Court to allow repeated use of the word rape’ when referring to the alleged crime thereby inflaming and prejudicing the jury’s consideration of the case.”
The record indicates the witnesses at the trial, the prosecuting attorney, and counsel for the appellant used the word “rape” on various occasions.
The appellant sums up his particular grievance as follows:
“In the information, appellant was charged with what is referred to as indecent liberties with a child. (K. S. A. 1973 Supp. 21-3503.) The use of force to accomplish the prohibited act is not an element of the crime with which the appellant was charged. It is common knowledge that the use of force to accomplish intercourse is usually referred to' as rape. It is also commonly held that sexual crimes, particularly involving force are repugnant to the community at large.”
One of the elements of the crime of indecent liberties with a child is the act of sexual intercourse with a child under sixteen years of age, who is not the spouse of the offender. The element of force or overcoming resistance is not a necessary ingredient of the offense. The act of sexual intercourse is a crime even though done with the consent of the child. However, the act is no less a crime if done with force constituting rape as that term is defined by K. S. A. 21-3502. Bunny told her mother she had been raped. Her testimony, if believed, established that she had been raped.
We see no objection to presenting the true facts in a criminal prosecution and calling an element of the offense by its commonly understood name. The rape of a child under sixteen years of age includes the act of sexual intercourse, constituting the crime of indecent liberties with a child. There was no intention of prejudicing the jury — the parties were simply designating the act by its common name.
Likewise, there is no merit in the appellant’s contention the verdict was not supported by substantial evidence. In his brief the appellant attacks the weight of the complaining witness’ testimony rather than its sufficiency. This court does not weigh the evidence on appeal but reviews the evidence for the purpose of determining whether it is sufficient to form the basis for a reasonable inference of guilt when viewed in the light most favorable to the state. (State v. Platz, 214 Kan. 74, 519 P. 2d 1097.)
It would serve no useful purpose to present the evidence in more detail. It is sufficient to say the evidence established the elements of the offense charged and was sufficient to support the verdict of guilty.
The judgment is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the state from an order granting the defendant’s motion for dismissal of an information charging aggravated arson (K. S. A. 21-3719 [Weeks]).
At issue are the constitutional and statutory guarantees of a right to speedy trial.
On April 9, 1973, apartment building “L” of the Countryside Rentals, occupied by two females, was damaged by a fire set by some arsonist. On April 10, 1973, Timothy Fink (defendant-appellee ) was arrested and charged by way of complaint with aggravated arson (K. S. A. 21-3719). That same day the defendant appeared before a magistrate who appointed counsel to represent him and set the preliminary hearing for April 17,1973.
On April 17, 1973, the defendant appeared with his counsel and requested psychiatric services to assist in his defense pursuant to K. S. A. 22-4504 (Weeks). This motion was denied but the magistrate court, having reason to believe the defendant was incompetent to stand trial, suspended the proceedings and certified the case to the district court to determine the defendant’s competency pursuant to K. S. A. 22-3302 (Weeks). The magistrate court stated a new preliminary hearing date would be set if the defendant was found competent and returned by the district court.
On April 18, 1973, the district judge appointed a medical commission consisting of two qualified physicians to examine the defendant. Although empowered to commit the defendant for 60 days for this examination, that did not occur. Instead, the defendant was released on bond the next day and at some point in time, which the record does not reflect, the defendant voluntarily committed himself at the Osawatomie State Hospital.
Two physicians examined the defendant on April 28, 1973, and filed their report on June 29,1973.
At a July 11, 1973, hearing, based on the physicians’ June 29, 1973, report and their letter dated July 6, 1973, the district court found the defendant was mentally competent to stand trial, and the case was remanded to the magistrate court for further proceedings. A letter reciting the district court’s determination was sent to and filed by the clerk of the magistrate court on July 16, 1973, but a journal entry reflecting that determination was not filed until August 14,1973.
On July 31, 1973, (fifteen days after the magistrate court clerk re ceived the district court’s determination) a motion was filed by the state seeking an order setting the case for preliminary hearing. The record does not reflect a ruling on this motion.
No action was taken until November 12, 1973, when the magistrate court issued a bench warrant to secure the defendant’s appearance. On November 14, 1973, the defendant appeared before the magistrate court and the preliminary hearing was set for November 27,1973.
On November 21, 1973, the defendant moved to dismiss with prejudice all charges. On November 27, 1973, the magistrate court dismissed the action stating that by virtue of K. S. A. 22-2902 (Weeks) the defendant had a right to a preliminary hearing within fifteen days of July 11, 1973, and that right had been denied. The court stated the dismissal was without prejudice.
On November 30, 1973, the charge against the defendant was refiled in the magistrate court, closely followed by the defendant’s second motion for dismissal, alleging the denial of due process because of the state’s failure to provide a speedy trial and because of the state’s refiling of identical charges after the first was dismissed. That motion was denied and a preliminary hearing was held on December 19, 1973, (some 254 days after defendant’s arrest). The magistrate court bound the defendant over to appear for arraignment in the district court on or before January 9, 1974.
The state filed an information in district court on December 26, 1973, and on January 9, 1974, the defendant filed notice of his insanity defense. On February 7, 1974, the defendant moved to dismiss the charges.
The record indicates this motion and the case languished in the district court until June 5, 1974, when the district court dismissed the information and discharged the defendant due to the totality of the delay and the invasion of the defendant’s constitutional rights.
Throughout these proceedings the defendant has been at liberty on bond.
Pursuant to K. S. A. 22-3602 (a) (Weeks) the state has perfected an appeal.
Both the Sixth Amendment to the United States Constitution and Section 10 to the Bill of Rights to the Kansas Constitution guarantee an accused the right to a speedy trial. This constitutional guarantee has been codified in various statutes. The United States Supreme Court has recently indicated approval of this practice by holding that the states “are free to prescribe a reasonable period consistent with constitutional standards,” Barker v. Wingo, 407 U. S. 514, 523, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972).
This court has similarly recognized legislative codification of speedy trial guarantees. In Stark v. Dolack, 216 Kan. 622, 533 P. 2d 1282, the court held:
“. . . It is a well-established rule the Legislature may, within reason, define what is meant by the constitutional guarantee to a speedy trial, and has consistently done so. . . .” (p.633.)
After an arrest K. S. A. 22-2902 prescribes the time limitation for preliminary hearings as follows:
“(2) The preliminary examination shall be held before a magistrate of a county in which venue for the prosecution lies within ten days after the arrest or personal appearance of the defendant. Either the state or the defendant shall, upon request, be granted a continuance of not more than 15 days. Further continuances may be granted only for good cause shown.”
After the preliminary hearing, if the defendant is bound over to the district court, K. S. A. 22-3206 (Weeks) controls. It reads in part:
“(1) A defendant charged with a felony in an information shall appear for arraignment upon such information in the district court not later than the next required day of court which occurs ten or more days after the order of the magistrate binding the defendant to appear in the district court for trial, unless a later time is requested or consented to by the defendant and approved by the court or unless continued by order of the court.”
After arraignment a prompt trial must be held. K. S. A. 22-3402 (Weeks) provides the time limitations where, as here, the defendant is released on bond. It provides in part:
“(2) If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, he shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).”
With this statutory and constitutional framework in mind the state contends the court erred in dismissing the information because there was no showing of prejudice to the defendant, and time was within the 180 days of arraignment guaranteed by K. S. A. 22-3402 ( 2).
The defendant focuses on the totality of time involved in this case and contends the court did not err in dismissing the information because the totality of delay in this matter is such that constitutional rights have been invaded.
The defendant further contends the November 27, 1973, order dismissing the complaint was a final- order barring further prosecution under K. S. A. 21-3108 (Weeks), which provides:
“(1) A prosecution is barred if the defendant was formerly prosecuted for the same crime, based upon the same facts, if such former prosecution:
# « e » o
“(b) Was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution. . . .”
On the record here presented there is no inconsistent factual or legal proposition involved.
The applicable standard for jeopardy is enunciated in K. S. A. 21-3108 (1) (c):
“. . . A defendant is in jeopardy when he is put on trial in a court of competent jurisdiction upon an indictment, information or complaint sufficient in form and substance to sustain a conviction, and in the case of trial by jury, when the jury has been impaneled and sworn, or where the case is tried to the court without a jury, when the court has begun to hear evidence.”
Under the foregoing statutory test no jeopardy has here attached. Our law is clear that the mere pendency of an indictment, information, or complaint does not constitute jeopardy. (Cox v. State, 205 Kan. 867, 873, 473 P. 2d 106.) The dismissal or nolle prosequi of a criminal charge entered prior to the arraignment and trial of an accused is not a bar to a subsequent prosecution for the same offense. (Kenreck v. State, 198 Kan. 21, 24, 422 P. 2d 894 and authorities cited.) The same is true where a charge has been dismissed against a prisoner prior to the expiration of the time limitation, and a second information is filed. The time elapsing between the filing of the first information and the dismissal of the cause by the court is not to be counted in determining the time elapsed between the filing of the second information and trial. (State v. Rowland, 172 Kan. 224, 239 P. 2d 949, 30 A. L. R. 2d 455; People v. Nelson, 228 Cal. App. 2d 135, 39 Cal. Rptr. 238 [1964]; State v. Rolax, 3 Wn. App. 653, 479 P. 2d 158 [1970]; and Montgomery v. State, 4 Md. App. 473, 243 A. 2d 620 [1968], cert. denied, 395 U. S. 948, 23 L. Ed. 2d 466, 89 S. Ct. 2027 [1969]. See Annot., 50 A. L. R. 2d 943.) The charge is no longer pending against a prisoner, and therefore another indictment or complaint can be filed against him. (22A C. J. S., Criminal Law, § 468 [d], p. 36.)
These rules are not inconsistent with K. S. A. 22-2902 which contains no requirements for absolute discharge of a defendant in a criminal action when time limitations are not met. K. S. A. 22-3402 indicates an accused “shall be entitled to be discharged from fur ther liability to be tried” if not brought to trial within the appropriate time limit. A similar statute has been construed not merely to set a prisoner within its terms at liberty, but, in effect, to acquit him if he was not brought to trial within the time prescribed. (In re Edwards, Petitioner, 35 Kan. 99, 10 Pac. 539; The State v. Dewey, 73 Kan. 735, 85 Pac. 796, later appeal 73 Kan. 739, 88 Pac. 881; and State v. Patterson, 126 Kan. 770, 271 Pac. 390.)
Generally, dismissal of the charges is the only possible remedy for denying the defendant’s constitutional right to a speedy trial. (Strunk v. United States, 412 U. S. 434, 37 L. Ed. 2d 56, 93 S. Ct. 2260 [1973].) However, a legislative enactment which does not expressly provide for discharge or dismissal, if not complied with, has been construed as merely directory. (22A C. J. S., Criminal Law, § 468 [b], p. 34; In re Garner, 134 Kan. 410, 5 P. 2d 821 [disapproved on other grounds in State v. Sanders, 209 Kan. 231, 495 P. 2d 1023]; Baier v. State, 197 Kan. 602, 419 P. 2d 865; and State v. Wilson, 198 Kan. 532, 426 P. 2d 288.) We conclude K. S. A. 22-2902 does not require the dismissal of subsequent charges and the discharge of the defendant, if a preliminary hearing is not provided within ten days. Rather, the right to a speedy trial is to be viewed from the totality of the facts and circumstances in a given case. (State v. Otero, 210 Kan. 530, 502 P. 2d 763; and State v. Stanphill, 206 Kan. 612, 481 P. 2d 998.)
While it would be possible to have many indictments, dismissals and refilings, the case at bar does not present that question. There is no justification to assume this holding would lead to an abuse of legal process.
Under our former statutes on preliminary examinations, K. S. A. 62-610 et seq. (repealed in 1970), it was held the guarantee of a speedy trial contained in Section 10 of the Bill of Rights of the Kansas Constitution does not refer to the preliminary examination. (Witt v. State, 197 Kan. 363, 416 P. 2d 717; Cooper v. State, 196 Kan. 421, 411 P. 2d 652; and State v. Trotter, 203 Kan. 31, 453 P. 2d 93.) A preliminary examination is not a trial of the defendant’s guilt but an inquiry whether the defendant should be held for trial. (In re Mortimer, 192 Kan. 164, 386 P. 2d 261; and State v. Smith, 215 Kan. 34, 523 P. 2d 691.) However, the United States Supreme Court in United States v. Marion, 404 U. S. 307, 30 L. Ed. 2d 468, 92 S. Ct. 455 (1971) indicated:
“. . . [I]t is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.” (p. 320.)
The doctrine of res judicata does not here bar a subsequent refiling of the dismissed complaint. Without extended discussion on this issue, it is sufficient to say arguments on res judicata have long been overshadowed in criminal law by the constitutional doctrine of double jeopardy. (Spring, The Effect of Former Prosecutions; Something Old and Something New Under Kan. Stat. Ann., Sec. 21-3108, 9 Washburn L. J. 179, 187 [1970].) •
Indeed, our statutes impliedly provide for a second prosecution in K. S. A. 21-3106 (3) (d) (Weeks). To hold once a complaint is filed, where the accused is not given a preliminary hearing within ten days, that a second complaint cannot be filed would nullify the statute of limitations. (See, State v. Royal, 217 Kan. 197, 535 P. 2d 413.) This clearly was not the intention of the legislature in 22-2902, supra.
Has the defendant been denied his right to a speedy trial? The record indicates the arraignment was held sometime between December 26, 1973, and January 16, 1974, but the exact date is not shown. Assuming December 26, 1973, was the arraignment date, the defendant’s 180 days for trial under 22-3402, supra, had not been exceeded on June 5, 1974, when the trial court dismissed the information. The state’s appeal to this court on June 14, 1974, tolled the running of 22-3402, supra. (See, K. S. A. 22-3604 [Weeks].) Therefore, no legislative enactment entitling the defendant to a speedy trial has been violated.
Only if the totality of the delay is violative of the defendant’s right to a speedy trial can the trial court be upheld. The United States Supreme Court in Barker v. Wingo, supra, comprehensibly undertakes to define the constitutional right to a speedy trial. There the court recognized more than one criterion for determining whether an accused has been deprived of or has been accorded a speedy trial. It stated:
“. . . We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right. Though some might express them in different ways, we identify four such factors: Length of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.
# $ # # #
“We regard none of these four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered to gether with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accuseds interest in a speedy trial is specifically affirmed in the Constitution.” (pp. 530, 533.)
Kansas adopted the Barker test vis-a-vis the right to speedy trial in State v. Otero, supra, and has followed its guidance in more recent cases. (State v. Smith, supra; and State v. Dolack, supra.)
In the present case the totality of the delay from first arrest to this appeal encompasses some fourteen months. Generally, no violation can be proven solely by reference to periods of time. (United States v. Bandy, 269 F. Supp. 969, 970 [D. N. D. 1967], cert. denied, 390 U. S. 912, 19 L. Ed. 2d 883, 88 S. Ct. 831 [1968]; 393 U. S. 1004, 21 L. Ed. 2d 469, 89 S. Ct. 494 [1968]; and Short v. Cardwell, 444 F. 2d 1368 [6th Cir. 1971].) Rather, Barker indicates the length of delay is to some extent a triggering mechanism. There a five-year delay between arrest and trial was not violative of constitutional rights.
There is some authority that pre-indictment delay is not applicable to speedy trial rights, unless it impairs the defense of the accused. (See, United States v. Smith, 487 F. 2d 175 [5th Cir. 1973], cert. denied, 419 U. S. 846, 42 L. Ed. 2d 75, 95 S. Ct. 82 [1974], where a delay of three and one-half years between the time the defendant came into federal custody and the time he was indicted, part of which was due to defendant’s having pleaded insanity, resulted in no actual prejudice.) But this view has been criticized. (Note, 8 Ind. Law Review, 414, 420 [1974].)
Cases have recognized that delays greater than fourteen months are not per se constitutionally infirm. (United States ex rel. Walker v. Henderson, 492 F. 2d 1311 [2nd Cir. 1974] [fifteen-month delay], cert. denied, 417 U. S. 972, 41 L. Ed. 2d 1144, 94 S. Ct. 3179 [1974]; United States v. Reynolds, 489 F. 2d 4 [6th Cir. 1973] [22-months delay], cert. denied, 416 U. S. 988, 40 L. Ed. 2d 766, 94 S. Ct. 2395; United States v. Key, 458 F. 2d 1189 [10th Cir. 1972] [two year delay], cert. denied, 408 U. S. 927, 33 L. Ed. 2d 339, 92 S. Ct. 2510 [1972]; and United States v. Shepherd, 511 F. 2d 119 [5th Cir. 1975] [21-months delay].) However, time alone is not determinative.
The reason for the delay must also be considered. This factor was discussed in Barker as follows:
“. . . [Different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. . . .” (p.531.)
Cases considering the “more neutral” reasons for delay have tended not to weigh these very heavily against the prosecution. (United States v. Toy, 482 F. 2d 741 [D. C. C. 1973] [fifteen-months delay for “institutional reasons”]; United States v. Cabral, 475 F. 2d 715 [1st Cir. 1973] [fifteen-months delay because of “government neglect”]; and United States v. Shepherd, supra, [21-months delay from courts inaction].)
Here the prosecution does not offer a satisfactory explanation for the delay. Time spent in this case up to the first preliminary hearing and part of the later delay was related to the defendant’s competency examination, all of which has a bearing on his asserted defense of insanity. Where the state makes a proper record on delays occasioned by a determination of the accused’s competency to stand trial, the state is not charged with such delay in determining whether the accused was afforded a speedy trial. (State v. Powell, 215 Kan. 624, 527 P. 2d 1063; and see State v. Stanley, 179 Kan. 613, 296 P. 2d 1088, cert. denied, 352 U. S. 851, 1 L. Ed. 2d 62, 77 S. Ct. 73; United States v. Davis, 365 F. 2d 251 [6th Cir. 1966]; and Annot., 57 A. L. R. 2d 302, [Waiver of Speedy Trial].) Here the record does not indicate the delay has been caused by the state to hamper the defendant or for some other questionable purpose. (See United States v. Marion, supra.)
The state erroneously contends the reason for the delay is that the defendant did not appear before the magistrate. A defendant has no duty to bring himself to trial; the state has that duty. (Barker v. Wingo, supra at p. 527; State v. Sanders, supra; and State v. Higby, 210 Kan. 554, 502 P. 2d 740.)
The assertion of the right to a speedy trial must also be considered. This factor was discussed in Barker as follows:
“. . . Whether and how a defendant asserts his right is closely related to the other factors we have mentioned. The strength of his efforts will be affected by the length of the delay, to some extent by the reason for the delay, and most particularly by the personal prejudice, which is not always readily identifiable, that he experiences. The more serious the deprivation, the more likely a defendant is to complain. . . .” (p. 531.)
Thus, while defendant’s failure to assert his speedy trial right is not a reason for delay, it is a factor to consider in determining prejudice. (See, United States v. Macino, 486 F. 2d 750 [7th Cir. 1973].)
Here the record discloses no objection on the defendant’s part toward initiating the trial proceedings. Only when preliminary hearings were held did defendant object to their untimeliness. On the facts in this case the failure of the defendant to assert his speedy trial right is not entitled to the weight and consideration given this factor in State v. Hemminger, 210 Kan. 587, 502 P. 2d 791. (See also, United States v. Gibson, 513 F. 2d 978 [6th Cir. 1975].)
A fourth factor to consider is prejudice to the defendant. This factor was discussed in Barker as follows:
“. . . Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (if) to minimize anxiety and concern of the accused; and (Hi) to limit the possibility that the defense will be impaired. . . .” (p. 532.)
The defendant here does not claim any prejudice. He was released on bond. In Moore v. Arizona, 414 U. S. 25, 38 L. Ed. 2d 183, 94 S. Ct. 188 (1973), the United States Supreme Court “expressly rejected the motion that an affirmative demonstration of prejudice was necessary to prove a denial of the constitutional right to a speedy trial.” However, in the absence of such demonstration, this court is left with a delay which for speedy trial purposes does not exceed 180 days from arraignment, a test established by the legislature. Where our legislative enactments have specifically required action within a given time limit, this court has been quick to grant relief. (State v. Goetz, 187 Kan. 117, 353 P. 2d 816 and State v. Sanders, supra.)
On the record here presented we cannot say the defendant has been prejudiced. His asserted defense is insanity at the time of the commission of the offense. Much of the delay encountered in this case was either directly or indirectly occasioned by the defendant through his counsel in an attempt to establish his asserted defense. (State v. Smith, 215 Kan. 34, 523 P. 2d 691.)
After considering the length and reason for the delay in the trial of the defendant, the lack of demand for trial and the lack of prejudice claimed by the defendant, we conclude the defendant has not been denied his constitutional right to a speedy trial.
The judgment of the lower court is reversed with directions to proceed with trial.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Foth, C.:
This is an original proceeding in habeas corpus in which the petitioner, Alan Ekis, seeks release from the custody of the Sedgwick county sheriff. Pie is charged in the district court of that county with six felony charges; aggravated kidnapping, aggravated burglary, robbery, rape, forgery, and attempted forgery. His claim is that the state of Kansas failed to afford him a trial within the time prescribed by the interstate Agreement on Detainers, and thereby lost jurisdiction to try him for his alleged offenses.
The present charges against Ekis were filed in the Sedgwick county court of common pleas and a warrant for his arrest was issued on November 20, 1970. He had fled, and his whereabouts were unknown for almost two years.
In June, 1972, Ekis was arrested in Arizona on charges pending in Illinois and was returned to the latter jurisdiction. On August 21, 1972, he was sentenced to the Menard branch of the Illinois state penitentiary for a two to four year term for theft and felony escape. He was received at Menard on August 24, 1972. In September, 1972, the marshal of the Sedgwick county court of common pleas lodged a detainer for Ekis with the Menard officials. A separate notice was sent to Ekis, notifying him that he was wanted in Kansas.
On October 20, 1972, Ekis delivered to the Menard records clerk a document entitled “Motion for Recall of Detainer and for Dismissal of Outstanding Indictments or, in the Alternative, for a Speedy Trial.” In his motion Ekis complained that the Kansas detainer was preventing him from achieving trusty status, and that the delay in bringing him to trial might result in losing the testimony of unnamed but “vitally important” defense witnesses. The delay he complained of was the four month period he had been in custody, from June to October, 1972. He prayed for dismissal, or in the alternative for a speedy trial. Paragraph 5 of his motion is of particular significance:
“5. No attempt has been made to bring Petitioner to trial on the aforementioned indictments, although petitioner has at all times been available to the State of Kansas for trial. Both Kansas and Illinois are parties to the uniform criminal extradition act.” (Emphasis in the original.)
This document was signed by Ekis, and was notarized by the Menard records clerk on October 20, 1972. Copies were addressed by him to the “Segwick [sic] County Circuit Court” and to the district attorney’s office. His attached certificate of service indicates that he requested they be mailed by first class mail.
By letter dated October 24,1972, the clerk of the court of common pleas acknowledged receipt and filing of the motion. The letter advised Ekis that deputy county attorney David Calvert was assigned to the case, and that Ekis should write to him for further information. It concluded, “If we can be of assistance, please let us know.”
On October 27, 1972, deputy county attorney Calvert wrote to Elds:
“Dear Mr. Ekis:
The State of Illinois and the State of Kansas are both members of the Agreement on Detainers. If you will comply with the Agreement on Detainers and make a request that you be brought back for trial, you will be returned to the State of Kansas for a speedy trial pursuant to law.
Your case will not be dismissed by this office.
Very truly yours,
/s/ David P. Calvert
DAVID P. CALVERT
Deputy County Attorney”
Ekis made no response to the letter from the county attorney’s office. His only effort to take advantage of the court clerk’s offer of assistance was to ask, in January, 1973, where he could get a copy of “certain chapters of the Kansas Revised Statutes [sic].” His next official step came almost eleven months later, when he filed a second motion to dismiss on September 10, 1973. The same day the Sedgwick county attorney’s office made application to secure temporary custody of Ekis for trial under Article IV (a) of the Agreement on Detainers.
At this point Ekis resisted returning to Kansas, both by requesting the governor of Illinois to deny the Kansas request, and by suit in federal court. Kansas instituted extradition proceedings, but these were held in abeyance pending the federal litigation. On about July 26, 1974, in an unreported decision the United States Court of Appeals for the Tenth Circuit affirmed the district court’s decision dismissing the action because of Ekis’ failure to exhaust his state remedies. Kansas promptly reinstituted its extradition proceedings, and eventually Ekis waived extradition. He was returned to Kansas on October 2,1974.
Once here, Ekis in due course moved once again through counsel to dismiss the complaint against him, claiming denial of a speedy trial. The court of common pleas conducted a hearing on the motion at which Ekis testified. That court concluded it had no jurisdiction to enter an order of dismissal with prejudice, as would be required if the motion should be sustained. Accordingly it certified the question to the district court. There a second hearing was held, with Ekis again testifying. The district court overruled the motion, making the following critical findings:
"As stated in the Agreement on Detainers, the agreement is to be liberally construed so as to effectuate its purposes. By liberally construing the Agreement, it might be held that defendant substantially met the requirements of Article 3 (a) were it not that after being informed of the deficiencies in his request, he chose to ignore them and not see that corrections were made.
“After having been advised by letter from Mr. Calvert that his motion of October 27 [sic], 1972, was deficient and after being advised by the Clerk of the Court of Common Pleas that assistance was available, the defendant sought no advice from either.
"The defendant is in no position to criticize the Illinois authorities and blame their errors and shortcomings for his plight when the means of correcting mistakes were available to him.
“The defendant cannot be heard to say that he has complied or substantially complied with the Agreement on Detainers when he has continually refused to agree with or comply in any way with parts thereof, i. e., Article 3, paragraph (e). The Agreement must be complied with or substantially with in whole and not in part. The defendant has not complied with the provisions of the Agreement on Detainers.”
This action followed. We heard the case on the pleadings, exhibits, briefs, and the arguments of counsel. In addition we have before us the original files from the court of common pleas and the district court, and transcripts of the hearings held in both courts.
Petitioner’s speedy trial claim has two aspects. The first is based strictly on the interstate Agreement on Detainers, the second on the speedy trial guarantees of the Sixth Amendment and § 10 of our own Bill of Rights. Since his primary argument is directed toward the Agreement we shall deal with that aspect first.
As adopted in this state the Agreement appears as K. S. A. 22-4401 through 22-4408. Article III (part of 22-4401) provides in pertinent part:
“(a) Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of a party state, and whenever during the continuance of the term of imprisonment there is pending in any other party state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint: Provided, That for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance. The request of the prisoner shall be accompanied by a certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.
“(b) The written notice and request for final disposition referred to in paragraph (a) hereof shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail, return receipt requested.
“(c) The warden, commissioner of corrections or other official having custody of the prisoner shall promptly inform him of the source and contents of any detainer lodged against him and shall also inform him of his right to make a request for final disposition of the indictment, information or complaint on which the detainer is based.
“(d) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall operate as a request for final disposition of all untried indictments, informations or complaints on the basis of which detainers have been lodged against the prisoner from the state to whose prosecuting official the request for final disposition is specifically directed. The warden, commissioner of corrections or other official having, custody of the prisoner shall forthwith notify all appropriate prosecuting officers and courts in the several jurisdictions within the state to which the prisoner’s request for final disposition is being sent of the proceeding being initiated by the prisoner. Any notification sent pursuant to this paragraph shall be accompanied by copies of the prisoner’s written notice, request, and the certificate. If trial is not had on any indictment, information or complaint contemplated hereby prior to the return of the prisoner to the original place of imprisonment, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.
“(e) Any request for final disposition made by a prisoner pursuant to paragraph (a) hereof shall also be deemed to be a waiver of extradition with respect to any charge or proceeding contemplated thereby or included therein by reason of paragraph (d) hereof, and a waiver of extradition to the receiving state to serve any sentence there imposed upon him, after completion of his term of imprisonment in the sending state. The request for final disposition shall also constitute a consent by the prisoner to the production of his body in any court where his presence may be required in order to effectuate the purposes of this agreement and a further consent voluntarily to be returned to the original place of imprisonment in accordance with the provisions of this agreement. Nothing in this paragraph shall prevent the imposition of a concurrent sentence if otherwise permitted by law.”
In section 22-4402 the term “appropriate court,” where a request under the Agreement must be filed, is defined as the district court.
The readily apparent “deficiencies” in Ekis’ request, referred to in the district court findings previously quoted, were these:
(1) His motion, addressed to the “circuit court,” was filed in the court of common pleas and not in the district court as the Agreement requires. Ekis was aware of this by virtue of the acknowledgment sent him by the clerk. (2) His motion was not accompanied by the required certificate of the Menard officials as to the status of his sentence and his parole eligibility. (3) The motion was mailed by ordinary first class mail, as requested by Ekis, and not by certified or registered mail with return receipt requested, as required by the Agreement. (4) The motion gave no hint that it was meant to be a “notice” and “request for final disposition” under the Agreement. Those terms were not used, and the Agreement was not mentioned. The main thrust of the motion was for dismissal, with the alternative request for a speedy trial tacked on as an apparent afterthought.
A fifth deficiency, the failure to waive extradition, was noted and relied on by the district court, and will be discussed later.
While we have dealt but little with the Agreement on Detainers we have had numerous cases arising under the Uniform Mandatory Disposition of Detainers Act, K. S. A. 22-4301 et seq. In State v. Dolack, 216 Kan. 622, 533 P. 2d 1282, we recognized the parallel between the two acts, with the Detainers Act applying to prisoners within the state and the Agreement to those in foreign institutions. In Dolack we reiterated that “To obtain a speedy trial guaranteed by Section 10 of our Bill of Rights, as legislatively defined by either of the two Acts just referred to, it is incumbent upon an accused incarcerated in a penal institution to comply with all the provisions of the Act applicable to his incarceration.” (p. 634.) Thus, a prisoner may not invoke the strict 180 day limitation of either act if, for example, he sends his motion to the wrong court (Brimer v. State, 195 Kan. 107, 402 P. 2d 789), or serves the prosecutor but fails to send a copy to the court (State v. Otero, 210 Kan. 530, 502 P. 2d 763), or files in the proper court but fails to serve the prosecutor (Townsend v. State, 215 Kan. 485, 524 P. 2d 758).
The first four deficiencies in Ekis’ original motion might be regarded as somewhat technical. But, as the district court observed, “By liberally construing the Agreement, it might be held that defendant substantially met the requirements of Article 3 (a) were it not that after being informed of the deficiencies in his request, he chose to ignore them and not see that corrections were made.” We think it significant that Ekis took no further steps to clarify his position, either by instituting a new, formally correct proceeding or by correcting the deficiencies in the one already started. (We note that Article III [d] of the Agreement speaks of the notice and request as a “proceeding being initiated by the prisoner.”) His failure to act in response to the Calvert letter is readily susceptible to an inference that he was ambushing the Kansas authorities. He wanted his demand to be on file, but didn’t want anyone to know it was a proceeding under the Agreement.
From the prosecution’s point of view it was vitally important to know whether or not Ekis was proceeding under the Agreement. If he was, not only did the 180 days begin to run but, more importantly, his request would have had the effect under Article III (e) of waiving extradition. Ekis’ motion, besides lacking the usual trappings of an “Agreement” request such as restricted mail and the prison officdal’s certificate, appeared to demand that Kansas extradite him. Indeed, in his motion he heavily emphasized his reference to the Uniform Extradition Act. There was certainly nothing in the motion remotely approaching a waiver of extradition. Had Kansas attempted to secure Elds’ presence without extradition, in reliance on a purported waiver under the Agreement, Ekis might well have resisted and persuasively argued that his motion did not constitute a waiver because it was not made under the Agreement. This was the gist of the district court’s finding in the last paragraph quoted above that “he has continually refused to agree with or comply 'in any way with parts thereof, i.e., Article 3, paragraph (e).”
We conclude that the Kansas officials were justified in treating Ekis’ first motion as just what it was, i. e., a motion for dismissal or in the alternative for a speedy trial. As will be discussed later, it carries some weight in determining whether he was denied a speedy trial in the constitutional sense, but it was not a notice and request under the Agreement.
Although now urging that he substantially complied, Ekis testified before the district court that at the time he prepared and filed his motion he had never heard of the Agreement on Detainers. This factor distinguishes the present case from those cited by the petitioner in which it was held that a good faith effort by a prisoner to proceed under the Agreement is all that is required of him. See, People v. Esposito, 37 Misc. 2d 386, 238 N. Y. S. 2d 460; People v. Masselli, 17 A. D. 2d 367, 234 N. Y. S. 2d 929; Pittman v. State, 301 A. 2d 509 (Del.); State v. Lippolis., 101 N. J. Super. 435, 244 A. 2d 531, In each of those cases it was held that where a prisoner made known to the officials his intent to proceed under the Agreement, their subsequent failure to comply with the act could not frustrate his rights. The burden of their failure was visited, and rightly so, on the prosecution.
Here, of course, Ekis gave no indication to the Menard officials that he wished to proceed under the Agreement; according to him, he did not then know of the existence of the agreement. Just when he became familiar with it we cannot tell. We do know that in September, 1973, he availed himself of the provisions of Article IV (e) to move the governor of Illinois to disapprove the Kansas request for custody. Rut when he delivered his original motion for mailing he did not request the prison officials to attach the necessary certificates, to send the motion to the right court, to use restricted mail, or even in general terms to “do what was necessary.” On the contrary, he specifically requested mailing to the addressees he chose and the use of ordinary first class mail. While it may be suggested that the Menard records clerk should have advised Ekis how to comply with the Agreement, we do not see that any such obligation rested on him at that time. The Agreement (Art. Ill [c]) requires the prison officials to advise an inmate of the existence of a detainer and of his right to make a request for final disposition. (The record does not disclose whether or not that was done.) If an inmate expresses a desire to take advantage of the Agreement the officials have a duty to assist him. They have no* general duty to render unsolicited legal advice on an inmate’s litigation not connected with a proceeding under the Agreement.
But even assuming the records clerk was derelict in his duty to advise Ekis, we do not think Ekis can claim any advantage from such delinquency. Whether or not Ekis knew of the Agreement when he filed his motion of October 20, 1972, within two- weeks he had received the Calvert letter of October 27, 1972. That letter apprised him of the existence of the Agreement and that, in the view of the prosecutor in charge of his case, his motion did not comply. It would have taken very little effort on Ekis’ part to ascertain and cure the deficiencies in. his motion, but he chose not to do so. He cannot, under these circumstances, allege “substantial compliance” with the Agreement.
Ekis attempts to explain his inaction by saying that he relied on advice given to him by the assistant warden at Menard, a Mr. Sympson. He tells inconsistent stories as to how this advice was given to him. Before the court of common pleas he testified that after receiving the Calvert letter he was unable to get in touch with the records clerk so he asked for an interview with the warden:
"... I was called before the Warden. I informed him — I took a copy of Mr. Calvert’s letter with me and informed him what had happened. I asked him if there was a deficiency, what it was. He stated that [the record clerk] had signed my motion, in other words, and mailed it to the State of Kansas. That was all I needed. That was complying with the law. All I needed to do was wait to be brought back to trial.”
Before the district court, on direct examination, he repeated his story about the interview in the warden’s office after being called in. On cross-examination, however, the “interview” was put in a different setting:
“Q. Now, after you got back your letter from Mr. Calvert, which has been admitted as Defendant’s Exhibit B, you testified you did everything you could to follow up on your request. Tell me in detail what did you do.
"A. When I received a letter from Mr. Calvert, I placed an interview request with the assistant warden, Mr. Sympson. I approached Mr. Sympson —I never did get a call for the interview — I approached Mr. Sympson in the yard while he was making his rounds and I explained the circumstances.
I even produced the letter from Mr. Calvert.
“Q. In any event you had a talk with Mr. Sympson?
“A. Yes.
“Q. What did you do after that?
“A. After I received the word from Mr. Sympson, I did nothing.
“Q. And why was it that you did nothing?
"A. That Mr. Sympson informed me if [the records clerk] received and notarized my request and mailed it to the State of Kansas, that was sufficient. For me to wait for Kansas authorities for a speedy trial.” (Emphasis added.)
We are inclined to believe this latest version of the “interview,” since Ekis would have no reason to fabricate such a story if it did not happen that way. The earlier, twice-told version — of an office interview, pre-arranged, with the Calvert letter in hand and his prison file available to the warden — is the more self-serving. The later version, spontaneously put forward, casts grave doubt on the validity, if not the very existence, of the warden’s advice. At a chance encounter in the prison yard Ekis might possibly have had the Calvert letter in his pocket, but the warden certainly did not have an opportunity to look at his file to determine whether Ekis had made a valid request under the Agreement. The warden might even have assured Ekis that a duly notarized request was all that a prisoner was required to submit, assuming that if it was a request under the Agreement the records clerk would take care of the rest of the formalities. He would have no way of knowing that the document Ekis was referring to was not in form or in contemplation a request under the Agreement.
In any event, whether Ekis received the purported advice or not, it was the offhand advice of a layman. We do not believe he was entitled, on the basis of such advice, to ignore the Calvert letter and assume that the prosecutor didn’t know what the law required. A simple letter to Calvert would have enlightened him. We therefore hold that petitioner cannot rely on the Agreement on Detainers because of his failure to comply with its terms, either literally or in substance.
There remains the question of whether Ekis was denied a speedy trial in the constitutional sense. Although his petition raises the issue, petitioner doesn’t argue it with any great vigor. He concedes that any delay since September 10, 1973, is not chargeable to the state because he has since that date been using every resource available to keep from being brought to trial. Further, the time from the offenses in late 1970 to mid-1972 cannot be considered because he was a fugitive. The question then is whether the fourteen month period from his arrest in June, 1972, to the state’s application for temporary custody in September, 1973, is such an inordinate delay as to deny him the constitutionally guaranteed speedy trial.
In State v. Otero, 210 Kan. 530, 502 P. 2d 763, we reviewed the leading authorities on the subject and held:
“A defendant’s right to a speedy trial cannot be established by any fixed inflexible rule but is to be determined by the balancing of a number of factors in which the conduct of both prosecution and defendant is weighed.” (Syl. IT 2.)
That holding was based in large part on Barker v. Wingo, 407 U. S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182, which set out the “balancing” test to be applied and mentioned the four primary factors to be weighed: Length of the delay, reason for the delay, the defendant’s assertion of his rights, and prejudice resulting to the defendant.
Looking at those four factors in this case we cannot say Ekis has been denied a speedy trial. The fourteen month period in itself is not excessive — our statute of limitation is two years. And see, e. g., State v. Brooks, 206 Kan. 418, 479 P. 2d 893 (seventeen months); State v. Stanphill, 206 Kan. 612, 481 P. 2d 998 (thirty-nine months). The reason for the delay is, of course, the fact of his incarceration in another state. While the state was required to act with reasonable diligence, we think in this case the Kansas officials were reasonable in their expectation that Ekis would make the next move. (Compare, State v. Dolack, supra.) When he did make a further move, the state acted the same day. As to his “assertion of his rights,” his demand was at best ambiguous. While he said he wished to be tried, he didn’t waive extradition in his motion and declined to enter such a waiver by a formal proceeding under the Agreement. The state promptly offered him a speedy trial if he would comply with the Agreement, and attempted within eleven months to give him one even without compliance. His demand weighs in his favor, but not very heavily. Finally, Ekis makes no showing of prejudice resulting from the delay. In none of his motions, pleadings, exhibits or testimony does he suggest any witness or other evidence which has become inaccessible to him. Any claim of prejudice must be based on pure speculation. Applying the balancing test of Barker v. Wingo we have no hesitation in finding that petitioner has not been denied a speedy trial.
Petitioner has not demonstrated a lack of jurisdiction in the Sedgwick county district court or that his custody by the respondent sheriff is unlawful. The writ prayed for is therefore denied.
approved by the court.
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|
The opinion of the court was delivered by
Kaul, J.:
This is an appeal from a summary judgment rendered for the defendant-appellee (Security Benefit Life Insurance Company), in an action for damages for invasion of privacy. At the time judgment was rendered the trial court had before it the pleadings, a deposition of Galen D. Senogles, plaintiff-appellant, taken by defendant, supporting affidavits filed with defendant’s motion, the briefs of the parties, and the proceedings of a pretrial conference.
The question presented is whether communication to a third party of medical information received by defendant from plaintiff’s physicians, under authorization given by plaintiff in connection with an application for life insurance, was made under such circum stances that the transmission thereof was qualifiedly or conditionally privileged.
The facts are not in dispute and are substantially set forth in the trial court’s memorandum decision which we quote in pertinent part:
“This is an action to recover $50,000 in damages from the defendant life insurance company, based upon an alleged invasion of the right of privacy of the plaintiff and an alleged breach of confidential relationship between the plaintiff and defendant, all based upon the transmittal by the defendant of certain medical information applicable to the plaintiff to Medical Information Bureau, an association which provides under certain terms and conditions medical information to member life insurance companies for certain purposes in connection with underwriting risks.
“The facts applicable to defendant’s motion for summary judgment are undisputed. On or about February 22, 1972, plaintiff applied to the defendant for a policy of health insurance, application No. 0040037. The application for insurance signed by plaintiff included the following authorization:
“ 7 hereby authorize any licensed physician, medical practitioner, hospital, clinic or other medical or medically related facility, insurance company or other organization, institution, or person, that has any records or knowledge of me or my health, to give to the Security Benefit Life Insurance Company any such information.’
“As a result of the authorization, the defendant did receive medical information applicable to plaintiff. The information received was to the effect as follows: 1
“(a) Chest pain, significant but ill defined, no cause indicated, not listed elsewhere — information obtained from attending physician, surgeon, hospital, sanatorium or clinic — within first year, but not known to be present at time of inquiry or application;
"(b) Cardiac arrhythmia, premature contractions or not listed elsewhere (this includes any arrhythmia, not listed elsewhere, except sinus arrhythmia)— information obtained from attending physician, surgeon, hospital, sanatorium or clinic — within first year, but not known to be present at time of inquiry or application;
“(c) Asthma, primary or allergic — information obtained from attending physician, surgeon, hospital, sanatorium or clinic — under treatment, not surgical —within second year.
“Pursuant to its contract with M. I. B., the aforementioned medical information was forwarded to M. I. B. on or about April 10, 1972, in a coded form.
“M. I. B. is a nonprofit, unincorporated trade association formed to conduct a confidential exchange of information between offices of about 700 member life insurance companies. All members of the association are required to comply with rules and regulations which include a requirement that all information received through the M. I. B. will be held confidential and will be kept in such a manner that its confidential character will be maintained. The rules further provide that a member insurance company can obtain information from M. I. B. only after first obtaining medical authorization from their applicant. Pursuant to this rule, Union Central Insurance Company requested medical information applicable to the plaintiff and received the medical information summarized above in a coded form. By reason of the medical information received by the defendant, and pursuant to the terms of the conditional receipt issued by the defendant, the defendant declined to accept plaintiff’s application for insurance and returned to plaintiff, the premium paid by the plaintiff at the time of his application. Plaintiff gave no instructions to any representative of the defendant concerning their authority to secure medical information and what defendant could do with such medical information, other than the written instructions set forth in the insurance application. The only information received by the defendant based upon plaintiff’s written authorization set forth in the insurance application were the medical reports from Dr. R. M. Brooker dated March 17, 1972, Dr. James K. L, Choy, dated March 2, 1972, and Dr. Horace T. Green, dated March 27, 1972, copies of which are attached as exhibits herein,” (Emphasis supplied.)
The trial court then proceeded to discuss some of our recent decisions in actions for invasion of right of privacy; namely, Johnson v. Boeing Airplane Co., 175 Kan. 275, 262 P. 2d 808; and Munsell v. Ideal Food Stores, 208 Kan. 909, 494 P. 2d 1063. The trial court relied primarily upon our opinion in Munsell in reaching its decision.
At oral argument, defendant’s counsel, with consent of plaintiff’s counsel, agreed to and has supplied us with a copy of the constitution and rules of the Medical Information Bureau, hereafter referred to as M. I. B.
Before dealing with the precise question presented, we should observe that the trial court rendered its judgment solely on the basis of the existence of a qualified privilege. It did not consider whether plaintiff actually had a case for invasion of right of privacy and, if so, whether plaintiff had shown any damages suffered as a result thereof. In this connection defendant says plaintiff was unable to set forth any damages. Plaintiff takes the position that malice is not in the case; that it was neither necessary to plead it nor prove it. In his deposition plaintiff admitted that he had given no written or oral instructions to defendant, or its agents, other than what appears in the authorization included in the application. In this connection we note that in the authorization, heretofore set out verbatim in the trial court’s memorandum decision, the plaintiff authorizes inter alia an insurance company or other organization to give to defendant any records or knowledge of defendant’s health. Neither party attempts to explain the effect, if any, of including “insurance company or other organization” in this context within the authorization. We shall give it no significance in our consideration. Neither shall we give consideration to the fact that no express limitation on the use or further communication of medical information was imposed upon defendant by the terms of the authorization.
In view of the posture of the case as presented on appeal we shall confine our decision to the sole question whether, under the particular facts and circumstances shown, the transmission of the medical information to M. I. B. was made in a manner which rendered it qualifiedly privileged. We are not concerned with any question relating to the unauthorized disclosure by a physician concerning a patient which might constitute an actionable invasion of the patient’s right to privacy.
Although litigation was scarce until recent times, a citizen’s right to privacy has long been recognized in this jurisdiction. (Kunz v. Allen, 102 Kan. 883, 172 Pac. 532, L. R. A. 1918D, p. 1151, decided in 1918.) Right of privacy was defined in Johnson v. Boeing Airplane Co., supra, wherein we held:
“The doctrine of the ‘right of privacy’ is defined as ‘the right to be let alone,’ the right to be free from unwarranted publicity, the right to live without unwarranted interference by the public in matters with which the public is not necessarily or legitimately concerned, and the right to be free from unwarranted appropriation or exploitation of one’s personality, private affairs and private activities.” (Syl. f 1.)
The definition in Johnson was quoted with approval in Munsell wherein we pointed out the distinction between the torts of defamation and invasion of privacy and set out and adopted what was said to be the general rule concerning invasions of the right to privacy in these words:
“. . . It is clear from the decisions that only unwarranted invasions of the right of privacy are actionable. The corollary to this rule is that a ‘warranted’ invasion of the right of privacy is not actionable. Appellant urges that we recognize and apply here the rule that the right of privacy does not prohibit the communication of any matter though of a private nature, when the publication is made under circumstances which would render it a privileged communication according to the law of libel and slander. The rule is recognized in 41 Am. Jur., Privacy, § 20, p. 940; Brents v. Morgan, 221 Ky. 765, 299 S. W. 967, 55 A.L.R. 964; and in the first comprehensive article on the subject of the ‘Right to Privacy’ in 4 Harvard Law Review 193, at page 216 published by Samuel D. Warren and Louis D. Brandéis in 1890. We hold that the rule is sound and should be applied in the case at bar.” (p. 923.) (Emphasis supplied.)
Based upon the Munsell case the trial court reasoned that under the circumstances attendant herein the communication by defendant to M. I. B. was qualifiedly privileged and, in the absence of an affirmative allegation of malice, entered judgment for the defendant. We believe the reasoning of the trial court was sound and that it made a proper disposition of the case.
Plaintiff argues that Munsell is distinguishable on the facts and that the holding therein does not support the trial court’s decision. We agree the facts surrounding the publication in Munsell are not “four square” to the facts shown in the instant case, but the general principles of law upon which the decision in Munsell was predicated are applicable here.
Our decision in Munsell was followed by our opinions in Dotson v. McLaughlin, 216 Kan. 201, 531 P. 2d 1; and Froelich v. Adair, 213 Kan. 357, 516 P. 2d 993, in which the thrust of Munsell was elaborated upon. In Froelich and Dotson we further defined the boundaries for the protection of privacy and gave recognition to the analysis of the right of privacy and the four tort classifications made by Professor Prosser (Prosser, Law of Torts, [4th Ed.], Right of Privacy, § 117, p. 802) and incorporated in Restatement of the Law (Second), Torts, Tentative Draft No. 13, § 652. The classifications are set out in our holding in syllabus ¶ 1 in Dotson and need not be repeated here. The Froelich case dealt with what has been labeled “Intrusion Upon Seclusion” (§ 652B), while in Dotson we held that plaintiff had failed to make out a case under any of the concepts defined in Restatement, supra.
In the Dotson opinion we spoke of our holding in Munsell in this fashion:
“. . . There we held that only unwarranted, invasions of the right of privacy are actionable and that the right of privacy does not prohibit the communication of any matter though of a private nature, when the publication is made under circumstances which would render it a privileged communication according to the law of libel and slander.” (p. 206.)
In the Froelich opinion we reaffirmed what was said in Munsell to the effect that the right of privacy does not prohibit communication of a matter of a private nature when the publication is made under circumstances which would render it a privileged communication according to the law of libel and slander.
The principal thrust of plaintiff’s argument on appeal is that the Munsell case is not on “all fours” with the case at bar and that, therefore, the trial judge erred in basing his decision on Munsell. From what has been said it is readily apparent that even though Munsell may not be on “all fours” factually, the principles of law enunciated therein are applicable and control the disposition of the instant case. Concerning an action for invasion of privacy, based upon the communication of matters of a private nature, Munsell settled these principles — (1) a warranted invasion of privacy is not actionable; (2) communication or publication of a matter even of a private nature made, under circumstances which would render it a privileged communication according to the law of libel and slander, will not support an action; and (3) generally, the issue whether a publication is qualifiedly privileged is a question of law to be determined by the court.
We turn then to the precise question whether the circumstances under which the instant communication was made were such as to render it qualifiedly privileged.
The subject of qualified privilege is not new to this court. In the early case of Kirkpatrick v. Eagle Lodge, 26 Kan. 384, the distinction between absolute and qualified privilege was pointed out and it was held that the publication in question, which consisted of allegedly false and libelous statements made about the plaintiff in connection with his expulsion from a fraternal organization, was made on an occasion and in such a manner as to prevent an inference of malice, which the law draws from unauthorized communications, and affords a qualified defense, depending upon the absence of malice. Following Kirkpatrick numerous cases appear in our reports wherein qualified privilege has been found to exist in various factual situations and liability was denied in the absence of proof of malice. (e. g., Sowers v. Wells, 154 Kan. 134, 114 P. 2d 828; Stone & Hutchinson Daily News, 125 Kan. 715, 266 Pac. 78; and Richardson v. Gunby, 88 Kan. 47, 127 Pac. 533.) In such cases the burden of proof is on the plaintiff to establish malice.
In the case of Faber v. Byrle, 171 Kan. 38, 229 P. 2d 718, 25 A. L. R. 2d 1379, this court elaborated on the distinction between absolute and qualified privilege and considered the latter in depth. The definition of qualifiedly privileged appearing in 33 Am. Jur., Libel and Slander, § 126, pp. 124-126, was quoted and adopted by this court. It reads:
“ . . A communication made in good faith on any subject matter in which the person communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which, without this privilege, would be actionable, and although the duty is not a legal one, but only a moral or social duty of imperfect obligation. The essential elements of a conditionally privileged communication may accordingly be enumerated as good faith, an interest to be upheld, a statement limited in its scope to this purpose, a proper occasion, and publication in a proper manner and to proper parties only. The privilege arises from the necessity of full and unrestricted communication concerning a matter in which the parties have an interest or duty, and is not restricted within any narrow limits.’ ” (p. 42.)
The essence of the above quoted definition is restated in 50 Ana. Jur. 2d, Libel and Slander, § 195, pp. 698-699.
We believe the communication and the surrounding circumstances under which it was made in the instant case falls within the boundaries of the definition. Defendant had an interest in the medical information which it forwarded to the M. I. B. by reason of which, through its membership, it would receive information pertaining to other applicants for insurance. Defendant had a duty under its contract of membership with M. I. B. M. I. B. had a duty to furnish the information to other members when the requirements of M. I. B. rules were met.
Defendant’s counsel vigorously argues that the duty to transmit information was not only required by the contractual relationship between M. I. B. and its members, but was a duty involving the public interest; that it was a legitimate business procedure and vital to the life insurance industry. Defendant’s argument is supported by the record.
In the instant case there is no evidence of bad faith on the part of defendant. It is undisputed that the medical information in question was not divulged to the public or to anyone who did not have a legitimate interest in the health of the plaintiff. Our examination of the rules of M. I. B. and affidavits of Joseph C. Wilberding, Executive Director of Medical Information Bureau, indicates the M. I. B. rules are geared to protect against misuse of the information and that it is to be revealed only to home office employees of member companies who directly pass upon the transaction. Medical information is released to a member company only when it has a signed medical authorization from the involved applicant in its home office files.
In this connection Mr. Wilberding stated in his affidavit:
“In order to maintain the strictest security and confidentiality in the exchange of information, M. I. B. had promulgated a number of rules and regulations which must be adhered to by its members. M. I. B. information is not to be made known to insurance agents or anyone else except the member insurance company home office underwriting or claims personnel. General Rules of M. I. B. provide that before a member insurance company can ask for details of medical codes, said member must have in its home office files signed medical authorization from the involved applicant authorizing the member company to obtain information from other insurance companies.
In addition to the security measures outlined by Mr. Wilberding in his affidavit, rules of M. I. B., which we have examined, provide for strict limitation of the use and possession of code books; that correspondence regarding the meaning of code symbols must be between officers of member companies and the executive director of M. I. B.; and that correspondence regarding medical impairments of applicants may be conducted only by medical directors of other companies.
In a recently published article appearing in Vol. 4 (1974) Rutgers Journal Of Computers And The Law, the author makes a comprehensive analysis of the purposes and activities of M. I. B. He concludes:
“The MIB serves an invaluable function in the life insurance industry by meeting underwriters’ informational needs. The proved ability to set premiums which result from use of the MIB benefits the policyholders. It is they who bear the burden of increased costs if an applicant is assessed for premiums inadequate to cover the risk of loss he represents.” (p. 40.)
We are satisfied there is a valid business interest in the communication in question; it was made in good faith; and M. I. B. and member companies had a corresponding interest; and that the information was limited in scope to a proper purpose, published in a proper manner and to proper parties only. In other words, the communication here falls within the definition of qualified privilege adopted by this court in Faber v. Byrle, supra and followed in other cases cited.
There is no evidence that the privilege accorded to defendant had been lost by abuse thereof. The record reveals that Union Central Life Insurance Company, a member company, had received in its home office information concerning plaintiff and had contacted plaintiff’s physicians. The record further shows, however, that Union Central had previously received an application from plaintiff with the signed medical authorization attached.
We have found no reported decisions involving the activities of M. I. B. However, our attention is directed to Johns v. Associated Aviation Underwriters, 203 F. 2d 208 ( 5th Cir. 1953), where, in applying Texas law, the Fifth Circuit Court of Appeals found the existence of a qualified privilege in a libel action based upon a report of an underwriters association concerning a pilot’s qualifications. The association performed a service for insurance companies similar to that rendered by M. I. B. to its members. The relationship of the parties and the circumstances surrounding the publication of the report were similar to those shown to exist in the case at bar. The court stated the applicable rule in these words:
“A communication made in good faith on any subject, in which the person reporting has an interest and in reference to which he has a duty, is conditionally or qualifiedly privileged if made to a person having a corresponding interest or duty. . . .” (p. 211.)
Apparently, California has encoded the rule concerning qualified privilege in such cases. Mayer v. Northern Life Ins. Co., 119 F. Supp. 536 (1953), was labeled a defamation action. The complaint alleged that defendant (Northern Life) had caused false medical information to be recorded in the records of an agency subscribed to by life insurance companies. The agency is not identified in the opinion, but apparently rendered a service similar to that performed by M. I. B. In applying California law the court said:
“. . . However, the allegations of the complaint disclose that this is a case of qualified privilege within the provisions of Section 47 (3) of the Civil Code of the State of California. . . .” (p. 536.)
The section of the California Code (West’s Annotated, California Codes [Civil] § 47), referred to reads:
“A privileged publication or broadcast is one made—
“3. In a communication, without malice, to a person interested therein, (1) by one who is also interested, or (2) by one who stands in such relation to the person interested as to afford a reasonable ground for supporting the motive for the communication innocent, or (3) who is requested by tire person interested to give the information.”
Since plaintiff had failed to allege malice the court determined that his complaint failed to state a claim upon which relief could be granted and dismissed the action.
We agree with defendant that cases involving agency credit reporting wherein a communication to those with a legitimate business report is generally deemed qualifiedly privileged are analogous in many respects to the case at bar. Kansas cases may be found in Vols. 1-3 Hatcher’s Kansas Digest [Revised Edition-Permanent Supplement], Libel and Slander, § 37; and Vol. 6A West’s Kansas Digest, Libel and Slander, § 44 (4). In the recent case of Kansas Electric Supply Co. v. Dun and Bradstreet, Inc., 448 F. 2d 647 (10th Cir. 1971), The Tenth Circuit Court of Appeals, in applying Kansas law, approved a jury instruction to the effect that credit reports of Dun and Bradstreet were conditionally privileged.
The judgment is affirmed.
Schroeder, J., dissenting.
Fromme, J., not participating. | [
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Per Curiam:
Plaintiff-appellee (Larry Hays) entered into a purchase money contract with defendant-appellant (Moscow Alfalfa Products, Inc.) for 5000 tons of alfalfa pellets to be delivered between June 1, 1972, and June 1, 1973. In his action for damages plaintiff alleges he received 1496 tons of alfalfa pellets, and defendant refuses to deliver the balance of 3504 tons. As an affirmative defense, defendant alleged that performance became impossible and impracticable because of weather and mechanical problems; and that under the terms of the contract it was relieved from performance under such circumstances.
The case was tried to a jury and verdict rendered for the plaintiff.
The contract in pertinent part provided:
“Seller shall be released from performance of this contract during the time and to the extent that performance is impossible or impracticable by reason of any circumstances beyond seller’s control, which, without limiting the generality of this clause, shall include Acts of God, strikes, labor troubles, riot or civil commotion, war, acts of public enemies, embargoes, interference by Governmental authorities, partial or total interruption or shortage or loss of transportation facilities, partial or total destruction of receiving, storage or distribution facilities, labor shortage, or pursuant to law.”
Defendant introduced evidence indicating an unusual amount ,of snow and rain fell during the winter of 1972-1973 causing the hay, which was to have been converted into pellets, to become soggy. The wet hay slowed production and created numerous mechanical difficulties. Defendant contends that under the terms of the contract these conditions excused its nonperformance. De fendant further asserts that inasmuch as there was evidence to support its defense of impossibility or impracticability it was error for the trial court to refuse its requested instruction on this theory.
In accord with the long-standing rule of this court, we believe defendant was entitled to its requested instruction. The governing rule is succinctly stated in Kreh v. Trinkle, 185 Kan. 329, 343 P. 2d 213, wherein we held:
“A party is entitled to have the trial court give an instruction to the jury which is essential to his theory of the case when there is sufficient evidence to support such theory.” (Syl. f 4.)
The issue whether unusually foul weather and related mechanical difficulties were sufficient to release defendant from performance was for the jury to determine under a proper instruction with reference thereto. Contingencies were agreed to by the parties in the contract and instructions as to their application to the facts herein should have been given.
The failure to instruct the jury on defendant’s theory was reversible error. The judgment is set aside and the cause is remanded with directions to grant a new trial.
Fbomme, J., not participating. | [
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The opinion of the court was delivered by
Harman, C.:
Raymond R. Gonzales was convicted by a jury of the offense of rape (K. S. A. 21-3502 [a]). His motion for new trial was denied, he was sentenced and now appeals. His points on appeal involve the admission of evidence of other offenses committed by him and the instructions relating thereto'.
The state’s evidence showed the following; On the evening of March 16, 1974, the prosecutrix, Ms. R, her male companion Rodriquez and appellant drove in an automobile from Scott City to Leoti to locate another female. After considerable searching in and around Leoti they were unable to find her and the trio commenced the return trip to Scott City. Ms. R was seated between the driver Rodriquez and appellant. An argument developed between Rodriquez and appellant concerning advances appellant was making toward Ms. R during the trip. Upon Rodriquez’ instructions Ms. R got into the back seat of the vehicle. As the group neared Scott City appellant leaped into the back seat and held an "object” against the neck of Ms. R. Rodriquez stopped the car and ran into a field. Appellant left the car and engaged in conversation with Rodriquez. Rodriquez refused to return to the car. Appellant reentered it and drove away.
After a short drive appellant stopped the car and got into the back seat with the prosecutrix. He struck her in the face with his fist and told her to undress. She refused; however, following the threat of further blows she removed her clothing and sexual intercourse occurred. Appellant then drove Ms. R to her home and let her out saying that if she told on him he would get some time for it but he would get her when he was released. A short time later Mr. Rodriquez arrived, accompanied by local police. Ms. R was taken to the police station to make a statement and then to a hospital for examination.
A Ms. C testified that on February 3, 1974, she lived with a Mr. Kenmore; that evening appellant came to her home and picked up Kenmore to go drink a beer; she knew who appellant was but had never spoken to him prior to that evening; later appellant returned to the house alone, explaining that Kenmore had passed out in the car; appellant asked her for a drink of water; when she returned from the kitchen with the water appellant was pointing a gun at her; he told her to go into the bedroom and undress; she complied and sat on the bed; however, when appellant came over to her she pushed him away telling him she was pregnant and concerned over the welfare of her child; appellant said if she would kiss him he would leave; he wanted her to promise she wouldn’t turn him in; no sexual intercourse occurred and appellant left the premises. In connection with this incident appellant pled guilty to the offense of aggravated assault in the district court of Wichita county, Kansas.
Ms. F testified that she knew appellant’s brother and he had introduced appellant to her; one evening in November, 1973, appellant came to her house; she unlatched the door and let him in; he told her about a man who would pay money if she would make love to him; she said “No”; appellant stayed awhile and they talked; then appellant grabbed her throat and choked her; while doing so he undressed her; “the sex act” took place between them. The witness further testified: “I cannot recall whether there was any penetration ... I cannot state that there was any penetration. . . .”
The evidence of appellant’s conduct with Ms. F and Ms. C was received over appellant’s objection that it was irrelevant and prejudicial. The trial court instructed the jury this evidence revealed acts similar to that charged in the information and was to be considered only for its bearing upon appellant’s intent, motive and plan of operation. Appellant renews here his objection to the reception of the evidence and he further complains the trial court erred in telling the jury the other acts were similar and could be considered for their bearing upon appellant’s intent, motive and plan of operation. Appellant contends the other acts were in fact dissimilar and revealed no particular pattern or routine; that this evidence did not supply a motive for the offense upon trial, and further that intent was not in issue since a specific intent is not an ingredient of the offense of rape, the only issue in the case being whether the prosecutrix consented to the act of intercourse.
We think appellant’s contentions are answered adversely to his position in State v. Hampton, 215 Kan. 907, 529 P. 2d 127. There evidence of other offenses was received in a prosecution for rape. The probative value of this type of evidence pursuant to K. S. A. 60-455 was discussed at length. We need not iterate that discussion. The evidence was held to be properly received, this court saying:
“. . . the force displayed on similar occasions had a material bearing as to the intent with which the defendant approached the victim in this case, and his plan of procedure should he encounter opposition.” (p. 910.)
In the case at bar there was a display of force by appellant in all three of the acts shown. There was sufficient similarity and under authority of Hampton it must be held the trial court did not abuse its discretion in admitting evidence of the other offenses; further, appellant was not prejudiced by the court’s instructions to the jury as to the purposes for which the evidence might be considered.
The judgment is affirmed.
approved by the court.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
These consolidated appeals are brought by Mari-belle Aicher, Norma Ruth Hoover and Teresa Ann Hand (plairitiffsappellants), the daughters of Richard C. (R. C.) and Ruth Teichgraeber, from orders of the district court of Greenwood County entered in the respective estates of R. C. Teichgraeber, deceased, and Ruth Teichgraeber, deceased.
The probate court of Greenwood Comity found there was no real or personal property in Ruth’s estate, and after admitting her will to probate, denied issuance of letters testamentary to the executor named in her will. Failure of the appellants to appeal from the order of the probate court denying issuance of letters, testamentary to the executor named in Ruth’s will within 30 days, pursuant to K. S. A. 1974 Supp. 59-2404, was the basis of subsequent orders issued by the district court of Greenwood County (1) declaring the appellants’ appeal from the order of the probate oourt admitting Ruth’s will to probate moot in Ruth’s estate, and (2) sustaining a motion for summary judgment in R. C.’s estate by reason of rulings made in Ruth’s estate.
The issue presented concerns the construction of our probate appeal statutes, K. S. A. 1974 Supp. 59-2401 and 59-2404, and K. S. A. 1974 Supp. 59-2287.
A chronological presentation of the facts is necessary for an understanding of the issues on appeal.
Ruth and Richard C. (R. C.) Teichgraeber were husband and wife, living in Eureka, Kansas. They had three daughters, appellants in this action.
On March 1, 1966, Ruth Teichgraeber, 73, made her last will and testament. After providing for payment of her debts, Ruth devised and bequeathed to her husband, R. C., all the rest and residue of her estate. In the event R. C. predeceased Ruth, all the rest and residue was to be divided between appellants, Maribelle Aicher, Norma Ruth Hoover and Teresa Ann Hand, in undivided one-third proportions. R. C. was nominated to be executor, with Ruth’s attorney, Harold Forbes, to be alternate executor if R. C. predeceased Ruth. At Ruth’s request her last will and testament was placed in the vault of her alternate executor and attorney, Harold G. Forbes.
On August 10, 1972, Ruth died testate. R. C. survived and under Ruth’s will R. C. was the sole beneficiary. Ruth’s will was not, however, immediately probated. Instead it remained in the safe of her alternate executor and attorney, Harold G. Forbes.
R. C. was not long a widower, marrying Leona S. Teichgraeber early in January 1973.
Shortly after his remarriage, on January 16, 1973, R. G. informed Mr. Forbes, Ruth’s attorney arid alternate executor, that Ruth had died without owning any property.-Mr. Forbes was also informed that probate was unnecessary so the original last will and testament of Ruth Teichgraeber was destroyed. However a copy was retained and it is included in the record.
On the same day, January 16, 1973, R. C. executed a last will and testament revoking all of his former wills. Under the new will, after providing for payment of his debts, R. C. devised and bequeathed all the rest and residue of his estate to his new wife, Leona S. Teichgraeber. If Leona predeceased R. C., the estate was to be divided in equal portions between six named grandchildren, children of appellants. R. C.’s will provided in clause six:
“In making this, my last will and testament, I am not unmindful of the fact that I have made no provisions for my beloved daughters, Maribelle Aicher, Teresa Ann Hand, and Norma Ruth Hoover, in said will, but during my lifetime I have made substantial gifts to each of my daughters and it is not my desire that any of them share in my estate.”
Harold Forbes, also R. C.’s attorney, was nominated executor.
On March 31, 1973, R. C. died testate. Leona, R. C.’s new wife, survived him as the sole beneficiary of his estate under his will. On May 4, 1973, R. C.’s will was admitted to probate. Mr. Forbes was appointed executor and letters testamentary were issued to him.
On May 8, 1973, Mr. Forbes (the named alternate executor in Ruth’s March 1, 1966, will after the death of R. C.) petitioned the probate court to probate Ruth’s will. Forbes’ petition stated:
“To the best knowledge of the petitioner the deceased at the time of her death left no real or personal property, but petitioner is informed that some of the children and next of kin of said deceased maintain that the deceased was the owner of certain real and personal property at the time of her death and for that reason this petition is being filed for the purpose of probating said will. . . .”
The petition for the probate of Ruth’s will and for the appointment of Harold Forbes as executor thereof, was set for hearing on June 4, 1973.
On May 10, 1973, notice of hearing on the petition concerning Ruth’s will was first published. This notice required written defenses to the probate of Ruth’s will and the appointment of Harold Forbes as executor to be filed by June 4, 1973.
On May 10, 1973, notice was first published that Mr. Forbes bad been appointed and qualified as executor of R. C.’s estate. All demands not exhibited within six months from the date of the first publication were to be forever barred.
On June 4, 1973, the probate court admitted Ruth’s will to probate, but it ordered “the issuance of Letters Testamentary to the executor named in said will should be denied due to the fact that said deceased was the owner of no real or personal property at the time of her death.” (Emphasis added.) In so ruling the probate court found:
“The court further finds that R. C. Teichgraeber, husband of Ruth Teichgraeber, was named to serve as executor of the last will and testament of Ruth Teichgraeber, or in the event that he was unable to serve, Harold G. Forbes was appointed to serve as executor of said last will and testament. The court further finds that to the best knowledge and belief of the petitioner Ruth Teichgraeber died owning no real or personal property an,d that said petitioner has requested that Letters Testamentary be denied. The court further finds that the petition to admit the last will and testament of Ruth Teichgraeber to probate was filed due to the fact that some of the heirs of the said Ruth Teichgraeber maintained that said decedent died owning real or personal property in which they individually were entitled to a share; that hearing of this petition was given to said heirs but said heirs failed to appear or to furnish any evidence that said Ruth Teichgraeber died owning any property. The court further finds that from the evidence introduced the said Ruth Teichgraeber died owning no real or personal property and as a result Letters Testamentary should not be issued. The court further finds that due to the fact that there is no real or personal property in the estate of Ruth Teichgraeber, notice of this order should not be given by publication to the unknown creditors of said deceased.”
On November 29, 1973, (five months and twenty-four days after the probate court’s order) an appeal was perfected from the probate court’s order of June 4, 1973, admitting Ruth’s will to probate but denying letters testamentary.
In the meantime, on November 9, 1973, the appellants’ filed a petition in the probate court in R. C.’s estate setting forth two claims against R. C.’s estate. In their first claim the appellants allege:
“. . . [T]hat the said Ruth Teichgraeber in fact died testate on or about August 10, 1972, leaving a will duly executed and in effect devising and conveying all of her property to petitioners, share and share alike; that said will was duly consented to by the deceased R. C. Teichgraeber; that the deceased caused purported conveyances from the said Ruth Teichgraeber to the above entitled deceased by force, threat, duress and undue influence during the period of time which said Ruth Teichgraeber was incompetent and incapacitated of handling her affairs or understanding the gravity of any business transactions; that the said Ruth Teichgraeber was a literate person but became incompetent and incapacitated to such an extent approximately eight years before her demise that she was unable to write, did not have mental capacity to transact business, make disposition of her property, or fully realize the objects of her bounty.
“That the decedent R. C. Teichgraeber did forcefully motivate and purport conveyances of property from the said Ruth Teichgraeber, including, but not limited to, the following described property: The NE/4, the N/2 of the NW/4, and the N/2 of the S/2 of the NW/4, all in Section 15, Township 25 South, Range 10 East of the 6th P. M., Greenwood County, Kansas, and the NW/4, Section 5, Township 26 South, Range 11 East of the 6th P. M., Greenwood County, Kansas, together with other real property, which property, or the value thereof, is included as a part of the purported estate of R. C. Teichgraeber, deceased; that said decedent wrongfully, willingly, and knowingly violated the provisions of K. S. A. 59-618 with the intent to possess the same as his own rather than as trustee to the detriment of these petitioners.”
The appellants in their second claim allege that R. C. Teichgraeber’s January 16, 1973, will was executed under duress and undue influence; that R. C. did not make contributions or gifts to appellants as recited in his will; and that R. C. did not have the capacity to recognize his heirs and the objects of his bounty.
On November 27, 1973, the appellees filed objections to the claims of the appellants.
On December 6, 1973, the appellants’ claims against R. C.’s estate and the appellees’ objections thereto were transferred to the Greenwood County District Court for hearing pursuant to K. S. A. 59-2402a. There the appellees moved for summary judgment against the appellants, and following oral arguments the district court, on March 18, 1974, granted the appellees summary judgment on the second claim, but overruled the motion as to the appellants’ first claim.
On the 3rd day of May, 1974, a pretrial conference was held in the district court concerning the appeal in Ruth’s estate. After considering the stipulations of counsel, pleadings, contentions, exhibits submitted, and after considering the arguments of counsel presented orally and by letters of May 8 and May 13, the district court entered an order filed June 4, 1974, which recites in pertinent part:
“On the 28th day of May, 1974, this court decided ‘that the appeal from the order admitting the will to probate was timely filed; and further that the appeal from the order denying issuance of letters testamentary to the executor named in the will on the grounds that there were no assets, either real or personal, in the estate was not timely filed’, all as set forth in a certain written memorandum decision dated May 28, 1974.
“Now on this 4th day of June, 1974, the oral motion of proponents to dismiss the appeal of claimants for the reason that by virtue of the order and ruling of this court made on May 28, 1974, the question of whether said will should or should not have been admitted is a moot question, comes on for hearing, both parties appearing by counsel as before. Said matter is duly argued by counsel for the respective parties, and the court, after listening to said arguments and being fully advised in the premises, finds that since the probate court found on June 4, 1973, that the said Ruth Teichgraeber died owning no real or personal property and denied issuance of letters testamentary said finding and order of the court became binding upon all parties, and as a result the question of whether said will should or should not have been admitted to probate is moot.
“The court further finds that the appeal of contestants should be dismissed. . . .
“It Is Therefore Considered, Ordered and Adjudged That the appeal from the order admitting the will to probate was timely filed and that the appeal from the order denying the issuance of letters testamentary to the executor named in the will on the grounds that there were no assets, either real or personal, in the assets was not timely filed.
“It Is Further Ordered That since no appeal was properly taken from the order of the probate court made on June 4, 1973, in which said court found that Ruth Teichgraeber died owning no real or personal property and denied issuance of letters testamentary is an order binding on all the parties and as a result the question of whether said will of Ruth Teichgraeber should or should not have been admitted to probate is a moot question.”
On June 4, 1974, the district court reconsidered its ruling on the first claim filed in R. C.’s estate, originally overruled because the judge thought the motion should not be considered until there was a final determination made of the claimant’s appeal in Ruth’s estate. Upon reconsideration the court found final determination had been made in the appeal in Ruth’s estate, and it sustained the appellees’ motion for summary judgment as it pertained to the first claim of the claimant’s petition in R. C.’s estate.
On the 2nd day of July, 1974, appeal was duly perfected to this court in R. C.’s estate from the order of June 4, 1974, sustaining the appellees’ motion for summary judgment as to the appellants’ first claim; and in Ruth’s estate dismissing the appeal from the probate court of Greenwood County. No appeal was taken from the order of the district court sustaining the appellees’ motion for summary judgment on the appellants’ second claim set forth in the petition filed in R. C.’s estate.
After the appeal in R. C.’s case (No. 47,661) was argued in this court on April 3, 1975, the parties upon request of the court agreed in writing to submit the appeal in Ruth’s case (No. 47,662) upon the record and briefs on file in this court and to consolidate the two cases.
The pivotal point upon which the orders of the district court in each estate were based is the failure of the appellants to perfect an appeal from the order of the probate court refusing to grant letters testamentary to Mr. Forbes, the named alternate executor in Ruth’s will dated March 1, 1966, within a period of 30 days from the order. Since the order of the probate court dated June 4, 1973, denying issuance of letters testamentary was based upon a finding that Ruth Teichgraeber died owning no real or personal property, the appellees contend the order became final, absent a timely appeal, and the appellants are bound by the finding.
Were the appellants obligated to perfect an appeal within a period of 30 days from the order of the probate court in Ruth’s estate, dated June 4, 1973, which denied issuance of letters testa mentary, when a valid appeal was perfected by the appellants within the statutory period of six months from the order of the probate court in Ruth’s estate, dated June 4, 1973, admitting the will of Ruth, dated March 1,1966, to probate?
K. S. A. 1974 Supp. 59-2401 authorizes an appeal to the district court from 22 different enumerated orders, judgments, decrees, and decisions of the probate court. Among these are:
“(1) An order admitting, or refusing to admit, a will to probate.
“(2) An order appointing, or refusing to appoint, or removing or refusing to remove, a fiduciary other than a special administrator.
ft ft ft ft ft
“(22) A final decision of any matter arising under the jurisdiction of the probate court.”
The time within which authorized appeals may be taken from the probate court to tire district court is specified in K. S. A. 1974 Supp. 59-2404. It provides:
“Such appeal may be taken by any person aggrieved within thirty (30) days after the making of such order, judgment, decree, or decision: Provided, That an appeal may be taken within six months from an order admitting, or refusing to admit, a will to probate. The right of appeal shall not be denied nor abridged for failure of the party appealing to present his defenses in the probate court or to appear therein.”
Under the foregoing statute the failure of the appellants to appear in the probate court in Ruth’s estate and present their defenses to the admission of Ruth’s will, dated March 1, 1906, to probate did not affect their right to appeal or present their defenses in the district court.
Once an appeal has been duly perfected, the district court has, and exercises, the same jurisdiction and power as though the controversy had originally been commenced in that court. Pleadings may be filed or amended, and the trial in, and issues to be considered by, the district court are neither abridged nor restricted by any failure to appear, or by the evidence introduced, or the absence or the insufficiency thereof, in the probate court. (K. S. A. 1974 Supp. 59-2408; and In re Marsolf, 200 Kan. 128, 434 P. 2d 1010.) An appeal from an order, other than an order admitting a will to probate, suspends the operation of any order, judgment, decree, or decision appealed from until the appeal is determined or the district court shall otherwise order. (K. S. A. 59-2407.) The failure of the statute to suspend the order of the probate court admitting a will to probate does not, however, affect the authority of the district court to determine the issues on appeal from the probate court de novo. (In re Estate of Barnes, 212 Kan. 502, 512 P. 2d 387.)
The parties concede the basic question presented on the statutory construction of appeals from the probate court is one of first impression. To avoid misinterpretation of our opinion it must be emphasized the appellees raise no question other than those embraced within the statements of points asserted by the appellants. In Ruth’s estate the appellants assert as a statement of points that the trial court erred in:
“1. Finding that timely appeal from Order Admitting Will to Probate is moot because appellants did not appeal within thirty days from matters recited in said order finding no assets in estate and that letters testamentary not issue, which matters were included in said order without notice given.
“2. Failing to determine whether alleged document of March 1, 1966, is admissible to probate as the last will of deceased.
“3. Failing to determine whether deceased had testamentary capacity on March 1, 1966.
“4. Failing to permit trial de novo.”
In R. C.’s estate the appellants assert as a statement of points that the trial court erred in sustaining the appellees’ motion for summary judgment against the appellants’ petition and first claim for the following reasons:
"1. The Court sustained appellees’ motion without any evidence being presented including as to disputed allegations of facts that decedent practiced force, duress and undue influence upon one Ruth Teichgraeber, deceased, who is alleged to have been incompetent and incapacitated and without mental capacity to transact business, make disposition of her property, or fully realize objects of her bounty for approximately eight years before her demise.
“2. The Court erred in failing to hear any evidence in violation of K. S. A. 59-618.
“3. The Court erred in sustaining appellees’ Motion For Summary Judgment by reason of rulings made in the Estate of Ruth Teichgraeber, Deceased, in the District Court of Greenwood County, Kansas, Case No. 22,763.”
It is readily apparent, if the trial court erred on the pivotal point heretofore stated, it erred on all points asserted by the appellants. For the reasons hereafter assigned we find the trial court erred on all of the points asserted by the appellants.
Ordinarily in the probate court, when a will is admitted to probate, the court appoints the named executor or an administrator with the will annexed and fixes the amount of his bond as required by law, if such is required. In fact, K. S. A. 59-2227 specifically provides that upon the admission of a will to probate, “the court shall appoint an executor or administrator with the will annexed.”
K. S. A. 59-701 specifically requires the granting of letters testamentary or letters of administration with the will annexed. It provides:
“Letters testamentary shall be granted to the executor, if any is named in the will, if he is legally competent and shall accept the trust; otherwise letters of administration shall be granted with the will annexed.” (Emphasis added.)
The foregoing statute was before this court for construction in the case of In re Estate of Grattan, 155 Kan. 839, 130 P. 2d 580. There the court held the naming of an executor by a testator in his will should be treated by the courts as a part of his will — much as a devise or bequest should be treated. In the opinion the court said:
“A difference should be noted in the authority of the court to appoint an executor and its authority to appoint an administrator of an intestate estate. In the appointment of an executor the authority of the court comes from the will and the statute (G. S. 1941 Supp. 59-701); in the appointment of an administrator the authority of the court comes wholly from the statute (G. S. 1941 Supp. 59-705). With respect to the appointment of an administrator our statute (G. S. 1935, 22-312), in effect prior to the enactment of the probate code, designated classes of persons having priority of rights of appointment, and although the imperative word ‘shall’ was used, this court in several cases held the probate court had a measure of discretion with respect to the appointment, governed by the thought of having a competent, well-qualified administrator. (Brown v. Dunlap, 70 Kan. 668, 79 Pac. 145.) In the new probate code the former sections of our statutes pertaining to this question were rewritten so as to make more definite, and perhaps enlarge, the discretionary power of the probate court in making the appointment (G. S. 1941 Supp. 59-705). No such enlargement of the discretionary power of the court was made with reference to the appointment of an executor.” (Emphasis added.) (p. 850.)
In the opinion the court approvingly referred to In re Estate of Betts, 185 Minn. 627, 240 N. W. 904, 243 N. W. 58, where the Supreme Court of Minnesota construed a statute similar to ours, and held the statute to be mandatory even though the executor named in the will was a debtor or a creditor of the testator, or had interests hostile to others interested in the estate. Further in the Grattan opinion the court said:
“The well-established general rule is that one is ‘legally competent’ to act as an executor if he is legally competent to make a will; but it appears always to have been the rule that peculiar and abnormal facts disclosed may make it clear that the person designated is not a suitable person. (1 Bartlett’s Kansas Probate Law and Practice, §533, p. 545..)” (Emphasis added.) (p. 853.)
In Ruth’s estate the petitioner Harold Forbes, who was named alternate executor in Ruth’s will dated March 1, 1966, requested upon the hearing to admit the last will and testament to probate that “letters testamentary be issued to Harold G. Forbes, 417 N. Main, Eureka, Kansas, as executor of said last will and testament of Ruth Teichgraeber, deceased.” Both the order setting the matter for hearing on June 4, 1973, and the published notice for hearing on the petition, recited that the petition filed for the probate of Ruth’s will requested “the appointment of Harold G. Forbes as executor” of said will.
While the allegations in the petition to admit the will of Ruth, dated March 1, 1966, to probate may have alerted the probate judge concerning the suitability of Mr. Forbes to serve as executor in Ruth’s estate, the children of Ruth (appellants herein) did not appear, and the matter was not considered by the probate judge.
Had Mr. Forbes been expressly appointed executor in accordance with his request in his petition by the probate court on June 4, 1973, after admitting Ruth’s will to probate, would the appellants have been required to appeal from the order appointing Mr. Forbes executor within 30 days from its entry, to effectuate a valid appeal within six months from the same order admitting the will to probate? We think not.
The executor named by a testate decedent in his or her will gains stature only if the validity of the will is upheld by the probate court, or if an appeal is taken, only upon final determination of the validity of the will. The executor can be appointed (subject to the provisions of K. S. A. 59-2407) only if the validity of the will is upheld. If the will is declared invalid, the named executor loses his status as the nominee of the decedent in such will and the directions of the testator regarding the executor are treated the same as the directions concerning the disposition of his property by bequest or devise in such will. That is, directions given by the decedent in a will which is declared invalid are held for naught, and his estate passes by intestate succession, unless another valid will is established to control the disposition of his estate.
It should be noted the probate court by its order on June 4, 1973, did not expressly appoint Mr. Forbes ,executor or expressly refuse to appoint him executor. The will of Ruth, dated March 1, 1966, was admitted to probate and the probate court expressly found “Harold G. Forbes was appointed to serve as executor of said last will and testament.” The order merely denied letters testamentary to the executor named in the will of Ruth “due to the fact that said deceased was the owner of no real or personal property at the time of her death.” (See, K. S. A. 1974 Supp. 59-2287, analyzed infra.)
Although veiled, some of our decisions confirm that K. S. A. 1974 Supp. 59-2401 and 59-2404 have been construed, where an appeal is taken from an order of the probate court admitting a will to probate within the authorized statutory period (formerly nine months, now six months by amendment, L. 1972, ch. 215, §20), not to require an additional appeal from orders entered incidental to the admission of the will to probate within the shorter period of 30 days. If an appeal from orders entered incidental to the admission of the will to probate, such as the appointment of an executor, is required, the time for appeal from an order of the probate court admitting a will to probate would for all practical purposes be reduced to 30 days. Clearly this was not the intention of the legislature when it enacted the probate appeal statutes.
The case of In re Estate of Osborn, 167 Kan. 656, 208 P. 2d 257, involved a petition to admit a will to probate, wherein an attempt was made to raise an issue concerning die validity of a post-nuptial agreement. There the court was required to determine whether the probate court could, upon such a petition, proceed to adjudicate the validity of the postnuptial agreement at the same time and at the same hearing at which the will was admitted to probate. In the opinion the court said:
“The probate code contemplates that the real purpose of the petition to probate is to determine whether the decedent died testate, to appoint a representative of the estate, and to deal with such other preliminary matters as are clearly incidental thereto. However, it is not the function of the probate court, upon a petition for probate of a will, to adjudicate the rights of the heirs or determine the persons entitled to the estate. It cannot be said that the adjudication of the validity of the postnuptial release was incidental to the probate of the will. That was a matter which directly concerned the rights of the heirs and the determination of the persons entitled to the estate.” (Emphasis added.) (p. 661.)
While the factual situation in the consolidated appeals presently before the court is distinguishable from that in the Osborn case, the significance of the decision in Osborn is that it classifies the appointment of a representative of the estate as one of the matters incidental to the admission of a will to probate.
This court has held in a proceeding to admit a will to probate that the inquiry is limited to the question whether such instrument is entitled to probate, and that prior to a determination of that issue, orders related to proceedings incidental thereto are not res judicata (In re Estate of Reed, 157 Kan. 602, 606, 142 P. 2d 824, Syl. ¶3).
In die case of In re Estate of Buehler, 204 Kan. 830, 466 P. 2d 260, the act of a litigant in qualifying as an executor under a will admitted to probate did not constitute an acquiescence in the order admitting the will to probate so as to bar his right of appeal from the order admitting the will to probate. There two separate appeals were taken by the executor, who had duly qualified, to the district court from orders of the probate court denying admission of a 1960 joint will to probate, and admitting to probate a 1967 will and codicil. No appeal was taken by the executor named in the 1967 will from the order of the probate court appointing him executor.
On a hearing for the probate of a will the burden of proof is upon the proponent of the will to show: (1) The testamentary character of the instrument, (2) the testamentary capacity of the testator, and (3) the due execution of the will in accordance with the statutory requirements. (In re Estate of O’Leary, 180 Kan. 419, 304 P. 2d 547; see also In re Estate of Harper, 202 Kan. 150, 159, 446 P. 2d 738.)
We have been cited to no case, and our research has disclosed none, where appeal from an order appointing an executor, or from an order refusing to appoint an executor, within 30 days was required to perfect a valid appeal from the order admitting the will to probate within the statutory period required for such an appeal.
Based upon the foregoing authorities we hold the appeal taken in Ruth’s estate by the appellants from the order of the probate court admitting Ruth’s will to probate on June 4, 1973, was duly perfected within the statutory period of six months pursuant to K. S. A. 1974 Supp. 59-2401 and 59-2404, and that such appeal was sufficient to challenge the order admitting Ruth’s will to probate and all matters considered by the probate court incidental thereto and covered by the order of June 4, 1973. Accordingly, none of the incidental orders or findings of the probate court in the June 4, 1973, order are res judicata, and the appeal from the order admitting Ruth’s will to probate is not moot. As we shall presently disclose, the finding of the trial court that Ruth died owning no real or personal property upon which to administer remains an open question subject to further judicial inquiry.
The probate judge apparently relied upon K. S. A. 1974 Supp. 59-2287 when it entered its June 4, 1973, order admitting the March 1, 1966, will of Ruth to probate, and denied issuance of letters testamentary to the executor named in Ruth’s will based upon a finding that Ruth was the owner of no real or personal property at the time of her death.
In 1965 the legislature of Kansas enacted a bill entitled: “An Act relating to estates of certain decedents supplementing the Kansas probate code, providing for the dispensing with administration in certain cases, and authorizing the probate court to refuse letters of administration in such cases.” (Emphasis added.) (L. 1965, ch. 353, §§ 1 to 4.) Section 1 of the act is headed “Refusal of letters.” By reason of subsequent amendments in 1968, 1969 and 1970 the enactment now appears as K. S. A. 1974 Supp. 59-2287 to 59-2290, inclusive. (L. 1970, ch. 229, §§ 1 to 4.) Section 59-2287 provides in part:
“(a) The probate court in its discretion, may refuse to grant letters in the following cases:
“(1) When the estate of the decedent is not greater in amount than is allowed by law as exempt property and the allowance to the surviving spouse or minor children under K. S. A. 1969 Supp. 59-403.
“(2) When the personal estate of the decedent does not exceed one thousand five, hundred dollars ($1,500) and there is no widower, widow or unmarried minor children, any creditor of the estate may apply for refusal of letters by giving bond in the sum of not less than the value of the estate. . . .
“(b) Proof may be allowed by or on behalf of the widower, widow, minor children or creditor before the probate court of the value and nature of the estate, and if the court is satisfied that no1 estate will be left after allowing to the surviving spouse or minor children their exempt property and. statutory allowances, or that the personal estate does not exceed one thousand five hundred dollars ($1,500) when application is made by a creditor, the court may order that no letters of administration shall be issued on the estate, unless, upon the application of other creditors or parties interested, the existence of other or further property is shown.
“(c) After the making of the order, and until such time as the same may be revoked, the surviving spouse, minor children or creditor may collect and sue for all the personal property belonging to the estate, if a surviving spouse or creditor, in the same manner and with the same effect as if he had been appointed and qualified as executor or administrator of the estate. . . .
£ ft £ £ £
“(f) Any person who has paid funeral expenses or debts of decedent is deemed a creditor for the purpose of making application for the refusal of letters of administration under this section and is subrogated to the rights of the original creditor.
“(g) Whenever it shall be made to appear to' the court that further proceedings in the administration of an estate pursuant to this section are un necessary, the court shall enter an order terminating the administration of such estate. Such order shall be made without notice, unless the court otherwise orders, and it shall be to the effect that, unless further estate of the decedent be discovered. ... If further estate of the decedent is discovered and administration is had thereon, such administration shall not abrogate or invalidate or otherwise affect any right, title or interest in property transferred or vested pursuant to this section unless the court, for good cause shown, shall otherwise determine and order.” (Emphasis added.)
Apparently the legislature decided summary closing of estates was not adequate as an economical method for distributing assets of small estates without a net value in excess of the exempt property and allowances, or, if no surviving spouse or minor children are involved, the amount of $1,500.
Assuming, without deciding, that the probate court properly invoked the provisions of the foregoing statute, does the statute alter prior case law construing the probate appeal statutes? For the reasons hereafter assigned we hold that it does not.
The basic purpose of 59-2287 is to provide an inexpensive, expeditious method of administering estates that are shown to be within its scope. (See, Smith, “The 1965 Legislature and the Law,” 34 J. R. A. K. 185, 237 [1965]; and Harris, Administration of Estates, 14 K. L. R. 139, 141 [1965].) As we construe 59-2287 proceedings to administer estates shown to be within its scope are subject to conditions and limitations embraced within the enactment itself.
It must be noted the appeal statute K. S. A. 59-2401, while amended in other respects by L. 1965, ch. 346, § 48, was not altered to permit an appeal from an order refusing to grant letters of administration entered pursuant to 59-2287. We do not construe an order refusing to grant letters of administration under 59-2287 as a refusal to appoint a fiduciary. The statute designates the fiduciaries empowered to act. It provides “the surviving spouse, minor children or creditor” may serve in a fiduciary capacity “in the same manner and with the same effect as if he had been appointed and qualified as executor or administrator of the estate.” (59-2287 [c].)
The other appeal statute, K. S. A. 59-2404, was amended in 1972 (L. 1972, ch. 215, §20) to change the time from nine months to six months within which an appeal could be taken from an order admitting a will to probate. It has not been otherwise altered since the enactment of 59-2287.
As we construe 59-2287, a finding of the probate court that the assets of a decedent are insufficient to warrant formal administration is subject to open for further judicial scrutiny, if assets are subsequently discovered or the existence “of other or further property is shown” “upon the application of other creditors or parties interested.” (59-2287 [b].) The court may enter an order terminating the administration of such estate under the limited scope of 59-2287, “unless further estate of the decedent be discovered.” It further provides: “If further estate of the decedent is discovered and administration is had thereon”, meaning formal administration, such administration shall not affect vested property interests or transfers pursuant to the act, unless the court shall otherwise determine and order. (59-2287 [g].)
Under 59-2287 the case of In re Estate of Johnson, 180 Kan. 740, 308 P. 2d 100, relied upon by the appellees, has no application regarding the conclusive nature of findings upon which jurisdiction is based where an appeal is not taken within the time required.
The act contemplates the making of an application to the probate court for the refusal of letters of administration. (See, 59-2287 [a] [2], [b], and [/].) On the facts in this case there was no application made to the probate court that “no letters of administration” be issued pursuant to 59-2287. The named executor in Ruth’s will, dated March 1, 1966, petitioned in Ruth’s estate for the admission of Ruth’s will to probate and that “letters testamentary be issued to Harold G. Forbes.”
Except where title to real estate is affected, the act is silent as to any requirement for notice. (See, 59-2287 [d] [1].)
On the facts in this case, assuming the widower R. C., through his executor, made application to have the provisions of 59-2287 invoked for the refusal of letters of administration, and assuming further that it was proper for him to invoke the provisions of 59-2287 (a question we leave open), the statute affirmatively contemplates that the proof offered to show Ruth had no assets in her estate is subject to open for further judicial scrutiny by the probate court. The act does not contemplate that either the finding be conclusive or that an order refusing to issue letters of administration based thereon be a final order. (59-2287 [g].)
The foregoing discussion of 59-2287 is predicated upon the assumption that its provisions can be invoked where a decedent dies testate. Counsel for the respective parties have not seen fit to honor this court with an adequate brief concerning the impact of 59-2287 on established probate law, the appellants ignoring the statute en tirely, and the appellees devoting slightly more than one-half page to the statute in their brief filed in Ruth’s case. On the issues presented by these consolidated appeals we find it unnecessary to decide whether 59-2287 has application to estates left by decedents dying testate. If it is ultimately determined the statute does have application to testate estates, the extent to which it may alter the application of K. S. A. 59-2227 and 59-701 as heretofore construed by this court must be determined.
Our concern over 59-2287 stems from prior decisions under the probate code which hold there is no absolute requirement that assets be known before an estate can be administered or letters testamentary issued. In re Estate of Preston, 193 Kan. 145, 392 P. 2d 922 is in point. There this court held a claim under an insurance policy constituted such an estate of a nonresident insured decedent as to justify the issuance of letters of administration. 21 Am. Jur., Executors and Administrators, § 41, p. 396 was cited. It held:
“The right to letters of administration in a state other than the domicile of the decedent does not, in all cases, depend upon the existence of tangible assets requiring administration. A mere claim or right to enforce some claim, whether legal or equitable, irrespective of its probable merits, is sufficient foundation for the issuing of letters of administration. Hence, it has been held that a right to letters of administration may be sufficiently predicated on a right of action, a pending action, or even a judgment recovered in favor of the decedent in his lifetime.”
K. S. A. 1974 Supp. 59-2203 although dealing with nonresidence provides: “[Pjroceedings may be had in any county wherein he left any estate to be administered as provided in section 2 [59-805] of this act.” In 33 C. J. S., Executors and Administrators, § 20, pp. 898, 899, it is said:
“It is not necessary that the assets relied on as furnishing a basis for local administration should be of a tangible nature, but a mere claim or right of action arising or existing and enforceable within the jurisdiction is sufficient; and a bona fide claim will support a grant of administration even though it proves invalid or unenforceable after letters are issued. The term ‘estate’ as used in a statute relating to the granting of letters of administration includes all kinds of property which the deceased left at the time of his death.”
A similar result was reached in In re Estate of Brasfield, 168 Kan. 376, 214 P. 2d 305. There a decedent died August 22, 1947, leaving an estate consisting entirely of clothing and personal effects which did not exceed $25 in value. That estate was insufficient to defray funeral and administration expenses. Eight months after decedent’s death tort creditors were allowed to file a petition asking for the appointment of a general administrator, and the court held:
“The provisions of the Kansas probate code require the appointment of an administrator for the estate of an intestate resident decedent when petitioned for by creditors of the estate even though its known assets appear to be inconsequential and of little value.” (Syl. f 2.)
This court reasoned that to hold creditors must exhibit demands in probate court and at the same time hold those same creditors, because known assets of the estate appear to be inconsequential, are to be denied an opportunity of ever establishing their claim or attempting to bring assets into the estate to pay them would lead to results so incongruous and unfair and so lacking in fundamental justice as to preclude any necessity for further discussion.
Another case on the point is, In re Estate of Shultz, 180 Kan. 444, 304 P. 2d 539. There it was held the probate court of Pratt County had jurisdiction to appoint an ancillary administrator with will annexed where the nonresident decedent’s estate consisted of a damaged automobile valued at $75 and a tort claim.
The avenue of approach taken by the appellants in the probate court in these cases, consolidated on appeal, is to bring property into Ruth’s estate by way of a claim filed in the estate of R. C., and show the will of Ruth dated March 1, 1966, is invalid and not entitled to probate because it was executed by Ruth at a time when she was mentally incompetent and incapacitated. If the appellants are successful on their approach and sustain their burden of proof on these matters, they must then show that Ruth died leaving a valid will executed while she was mentally competent, leaving her property in equal shares to them (as alleged), or, failing in this, that Ruth died intestate.
The appellees contend the claim filed by the appellants in Ruth’s estate is a collateral attack upon the order of the probate court entered June 4, 1973, in the estate of Ruth, citing In re Estate of Johnson, supra, and In re Estate of Bertrand, 188 Kan. 531, 363 P. 2d 412.
The appellants contend they allege ultimate facts in their first claim filed in the estate of R. C. which raises an issue as to whether R. C. in his lifetime held the assets of Ruth in constructive trust for the benefit of Ruth, such assets now being in the estate of R. C. To support their constructive trust theory the appellants cite In re Estate of Johnson, 176 Kan. 339, 270 P. 2d 293; Grubb, Administrator v. Grubb, 208 Kan. 484, 493 P. 2d 189; and Winsor v. Powell, 209 Kan. 292, 497 P. 2d 292.
The situation presented herein was considered in Hildenbrand v. Brand, 183 Kan. 414, 327 P. 2d 887. The rules applicable herein were succinctly stated in the first three syllabi of that opinion as follows:
“1. Generally speaking, when the purpose of an action or claim is to get something out of an estate of a decedent, the probate court has exclusive original jurisdiction of the matter and the action or claim must be filed in that court.
“2. Generally speaking, when the purpose of an action or claim is to bring something into an estate of a decedent, that is, when an estate has a claim which its personal representative is attempting to enforce, the action is to be filed in the district court or some other court of competent jurisdiction.
“3. The general rule mentioned in the preceding paragraph of this syllabus is subject to the following qualification and exception: When one estate
seeks to recover from another estate — that is, attempts to get something out of it — the action or claim must be filed in the probate court notwithstanding that the successful enforcement thereof results in bringing something into the claimant estate, the reason being that the action or claim seeks to get something out of defendant estate.”
Here the appellants, for and on behalf of the estate of Ruth, are attempting to get something out of the estate of R. C., and their action or claim was filed in the probate court in R. C.’s estate within the period of the non-claim statute. (K. S. A. 1974 Supp. 59-2239.) If their claim is successfully enforced it will result in bringing assets into the estate of Ruth. The claim was properly filed in the probate court in the estate of R. C. because it seeks to get something out of R. C.’s estate.
The claim filed by the appellants in the estate of R. C. is not a collateral attack upon the judgment of the probate court entered June 4, 1973, in Ruth’s estate. The appellants have a valid appeal pending from the order of the probate court admitting Ruth’s will to probate. Other incidental findings and orders entered by the probate court on June 4, 1973, in Ruth’s estate are not res judicata.
The fact that the appellants will be required to prove essentially the same facts to show the invalidity of Ruth’s will dated March 1, 1966, and the claim filed in the estate of R. C., is not controlling. The issue in one case is the mental capacity of Ruth to execute a valid will, and in the other the overreaching of R. C. to acquire the property of Ruth at a time when Ruth was mentally incompetent and incapacitated to protect herself.
For the reasons heretofore stated the district court erred in sustaining the appellees’ motion for summary judgment on the first claim in the estate of R. C.
The judgment of the lower court in each of the cases, consolidated here on appeal, is reversed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Habman, C.:
This is an action by a farm employee against his employers to recover for personal injuries sustained when a horse he was riding stumbled and fell. Plaintiff has appealed from an order sustaining defendants’ motion for summary judgment.
In his petition plaintiff Dean W. Mechtley alleged that on April 23, 1972, while in the employ of defendants Ben Price, Jr., and his wife Ruth Price at their three thousand acre cattle ranch near Reading, Kansas, and while riding a horse owned and furnished him by defendants, the horse fell on top of him fracturing his leg and ankle. Plaintiff alleged his injuries were the result of defendants’ negligence; the horse fell because defendants failed to keep it properly shod; further that prior to the accident plaintiff requested defendants to reshoe the horse and defendant Ruth Price had promised to remedy the problem but this had not been done at the time the horse fell.
Defendants’ answer denied any acts of negligence and pleaded contributory negligence and assumption of risk on plaintiff’s part.
Depositions of all parties were taken prior to the filing of the motion for summary judgment. That of plaintiff revealed the following: Plaintiff, twenty-nine years of age, had been around horses most of his life; he had worked in the cattle and farming business for about thirteen to fifteen years; he owned his own saddle and had owned several horses; he was experienced in riding horses both domesticated and wild, shod and unshod, and had competed in riding events in rodeos; he had trimmed horses’ hooves and had shoed them but did not consider himself very good; riding horseback was almost a daily occurrence with him; he had on three previous occasions had working horses which he was riding stumble and fall; on two occasions the footing was slick due to water or ice; he was aware that when a horse’s hooves were grown out the horse was more likely to stumble whether shod or unshod and there was greater risk of falling with an unshod horse.
With respect to “Oakie”, the horse which stumbled and fell upon the occasion in question, plaintiff further testified that about ten days or two weeks previous thereto, he had noticed Oakie was missing one shoe and his feet were overgrown; whereupon he called these facts to Mrs. Price’s attention; Mrs. Price asked plaintiff if he would shoe Oakie; plaintiff answered he would rather not inasmuch as Oakie’s front feet were crooked and he was doubtful whether he could properly shape Oakie’s hooves; Mrs. Price then replied she would secure the services of a farrier the next day but this never occurred; he talked to Mrs. Price a time or two later about the matter when he noticed a shoe lying on a farm road but he received no further answer from her; he had ridden Oakie almost daily since he had first spoken to Mrs. Price about shoeing Oakie; Oakie would stumble upon occasion whether shod or not and had once stumbled while plaintiff was riding him.
According to plaintiff on the day in question Mrs. Price directed him to go to a pasture and bring to the bam any cows which looked like they were about ready to calve; plaintiff drove in a pickup truck to the pasture in question to perform this task; Oakie was also in the "same pasture; there were other saddle horses on the ranch available for his use but he preferred Oakie for several reasons — this horse was the closest at hand for the task as well as the most suitable and was easy to catch; plaintiff caught Oakie and was riding him when the accident occurred; he was herding two cattle at a walk back toward the bam when one of them turned; plaintiff reined Oakie to go after the cow and as Oakie turned he stumbled and fell on plaintiff’s leg before plaintiff could extricate his foot from the stirrup of the saddle; at the time Oakie had on only one shoe; the day was a bright clear one and the terrain was level and dry; in plaintiff’s opinion Oakie stumbled because his hooves were overgrown and he was not fully shod.
Defendant Ruth Price testified she could not recall whether plaintiff spoke to her about having Oakie shod prior to the accident; Oakie had a crooked left front leg; she kept a horse for herself to ride; there were other horses available on the ranch for plaintiff to' ride. Defendant Ren Price, Jr., testified he did not know how many horses he owned in April, 1972. Each defendant had been in the cattle business all his life.
Defendants’ motion for summary judgment was grounded on the contention the depositions on file revealed there was no genuine issue as to any material fact in the case and defendants were entitled to judgment as a matter of law.
In sustaining the motion the trial court recognized plaintiff’s theory of recovery as being defendants’ failure to furnish plaintiff a safe place to work mid safe tools with which to work, a horse being a tool used in cattle ranching. It found that plaintiff was experi enced in riding horses in connection with the cattle business; that plaintiff knew Oakie was not properly shod but he preferred to use Oakie for this particular work when other horses were available and continued to use Oakie with knowledge of the risk occasioned by want of proper shoeing; that plaintiff knew as much about horses as did defendants and knew the condition of Oakie’s feet at the time in question and the risk and danger involved; further there were no material facts in dispute and plaintiff assumed the risk of the defects complained of.
On appeal the question is whether the trial court erred in granting summary judgment for defendants under K. S. A. 60-256 (c). Generally before summary judgment may be granted, the record before the court must show conclusively that there remains no genuine issue as to a material fact and the moving party is entitled to judgment as a matter of law. A mere surmise or belief on the part of the trial court, no matter how reasonable, that a party cannot prevail upon a trial will not warrant a summary judgment if there remains a dispute as to a material fact which is not clearly shown to be sham, frivolous, or so unsubstantial that it would be futile to try the case. The manifest purpose of summary judgment is to obviate delay where there is no real issue of fact. A court should never attempt to determine the factual issues on a motion for summary judgment, but should search the record for the purpose of determining whether factual issues do exist. If there is a reasonable doubt as to their existence, a motion for summary judgment will not lie. A court, in making its determination, must give to the party against whom summary judgment is sought the benefit of all inferences that may be drawn from the facts under consideration (Sly v. Board of Education, 213 Kan. 415, 516 P. 2d 895).
This court has adopted strict standards governing the propriety of summary judgment in negligence actions. See, e. g., Smithson, Executor v. Dunham, 201 Kan. 455, 441 P. 2d 823. Generally the rule which has evolved is that an issue of liability in a negligence action may be decided as a matter of law only when it can be said that reasonable persons cannot reach differing conclusions upon the same evidence. See Vaughn v. Murray, 214 Kan. 456, 459, 521 P. 2d 262, 267. In the present case the issue is whether it can be said reasonable persons could not differ from the trial court’s factual determination that plaintiff assumed the risk of falling and consequent injury when he rode the unshod horse at the time in question.
Plaintiff-appellant asserts a fact question remained unresolved on the issue of his full appreciation of the risk involved in doing that which he did. Assumption of risk, in the law of master and servant, is a phrase commonly used to describe a term or condition in the contract of employment, either express or implied from the circumstances of the employment, by which the employee agrees that certain dangers of injury, while he is engaged in the service for which he is hired, shall be at the risk of the employee (Blackmore v. Auer, 187 Kan. 434, 357 P. 2d 765). Assumption of risk generally bars recovery by an employee who knows of the danger in a situation but nevertheless voluntarily exposes himself to that danger. In Kleppe v. Brawl, 181 Kan. 590, 313 P. 2d 227, 63 A. L. R. 2d 175, we said:
“. . . [Assumption of risk arises through implied contract of assuming the risk of a known danger; the essence of it is venturousness; it implies intentional exposure to a known danger; it embraces a mental state of willingness; it pertains to the preliminary conduct of getting into a dangerous employment or relation; it means voluntarily incurring the risk of an accident, which may not occur, and which the person assuming the risk may be careful to avoid; it defeats recovery because it is a previous abandonment of the right to complain if an accident occurs.” (p. 594.)
It should be noted the knowledge and appreciation of the risk involved is to be judged by a subjective standard, by knowledge attributable to the individual plaintiff and his situation (Prosser, Law of Torts, 4th ed., 1971, § 68, p. 447).
Appellant’s testimony strongly belies his contention he did not fully apprehend the risks involved in riding an unshod horse. He had a specialized knowledge of riding cattle ponies, extending over a period of years, and their propensity to fall under certain conditions. He had taken care of many horses and their grooming. He specifically acknowledged Oakie did precisely what he knew Oakie was apt to do with long, unshod hooves and that the result was something he knew was a risk of riding a horse under those circumstances. His complaint to Mrs. Price was, “We better get that horse shod, he is going to fall”. He acknowledged there is a normal risk of a horse stumbling with a rider in a pasture which danger is enhanced when the horse’s hooves are long and unshod. He was riding Oakie nearly every day and his knowledge of Oakie’s condition appears to have been equal to, if not greater than, that of appellees. Under appellant’s own statements it simply cannot be said a question of fact remained regarding his knowledge and appreciation of the risk raised from riding Oakie.
Appellant also urges a question of fact remained unresolved as to whether defendant-appellees ordered him into a dangerous situation. He further argues the assumption of risk doctrine was not available to appellees as they had promised to remedy the defect after appellant had complained of it. The two contentions are interrelated. First of all, it may be noted that appellant was not directed or ordered to use Oakie in the task at hand as contended. He was simply told to herd certain cattle back to the bam. The choice of horses to be used was his. As found by the trial court from the undisputed facts before it there were other horses available for appellant’s use. The matter of the location and suitability of other horses on the ranch which appellant could have used was gone into in considerable detail in appellant’s deposition. He had a pickup truck with which to drive to the various locations where horses were available. Although appellant advanced certain reasons why the other horses were not as attractive for use as Oakie on the particular occasion, the matter was summed up in this fashion in his testimony:
“Q. For your job is it a fair statement that there were several different horses available you could use if you wanted to?
“A. Yes.”
Appellant was not directed or required to use any particular horse so it can scarcely be maintained there was a disputed factual issue whether he was ordered into a situation of danger. He was fully aware of the situation and the means at hand with which to do the requested work and he voluntarily chose to use the horse Oakie when others were available.
A more serious question is presented in appellant’s contention the assumption of risk defense was not available to appellees because they had promised to remedy the defect after being advised of the defect by appellant. Appellant relies on the rule stated in Hernandez v. Bachand, 199 Kan. 82, 427 P. 2d 473, as follows:
“. . . [T]here is an exception to the general rule of tha assumption of risk in those cases where an employee, after complaint has been made of a defective or dangerous condition, is induced to continue his service for a reasonable time by reason of his employer’s promise to remedy the defect. [Citations.] The application of this exception to the rule presupposes that the employee has complained of the dangerous condition to his employer; that the employer has promised to remedy the dangerous condition; and that the employee has thereafter continued his service for a reasonable time in reliance upon the employer’s promise.” (p. 86.)
See, also, Prosser, supra, § 68, pp. 450-451.
Thus there are three requisites which bring the exception into play. Assuming appellant’s evidence supplies the first two, a complaint and a promise to remedy the dangerous condition, what about the third — that appellant was induced to continue in service for a reasonable time in reliance upon appellees’ promise? This essential seems not to have been established — in fact appellant’s admissions negative the entire notion. Appellant never testified he was induced to remain in appellees’ employ because of their assurance Oakie’s feet would be shod nor did he testify he used Oakie only upon the promise that he was going to be shod. The conclusion is inescapable appellant gave little if any consideration to safety hazards, or requirements. His interest lay in the ease with which he could bring the cattle into the barn. He specifically testified other horses were available which he could have used. The preference for Oakie was his own. Oakie was not shod the next day after the complaint as promised. Appellant twice called the matter to Mrs. Price’s attention thereafter without receiving any verbal acknowledgement of his complaints and yet he continued to use Oakie daily. It can scarcely be said he was induced to remain in service for a reasonable time in reliance on any promise to repair.
This court has always recognized .a close kinship of the assumption of risk doctrine to that of contributory negligence but more recently, because attempts to harmonize or differentiate them have sometimes resulted in confusion, has confined the former to controversies involving the master-servant relationship. See Smith v. Blakey, Administrator, 213 Kan. 91, 101, 515 P. 2d 1062. We have no case expressly holding that the exception to the assumption of risk doctrine described above in Hernandez is inapplicable where reasonable alternative tools or instrumentalities were available for an employee’s use, yet that rule seems implicit in the element of continuance of service in reliance upon the employer’s promise. No rule is to be uncritically applied to reach an illogical result under the particular circumstances. Long ago, in U. P. Rly. Co. v. Estes, 37 Kan. 715, 16 Pac. 131, this court held that if an employee voluntarily places himself in a dangerous position unnecessarily when there is a safer place he could have selected, and injury occurs to him by reason of his choice, he is held to be contributorily negligent and cannot recover for such injury. Other cases which have followed the rule in Estes are Railroad Co. v. Tindall, 57 Kan. 719, 48 Pac. 12; Carrier v. Railway Co., 61 Kan. 447, 59 Pac. 1075; and Stevens v. Allis-Chalmers Mfg. Co., 151 Kan. 638, 100 P. 2d 723.
From all the foregoing we oonclude the exception to the assumption of risk rule as stated in Hernandez is not applicable where reasonably safe alternative instrumentalities or methods of work are available for an employee’s use and we so hold. Here there were alternative horses which appellant might have used with a reasonable expectation of safety and the rule relied upon for recovery is not applicable.
The record before the trial court revealed no genuine issue as to any material fact in the case and it correctly entered summary judgment. That action is affirmed.
approved by the court.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Brewer, J.:
These cases all arose under the stock-killing law of 1874. They were commenced before a justice of the peace, and judgments having been there rendered in favor of the railroad company, were taken on appeal to the district court. In the latter court judgments were rendered in favor of the plaintiffs for the value of the stock killed, and attorney_fees th'e justice’s as well as the district court. And this presents the first question, yyjjgj-g tLe stock-owner is defeated in the trial before the justice, and appeals to the district court, can he, if successful in the latter court, recover anything for the services of his attorney in the trial before the justice? We think he may. The statute provides that the owner may recover from the railway company the value, “together with a reasonable attorney-fee for the prosecution of the suit.” Now the judgment finally rendered on the appeal establishes the fact of plaintiff’s right to recover, and that upon the merits of the controversy the justice erred. The attorney-fee is for the prosecution of the suit; and this covers the entire prosecution from the commencement until its final termination'in the district court. The company was in the wrong for not paying the claim. Its wrong compelled the action. The skill and ability of its counsel delayed the plaintiff in his recovery. Should it profit by causing this delay ? Suppose such skill and ability should prolong the contest in the district court, hang one jury, secure an adverse verdict from another, and only be defeated after a long and wearisome litigation: would it be right that the plaintiff should recover no larger attorney-fee than if without struggle it had suffered the party to take the judgment to which he was entitled ? The extent of the litigation, as well as the amount in controversy, is an important factor in determining the proper fee to be awarded. It must be a “reasonable fee” —reasonable, considering all the elements in the particular case which affect the proper amount of the attorney’s compensation. The law may be a stringent one. Perhaps its very stringency was necessary to make it adequate protection to those who are sought to be protected by it; or it may be, that it is unwisely and needlessly stringent. But these matters are for legislative consideration. The question with the courts is one of power, and not of policy. And that question having been solved heretofore in favor of the law, it only remains to apply its various provisions to the cases as they arise.
A second matter of alleged error is in the proof of the defie]Qdant’s incorporation. The bill of particulars filed with the justice alleged that the defendant was a corporation duly organized under the laws of the state of Kansas. Service was made upon an agent of said defendant. The transcript from the justice shows that on the trial the parties appeared by counsel. The defendant filed a written demurrer, which reads, “And now comes the defendant above named, the M. R. Ft. S. & Gulf Railroad Co., by its attorneys,” etc. • This being overruled, a trial was had, and judgment rendered in favor of the defendant. In the district court the record recites that the parties appeared by their counsel, naming them, mutually waived a jury, and submitted the case to the court for trial. After the judgment the defendant filed a motion for a new trial, which reads, “Now comes the defendant and moves,” etc., and is signed “Blair & Perry, attorneys for defendant.” And in this court the M. R. Ft. S. & G. Railroad Co. files its petition in error, alleging that judgment was rendered against it in the district, court in an action wherein the defendant in error was plaintiff'and it was defendant. Now upon these facts alone, and without considering the character or sufficiency of the testimony actually offered on the trial, we think the plaintiff in error has no cause of complaint in regard to the proof of its-incorporation.
Counsel in this, as in some other cases lately before us, have relied upon the case of Stanley v. Farmers Bank, 17 Kas. 592, which decided that in a justice’s court the existence of a corporation may be put in issue by the defendant without denial under oath, and even without any written denial; and have deduced therefrom, that in an action in such court against a corporation it devolves upon the plaintiff to-prove the corporate existence of the defendant, unless there be some express admission or waiver thereof by the defendant, ignoring the fact that when a party comes into court he thereby admits his own existence. When a plaintiff comes into court and alleges that it is a corporation, it binds itself by that allegation, but does not bind the defendant, and the latter may challenge the fact. Because a petition has been filed, and a summons served, the defendant does not therefore of necessity admit that there is a plaintiff back of it. He may deny the fact that there is such a plaintiff, and compel him to come forward and reveal himself. But a party may not come into court and deny his own existence. He may deny his liability to suit, his power to act, or responsibility for his actions; but coming in, he admits that he exists. So that when a bill of particulars is filed, stating a cause of action against an alleged corporation, if the party upon whom service is made comes in and pleads, and goes to trial as the defendant sued, there is no need of the plaintiff’s proving that it is the defendant, and that it exists. The defendant thus coming in has admitted its own existence. The case of Seaton v. C. R. I. & P. Rld. Co., 55 Mo. 416, is exactly in point. In it the court says: “ If a corporation appears to a suit, it cannot deny its own existence. It either exists, or is a nonentity; and if it be a nonentity, the whole proceedings would be coram non judice, and utterly void. When a corporation brings suit, the defendant may deny its legal existence, and thus render it necessary for its existence to be proven. But when the corporation appears as defendant, such appearance is conclusive evidence of its legal existence for the purposes of the pending case,” See also, Hudson v. St. L. K. C. & N. Rly. Co., 53 Mo. 525; W. U. Tel. Co. v. Eyser, 2 Col. 141; M. C. D. Co. v. The State, &c., 43 Ind. 236.
We see no other matters that require notice; and no errors appearing in the rulings referred to, the judgment will be ■ affirmed.
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The opinion of the court was delivered by
Horton, C. J.:
On the 25th of September 1877, this court, upon the motion of Hon. Willard Davis, the attorney-general for the state, allowed an alternative writ of mandamus against the Republican River Bridge Company, of Davis county, commanding the company to reconstruct a bridge built in 1867 over the Republican river, on the public highway leading from Fort Riley to Junction City, in Davis county, or show cause why it had not done so. On the return of the process the defendant appeared, add moved to quash the writ, on the ground that the facts stated therein were not sufficient in law to constitute a cause of action against the company. The writ recited the original charter of the company, filed in the office of the secretary of state on November 11th 1864, and which set forth that the object for which the company was formed was the erection of a toll-bridge over the Republican river at the place above named; the joint resolution of congress, of 2d March 1867, releasing from the military reservation at Fort Riley all that part of the reserve lying and being between the Republican and Smoky Hill rivers, to-wit, about 4,000 acres of land, and granting the same to the state of Kansas to aid in the construction of a bridge over the Republican river, on the public highway leading through the reservation, upon the condition that the grant should be accepted by the state, with a guaranty given, by an act of the legislature, that the bridge should be kept up and maintained in good condition, and be free to the use of the government of the United States for all transit purposes forever, and without tolls or charges; the special law of the legislature of 26th February 1867, accepting the grant of congress, obligating the state to comply with the terms of the joint resolution, and authorizing the bridge company to proceed under its charter to construct the bridge; that by said act of February 26th it became the duty of the company to complete the bridge, within one year from the approval of the same, and deposit with the governor satisfactory surety and guaranties to fully indemnify the state against any loss or losses by reason of the guaranty given by the state to the United States, and its right to receive therefor a patent for all said lands so released from the military reservation and granted to the state. The writ further recited, that the bridge company accepted from the state the grant of land; that it constructed the bridge as required by the act of February 26th 1867; that it gave its guaranty and obligation to indemnify the state against any loss or losses by reason of its legislative guaranty to the United States, and afterward received and accepted a patent for the 4,000 acres of land; that it neglected, failed and omitted to keep up and maintain the bridge in good condition and repair, but allowed and suffered it to rot, decay, and become unsafe, and finally to fall into the river, a total wreck, and that since then it had failed, neglected and omitted to reconstruct and rebuild the bridge.
The question is raised by the motion of the respondent, which is equivalent to a demurrer to a petition in an ordinary action, whether, under the joint resolution of congress, the act of the legislature of February 26th 1867, and the facts recited, any duty has been omitted which can be enforced by a writ of mandamus against the company. The question to be decided is, not whether the state is entitled to relief from the unfortunate position in which it is liable ,to be placed by the failure of the respondent to keep up and maintain the bridge over the Republican river in a good condition, but whether it is entitled to the relief demanded, that is, a writ of mandamus to have the bridge rebuilt and forever kept in repair.
A writ of mandamus may only issue to an inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins as a duty, resulting from an office, trust, or station, (civil code, § 688, as amended laws 1870, ch. 87, p. 28,) and may not issue in such cases where there is a plain and adequate remedy at law. (Code, § 689.) Now if there is a specific duty imposed by law upon the respondent, resulting from an office, trust, or station, and no other adequate or specific remedy is provided for its enforcement, the writ of mandamus may be granted in this case; but if no such duty is enjoined, or if, being enjoined, there is another adequate remedy, then the "writ does not lie. As the object of the bridge company, under its charter, was the erection of a toll-bridge, there is no obligation, either imposed or assumed, on the part of the corporation, within the terms of its charter, to maintain forever a bridge of the character named in the application before us. It cannot be said in this case, that the state may proceed by mandamus to compel the company to rebuild on the ground that the company, having entered upon the exercise of its charter franchises, owes a duty to the public which it cannot, at its caprice, abandon. It is conceded by the learned counsel for the state, that the charter of this company is permissive, and not obligatory; that the company could build the bridge or not, at its election; that the mere exercise of a permissive right to build the bridge would not create the legal duty to maintain it forever; and that the company is not precluded by anything in its charter from abandoning its franchise, at any time. If then, this action cannot be maintained under authority to compel the company to exercise its corporate powers originally granted or obtained by its charter, the significant query is at once suggested, what duty is specially enjoined, which has been omitted ? Counsel for the state say the bridge in question was built under the act of the legislature of 26th February 1867, and not under its original charter. This is true; and we turn to that act to ascertain the specific duties, if any, commanded to be performed. They were, first, to complete the bridge within one year from the date of the approval of the law; second, to notify the governor of the state immediately of its completion; and third, to deposit with the governor satisfactory surety and guaranties, fully indemnifying the state against any loss or losses by reason of the guaranty given by the state to the United States. All these duties were promptly and fully complied with, in 1867, to the satisfaction of the governor of the state; and there is. no special duty left undone expressly enjoined by the said act.
The counsel for the state argue, however, that the acceptance of the act of 26th February 1867, by the bridge company, carried with it the implied agreement or understanding that the company would keep the bridge constructed by it in repair for all time. Admit that this was the expectation of the law-makers; yet they thought fit to protect the state’s interests only by a personal bond. A part of the land might have been retained as security; or a lien for repairs of the bridge might have remained upon the land for all time; and in other ways indemnification could have been amply secured. The state however deemed it advisable to accept a personal bond as its sole security; and the only relation the bridge company sustained to the state, arising upon the bond, is purely a contract relation, for the violation of which there is an adequate remedy at law. We look in vain through the charter of the company, the joint resolution of congress, and the act of 1867, for any duty unperformed, specially enjoined by law, resulting from an office, trust, or station. Even the implied obligation was secured, or attempted to be secured, by a penal bond, which, when taken, was acceptable. Under this view, there is no legal duty existing which can be enforced by a writ of mandamus. That the venture taken by the state is likely to prove unprofitable; that the means furnished by congress to build and maintain the bridge are exhausted; that the lands have been divided up and sold to bona fide holders; that the bridge is now a wreck, and useless; that the bond of indemnity is probably worthless, and that the state may be required to make good its legislative guaranty of 1867, are strong arguments of the recklessness and improvidence of the legislation which culminated in conferring upon the defendant the vast estate of lands it received; but these facts in no way establish any principle, or make plain any duty, upon which the relief prayed for can be granted. That the action of the legislature in 1867 was unusually hasty and inconsiderate, is evidenced by the mere statement, that the law providing for the transfer to a private corporation of all the valuable lands granted to the state to aid in building and maintaining a bridge over the Republican river, was approved on the 26th of Eebruaxy 1867, and the joint resolution of congress, making the grant of these lands, and upon which the action of the state was taken, was not approved until four days thereafter*, to-wit, March 2d. As soon as the vote had been taken' at Washington upon the joint resolution, the special act of 1867 was hurried through our legislature. That body was so anxious to give to the defendant these lands, upon the terms of the said act, that it did not defer action till the resolution of congress was formally approved by the president. That such indecent haste should finally result in trouble, vexation, and perhaps disaster to the state, is neither unexpected nor startling. A mere recitation of the facts of this case affords a seeming verification of the scriptural proverb, “They who sow the wind, shall reap the whirlwind.”
If we adopt the conclusion which has been suggested, that instead of the relation between the state and the bridge company being one purely of contract,' special powers or franchises were bestowed upon the defendant by the special act of 1867, which it is the right of this court to enforce to the full extent of compelling the company to rebuild and maintain forever the bridge, then we are met by the insurmountable barrier, that special acts of our legislature conferring corporate powers are forbidden and void. (Art. 12, §1, State Const.) “A power that would not be a corporate power when exercised by an individual, becomes a corporate power when exercised by a corporation.” Gilmore v. Norton, 10 Kas. 491. Viewing the case in the most favorable aspect we can for the state, and assuming the act of 26th February 1867, in regard to the rights conferred on the defendant, was valid, we have nothing between the state and the company, as a security for the protection of the former, but the obligation of the latter, given in pursuance of section 4 of said act of 1867; and as obligations arising upon contract merely, and involving no trust, cannot be enforced by mandamus, 'the motion of the respondent must be sustained, and this action dismissed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution for burglary in the second degree, and petit larceny. The defendant was charged with breaking and entering in the night-time a certain “saloon building,” situated in Atchison, Atchison county, in which was kept, stored and deposited at that time certain valuable goods, wares, and money, with the intention of stealing the same, and that he did steal $15.56 thereof. The defendant was found guilty of both the burglary and the larceny, and was sentenced to confinement and hard labor in the penitentiary' for the period of five years and three months. He now appeals to this court. He claims that the judgment of the court below ought to be reversed — first, because he was arrested on a defective warrant; second, because it is not burglary, nor any other offense, to break and enter a “saloon building;” and third, because of misconduct on the part of the county attorney while making his opening argument to the jury. We must decide all these questions against the defendant. The warrant was amply sufficient. Burglary may be committed in a “saloon building.” And, although the conduct of the county attorney, may have been censurable, yet we do not think that under the circumstances of this case said conduct is quite sufficient to authorize or require a reversal of the judgment below. This action we think was prosecuted under section 68 of the act relating to crimes and punishments. That section provides among other things as follows:
“Every person who shall be convicted of breaking and entering in-the night-time * * * any shop, store, booth, tent, warehouse, or other building, or any boat or vessel, in which there shall be at the time some human being, or any goods, wares, or merchandise, or any valuable thing kept or deposited, with intent to steal, or commit any felony therein, shall on conviction be adjudged guilty of burglary in the second degree.” (Gen. Stat. 330.)
The question as to the misconduct of the county attorney arose in the court below in the following manner: After the defendant had been found guilty of burglary and larceny, he moved the court for a new trial and set forth among other grounds for a new trial the following:
“ Misconduct of the county attorney trying the case, in stating to the jury in his opening argument the following language which was objected to by the defendant at the time: ‘Everybody knows that this man is a felon’ — meaning and referring to one James R. Tracy, who was a witness for defendant herein — there being no evidence that the witness was ever accused of any felony, or other crime, and there being no evidence herein that said Tracy was ever convicted of a felony.
“And also, the further misconduct of the prosecuting attorney in the argument of this case before the jury, in this: that in the course of the argument by the county attorney of this case to the jury the defendant’s counsel objected to some improper statements made by the said county attorney, and that the said county attorney used the following language to the defendant’s attorney, who objected, the same having been said in a loud voice in front of the jury, and during the argument of the county attorney, to-wit: ‘Yes, you may keep on objecting. I never knew a guilty man to be on trial for a felony who* did not object, and object, until he wore striped clothes in the' penitentiary.’ That all of said statements of the county attorney were objected to at the time by defendant.”
On the hearing of said motion for a new trial, the defendant read in evidence the affidavits of himself and of his attorneys, W. R. Smith and H. C. Solomon. These affidavits stated and showed that the county attorney committed the misconduct charged in said ground for a new trial. It is also stated in the record, that—
“No evidence was introduced on the trial of said cause showing or tending to show that James R. Tracy, one of the witnesses for the defense, had ever been convicted of any felony or infamous crime, and no witness was sworn or gave testimony directly as to his reputation for truth and veracity. But there was testimony showing that the witness Tracy, and the defendant Comstock, who had then been in Atchison only five days, had been together frequently, and become acquainted, had frequently met, and generally at saloons and gambling-houses. Tracy, on direct examination, testified that he had seen Comstock with money every day since his arrival in town; but on cross-examination said he had only seen him with money twice — which question as to his having money in his possession after reaching town was material in said cause; and the witness, in giving his testimony on the witness stand, used profane and improper language, and was censured therefor by the court.”
The county attorney read in evidence an affidavit of his own', on the hearing of said motion, which affidavit (omitting the title and venue) is in words as follows:
“C. F. Cochran, of lawful age, having been first duly sworn, deposes and says, he is the county attorney of Atchison county, and as such tried and prosecuted said case in said court. And affiant further says, that upon the argument of said case he did not say to the jury, *Everybody knows this man is a felon’ — in commenting upon the testimony of James R. Tracy, a witness sworn on behalf of defendant on the trial, but that affiant did say in substance, that the ‘ face, manner, appearance, and testimony of said witness must have convinced the jury that his statements and testimony were absolutely untrue, a tissue of peijury and falsehood; that no defendant could hope to benefit his cause by producing such a witness, for the reason that no jury would pay much attention to such a defense, but would regard it as the effort of one felon to protect another from proper punishment.’ In such argument affiant further says he did not say, ‘ he never knew a guilty man to be on trial for felony who did not object and keep on objecting until he wore striped clothes.’ But affiant did say in substance, after defendant’s objection was overruled by the court, (the court had determined .the argument within the evidence and the issue, and told affiant to proceed,) ‘I now desire to proceed without further interruption. You object, as is usual with felons overtaken and brought to trial. I never have known one yet who did not object from the time he was arrested until, in striped clothes, he perhaps for the first time earned his bread by honest labor.’”
This is all the evidence that was introduced on the hearing of said motion. The court after hearing the evidence overruled the motion, and then sentenced the defendant as above stated. What evidence was introduced on the trial, except as above stated, we have no means of knowing, as it has not all been brought to this court. It may have proved that the defendant was guilty beyond all possible doubt. And what other proceedings were had, or other occurrences transpired during the argument of the case, except that the county attorney opened the argument, the two counsel for the defendant followed, and the county attorney closed, we do not know, as the record does not show. Evidently however the court below knew everything that transpired in the case from the beginning to the end. The court knew what evidence was introduced on the trial, and knew just what transpired during the argument of the case; and knowing it all, overruled the motion for a new trial. We must therefore presume that there was ample evidence to prove that the defendant was guilty, and that the statement of the county attorney as to what transpired during the argument of the case is the true statement, as such statement is most in consonance with the ruling of the court on the motion for a new trial. In fact, we must presume all the facts and circumstances to have been such as would favor the correctness of the ruling of the court, except where the record itself affirmatively shows otherwise. Now with all these presumptions in favor of the correctness of the ruling of the court below, with the presumption that the statement of the county attorney as to what transpired during the argument is the correct statement of what occurred, can we say that the court below committed any material error in overruling the motion for a new trial ? We think not. ■ It is proper for a jury to scrutinize the “face, manner, appearance, and testimony” of a witness who testifies before them. And therefore it cannot be improper for an attorney, in a proper manner, to call the attention of the jury to the same. It was probably improper for the county attorney in this case to insinuate that the witness Tracy was in fact a felon; but still, as it would seem from the county attorney’s own statement that he did so merely as an inference from the “ face, manner, appearance, and testimony ” of such witness, and not from any outside or extraneous facts, we think it would necessarily follow, that no material injury could have resulted from said insinuation, unless Tracy’s “face, manner, appearance, and testimony” actually justified the inference drawn therefrom. The county attorney’s answer to the defendant’s objections was perhaps also improper. It is perhaps sometimes justifiable to meet frivolous objections with sharp answers; but probably the county attorney went further in this case than was entirely justifiable. It does not appear from the record that the court below justified or approved the improper remarks of the county attor ney. It is true, the court overruled the defendant’s motion for a new trial; but the court in doing so probably merely held that such remarks did not under the circumstances of the case prejudice any of the substantial rights of the defendant. We fully agree with all the authorities cited by the defendant upon this subject, to-wit: Winter v. Sass, 19 Kas. 557, 565, 566; Brown v. Swineford, 44 Wis.; State v. Smith, 75 N. C. 306; Brown v. Swineford, 7 Cent. Law Jour. 208; Ferguson v. State, 49 Ind. 33; Rolfe v. Rumford, 66 Maine, 564; Tucker v. Henniker, 41 N. H. 317.
Courts ought to confine counsel strictly within the facts of the cáse; and if counsel persistently go outside of the facts of the case in their argument to the jury, then the court should punish them by fine and imprisonment; and if they .should obtain verdict by this means, then the court should set such verdicts aside. Under the facts of this case however we must presume that the verdict would necessarily have been just what it was, even if the remarks as made by the ■ county attorney had never been made. We must presume that said remarks did not have the slightest effect upon the -verdict of the jury.
The judgment of the court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The defendant in error, (plaintiff in the court below,) on April 5th 1875, recovered in an action then pending before a justice of the peace of-Osborne county, a judgment against one James F. Manning for the restitution of certain real estate forcibly detained by said Manning, and for the sum of $25.33 back rent, and $5.65 costs. On April 8th Manning filed his petition in error in the district court of that county to obtain a reversal of the judgment. To stay execution during the pendency of the proceedings in error, he filed in said court a written undertaking in the penal sum of $150, executed to Closon by one William Manning, and John J. Hays, the plaintiff in error, conditioned—
“That the said James F. Manning shall not commit or suffer to be committed any waste thereon, and if the said judgment shall be affirmed, he will pay the use and occupation of the real estate from the date of the undertaking until the said James F. Manning shall deliver the possession thereof to the said James G. Closon pursuant to the judgment, and pay all costs.”
On 28th April 1875, the proceedings in error were decided adverse to James F. Manning, and the case was certified back to the justice of the peace with orders to enforce the judgment. About ten days thereafter said Manning was evicted from the premises. On the 27th of June 1876, defendant in error brought au action in the district court against William Manning, and the plaintiff in error, on the written undertaking signed by them to stay the execution as above mentioned. James F. Manning was also made a defendant in the case. No service was made on either of the Mannings, and no appearance was made by them. The case proceeded against Hays alone; and upon an agreed statement of facts, a jury being waived, the court rendered judgment against Hays for $25.33, (the rent due previous to the execution of said undertaking,) for $3.20 for rent subsequent to its date, and for $1.50 for waste committed, making a total of $30.03, besides the costs.
The court below erroneously included in the judgment said sum of $25.33, being the back rent prior to the execution of the undertaking, as such undertaking did not provide for the-payment of the rent for' which judgment was originally rendered by the justice, and was, by its conditions, expressly limited to the payment of waste committed on the premises and the use and occupation of the same from the date thereof, together with the costs. The makers of the bond never agreed to pay any rents which were due at the execution of the written instrument signed by them, and the district court had no power to increase or enlarge the terms of such instrument to their prejudice. The law will not create a liability against sureties which they did not intend to bring on themselves, and which is not within the express conditions of the bond.
The objection made to the judgment that it was erroneously given in the absence of service on the principal, is not valid. The undertaking was joint and several, and a suit might have been brought and prosecuted against any one of those liable thereon. Jenks v. School District, 18 Kas. 356.
The case will be remanded with instructions to the district court to enter judgment upon the agreed statement of facts for the defendant in error for $4.70, instead of $30.03, and all costs. The costs in this court will be taxed to the defendant in error, as the plaintiff objected only to said item of $25.33 in the court below.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The record in this case is in an unsatisfactory condition, and so much so, that it is impossible to pass upon the questions presented by the counsel for the plaintiff. The' action was brought in the court below under section 568 of the code, by Greenwood against Bean, to vacate a judgment rendered in an action of replevin in the same court on 6th January 1876, in favor of said Bean and against said Greenwood, the former having been the plaintiff and the latter the defendant in said replevin action. In this action, the petition alleged that in the original action of Bean against Greenwood, the cause of action grew out of a chattel mortgage given to Bean by the firm of Sellers & Co., under which Bean claimed to have a special ownership in certain drugs, merchandise, etc., and by which he was entitled to the immediate possession of the personal property which had been levied upon as the property of Sellers & Co. by said Greenwood as sheriff of Crawford county, at the-instance of J. W. Wood & Co., creditors of Sellers & Co.; thát said chattel mortgage was given to said Bean to secure the payment of two promissory notes executed by Sellers & Co., and that before the institution of the suit in replevin by Bean, he had sold and transferred the notes to other, parties and had no longer any interest therein; that Bean practiced fraud in obtaining the judgment, by his false statement, as a witness in his own behalf, that at the commencement of the replevin action he was the owner of the two notes. On the trial of this action, the district court, a jury having been waived,, found among other conclusions of fact, that the right of Bean to recover in the replevin action against Greenwood depended upon his rights under the chattel mortgage executed to him by Sellers & Co., and that Bean neither committed fraud nor corrupt perjury in said action. The conclusions of fact are attacked as unsupported by the testimony in the case; and yet there is no copy of the said chattel mortgage con tained in the record, nor is the substance of said mortgage anywhere set forth. All that is shown concerning it is, that it was executed on the 15th of October 1874, to Bean by’ Sellers & Co., and was given to secure two promissory notes of even date therewith payable to Bean or order, and due the 15th days of March and October 1875. There is no affirmative statement that the record contains all the evidence. This is necessary, or its equivalent, to obtain a review in this court of conclusions of fact on the ground that they are against the evidence. Prior to the testimony the statement is, “The plaintiff to maintain the issues on his part offered and produced in evidence the following testimony.” After certain evidence offered by the plaintiff, is this statement: “The plaintiff having rested his case, the defendant to maintain the issues on his part offered only the following testimony.” Following the testimony produced by defendant, comes this statement: “Here defendant rested his case.” Nothing is said about any rebuttal, nor concerning the case being closed, nor that the testimony then ceased. In this condition, and especially in view of the finding of fact' by the court as to the chattel mortgage, we cannot say that all the testimony is given.
While it is true, as a general proposition, that the transfer of the two notes by Bean, would thereby transfer any security taken in the way of a chattel mortgage, yet the parties to such an instrument might provide otherwise, at least so far as the possession of the property was concerned; and in the absence of the full terms and conditions of such chattel mortgage, we are not at liberty to say whether the findings of fact by the court below were against the evidence or not. As. was aptly remarked by this court in the case of City of Topeka v. Tuttle, 5 Kas. 425, it is the fault of the plaintiff in error, that the evidence is not all here; and if as a fact, all the testimony is contained in the record, it is the fault of such party, that an affirmative allegation to that effect, or some statement which would plainly show this, was not inserted in the record. There can never be any reasonable excuse for such an omission, when we are called upon to decide whether the findings of fact are supported by the testimony.
In view of the record presented to us, we cannot say, as to the alleged errors in admitting certain testimony, whether they were material or not.
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
Horton, C. J.:
In July 1870, Sarah A. Mitchell obtained a decree of divorce from her husband, David H. Mitchell, on the ground of extreme cruelty, and, was allowed, as alimonD in the action, the sum of $14,000 to be paid a£ the end of ten years from the 1st of July 1870, the sum of $2,500 to be paid within ten days after the judgment, to enable her to purchase a homestead, and an annuity of $750, for the term of four years, payable quarterly each year, and the further annuity of $1,060, to commence after the expiration of the said four years, to continue for six years and until the $14,000 should become due, (which said $1,060 was also payable quarterly, each year.) The judgment further provided that if the said David H. Mitchell failed to pay any of the said quarterly installments within ten days after the.same became due, then the whole amount of the annual payment on which the quarterly payment was in default should become due, and execution was to issue in favor of the plaintiff against the defendant to collect the same.. The defendant paid the several sums required of him to be paid to the installment due on the 1st of January 1877; and having made default in the payment of the January and April installments of 1877, the. plaintiff caused execution to-issue for the annual payment of 1877, and placed the same in the hands of the sheriff of Leavenworth county to be-executed. On 16th April 1877, the defendant in error commenced an action in the district court of Leavenworth county against said plaintiff in error and the sheriff, to restrain said parties from further proceeding- with said execution, and to-have the judgment rendered in July 1870, in the case of Mitchell v. Mitchell, modified and altered to correspond with, the changed circumstances of said David H. Mitchell, said Mitchell alleging in his petition that he was no longer abiete carry out the terms and provisions of the original judgment, on account of the depreciation and unproductivenessof his property and business, together with his altered circumstances since the rendition of the judgment. On the trial of the cause, the court modified the original decree so-as to prohibit the collection of any of the unpaid alimony therein provided for, except the $14,000 charged upon the-homestead,- and the collection of that amount was limited to-the proceeds of a sale of said premises. The question is-clearly presented, whether such a judgment can be changed in another proceeding, and at a subsequent term of the court, on account of changes in the circumstances of the parties? Had the district court the right to modify the judgment in consequence of facts thereafter occurring?
We must answer both questions in the negative. Sec. 646-of the civil code, as amended by sec. 27, laws of 1870, p. 179, provides, when a divorce shall be granted by reason of the fault or aggression of the husband, the wife shall be restored to all her lands, tene- * ments, and hereditaments not previously disposed of, and restored to her maiden name if she so desires, and shall be allowed such alimony out of her husband’s real and personal property as the court shall think reasonable, having due regard to the property which came to him by marriage, and the value of his real and personal estate at the time of decreeing such divorce, which alimony may be allowed to her in real or personal property, or both, or by decreeing to her such sum of money, payable either in gross, or installments, as the court may deem just and equitable. The allowance is to be based upon the then circumstances of the parties. By the dissolution of the marriage, the relation of husband and wife, between the parties, ceases to exist. The divorce granted at the instance of one party, operates as a dissolution of the marriage contract as to both. The subsequent relation of the-parties are the same as though no marriage had ever been had. Thereafter, the husband has no claim to the wife, nor the wife any interest in the newly-acquired property of the husband. The judgment for alimony is as absolute and permanent as the decree for the divorce. There is no provision of the statute authorizing the judgment for alimony to be afterward increased or diminished. If the wife cannot demand additional allowance, when the subsequent circumstances of the divorced husband might render him able to pay it, neither ought the husband be allowed to have alimony once granted reduced because of subsequent changes. Then, as the allowance cannot be increased, under the statute, for the same reason it ought not to be diminished.
Power of courts t modify judgments. Counsel for defendant in error insists that the power to modify the judgment exists in a court of equity, independent of statute, and therefore the judgment in this ease should be sustained. In some respects this . , statement is true; but these decisions are based upon English precedents and cases, where no divorces, except from bed and board, were permitted, till quite recently, and there was then no such thing as alimony upon a final dissolution of the marriage. Under the provisions of our statute, the allowance granted on á divorce from the bonds of matrimony is an essentially different thing from alimony given in England, whether formerly on a divorce from bed and board, or now on a judicial separation, or on a dissolution of the marriage by the divorce court. 2 Bish. Mar. & Div., 474; Smith v. Smith, 45 Ala. 264; Kamp v. Kamp, 59 N. Y. 212. But if any doubt remained, that the judgment for alimony could not be changed by the altered circumstances of the parties subsequent to the decree, it would be removed by section 645 of the code, which confers on the court the power of modifying and changing the decree in respect to the guardianship, custody, support, and education of the minor children of the marriage, whenever circumstances render such change proper, while conferring no such power to modify the decree in respect to the support of the wife.
The court below seems to have held the views stated by us, and modified the decree on the theory that the original decree included an allowance for the maintenance, nurture, and education of the minor children given in charge of said Sarah A. Mitchell. Now if the court had changed the guardianship of the children, or their custody, or had made any orders as to the support or education of such children, then, within said section 645 no error would have been committed. This was not done. The unpaid alimony due to the divorced wife, except the $14,000, was discharged, and if the $14,000 exceeded the proceeds of a sale of the homestead, then the balance of that sum was to be released. This judgment directly attacked and diminished the allowance made- to the wife, and does not come within the power conferred by section 645 — it does not even purport to affect the minor children.
The judgment will be reversed, and the case remanded with directions to the district court to enter judgment in favor of the plaintiff in error.
Valentine, J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was brought in the court below by A. E. Smith as the administrator of the estate of Jonathan Pierce, deceased, against Clary and Ferguson, plaintiffs in error, to recover on a promissory note of $352 given by them in the lifetime of said Pierce. The answer alleged that the note was executed on December 15th 1878, instead of its date, viz., December 15th 1878, as set forth in the petition; that the note was executed to take up a former note which fell due on December 15th 1872, and that the note sued on was paid in full to Jonathan Pierce in his lifetime; the note is as follows:
“On or before the 15th of June, I promise to pay Jonathan Pierce three hundred and fifty-two dollars, for value received of him this December 15th 1873. T. J. Clary.”
Indorsed on the back, “ John H. Ferguson.”
The claim of the defense was, that in August 1872, Clary executed to Pierce his' promissory note of the date of August 6th 1872, for $320, due in four months and ten days after date, with interest after maturity, and that said Ferguson was a guarantor on that note; that when the note became due, in December 1872, a new note, (the one sued on,) was given for the purpose of taking up or renewing the same; that Pierce charged twenty per cent, on the money he loaned, and on the renewal of his notes; that there was added to the amount of the first note $32 as interest on $320 for six months at twenty per cent., and the amount of the first note and this interest aggregated $352, the face of the new note; that by mistake the new note was dated December 15th 1878, instead of December 15th 1878, its true date; that Clary paid the note, about June 1st 1873, personally to Jonathan Pierce, and that this note was not then given up because Pierce could not find it, and told him he thought it was lost, but promised to give him a receipt against it, which he failed to do.
The case was tried by the court, a jury having been waived, and special findings of fact and of law were made and filed. Certain testimony was rejected, and this is the cause of complaint which we are called upon to consider. To show the materiality of the evidence held incompetent, and which the court refused to receive on behalf of the plaintiffs in error, it is necessary to state something of the proof presented. After the defendants had produced in the court below the original note of August 6th 1872, they called as a witness one Philip Beard, who testified that—
“He was well acquainted with Jonathan Pierce for some years before his decease, and knew T. J. Clary and J. H. Ferguson. In June 1873, he was riding near the Fall river, in the timber between Mr. Clary’s and Mr. Pierce’s, and came upon Jonathan Pierce and T. J. Clary. They were sitting by a leaning tree. Mr. Pierce had in his hand, when he rode up, a roll of bills, or paper money, which he seemed to have just finished counting. He laid out a roll of the money which he (Pierce) said was three hundred dollars. He then looked over a smaller roll, but witness didn’t remember how much he said there was in it, and he didn’t know how much was in the small roll; thought about forty or fifty dollars. Mr. Pierce counted the money again after witness stopped, and said the amount was correct. Pierce said to Clary during the conversation, that he did not know where his (Clary’s) note was, but thought it was lost, and if he did not find it in a few daj's he would give him a receipt against the note. Pierce further said then to Clary, that the first, or old note, was lost or eaten up, and he supposed it would never be found, as it had been lost so long, (and I think he said he had no doubt but it was eaten up by the hogs.) Pierce took the money he was counting when he (witness) came up, and about the time of separating of the parties said again that he would give Mr. Clary a receipt against the note in a few days, if he could not find the note. He (Pierce) said that he would perhaps meet Clary in Fredonia'in a few days. This was about June 1st 1873.”
■ Thereupon, John H. Ferguson gave the following testimony:
“I am one of the defendants in this case.” [ Witness was here shown note marked “A,” the note sued upon.] “I know this to be my signature to or on this note. I signed it in the latter part of the year 1872. I was in Fredonia when it was presented to me for my signature by Mr. T. J. Clary, the other defendant. There was no one present at that time but Mr. Clary and myself. I signed the note at the instance and request of - Mr. Clary, for Mr. Clary’s accommodation. I cannot be positive as to the date, but am confident it was in December 1872. I know it was in the latter part of 1872. This note was signed by me to take up another note that I bad signed with Mr. Clary in favor of Mr. Pierce, due on that day, or about that time. I remember well that the note which this was intended to take up was just due, or just about due, within a few days. I think the note was due the day I signed. I never signed but two notes for Clary in favor of Mr. Pierce. I signed this note in Fredonia, Wilson county, Kansas. I never signed any note with Mr. Clary after the last of the year 1872. I left Kansas on the 29th of September 1873, and went to Indiana. I remained in Indiana until the middle of'April 1874. I never saw this note from the day I signed it until this time.” [ Witness was here shown paper marked “B,” (the old note,) and said:] “This is the note I mentioned as the first note I signed with Mr. Clary, and it is the note I signed the note ‘A’ to take up. I signed this note for Mr. Clary’s accommodation. This note was presented to me by Mr. Clary. There was no one present when I signed this note, that I remember, but Mr. Clary. I never saw or heard of the note after I signed it until lately, except when I signed note ‘A’ to take it up.”
Gross-Examination: “I don’t know of my own knowledge that the note sued upon has been paid. I did not say that the note sued upon was executed on the 15th day of December 1872. I said I thought that it was executed the day the first note became due. I know that I did not sign the note on the 15th of December 1873. I did not write the note. It was written when presented to me.”
Re-direct: “I supposed the note to be dated the day I signed it. If the note was intended to be set forward a year, or any time, I knew nothing about it.”
Evidence was also offered from R. M. Foster a member of the banking firm of Foster & Co., of Fredonia, who stated, that—
“In May 1873, T. J. Clary deposited with his (Foster’s) banking-house $1,700, and had on call-deposit during the entire year, at the very lowest, $200, and most of the time much more; that on May 29th 1873, Clary drew out of the bank $400 of his own money; that all of Clary’s money was on call-deposit; that the bank paid no interest on such deposits, and that Clary was not paid anything on the money he had in the bank; that he had no money in the bank December 15th 1872, but had in the bank December 15th 1873, $800, and had this money there for a long time thereafter.”
After the testimony of Ferguson had been given, as above quoted, counsel for plaintiff in error moved that all such testimony be stricken out, and such motion was held under advisement. When the testimony was all in, and the parties had rested, the motion of the counsel for the administrator, that Ferguson’s testimony be stricken out, was sustained, and thereupon the whole of Ferguson’s testimony was stricken out. The court, in its conclusions of law, held that the note sued on by its terms was payable on the 15th of June 1874-, and that parol testimony was not admissible to show that a different time of payment was intended, and gave judgment for the defendant in error for $397.17, and costs.
The ruling of the court in rejecting and striking out the evidence of Ferguson from the case was erroneous. Two questions are presented: first, whether Ferguson, being a party to the suit, was a competent witness, when the adverse party was an administrator, and the suit was instituted and prosecuted by him in that official relation for the estate of Jonathan Pierce, deceased? second, was the evidence material or relevant ? Sec. 322 of the civil code provides —
“No party shall be allowed to testify in his own behalf, in respect to any transactions or communications had personally by such party with a deceased person, when the adverse party is the executor, administrator, heir-at-law, next of kin, surviving partner, or assignee of such deceased person, where they have acquired title to the cause of action immediately from such deceased person,” etc.
In McKean v. Massey, 9 Kas. 602, this court held, that “the fact of a person being a party interested, does not prevent him from being a witness in his own behalf;” and that “the law has not restricted such a party from testifying as to communications or transactions between the parties except where such communications or transactions were personal.” If any portion of the evidence of Ferguson related to essential facts in issue, without touching upon any communication or transaction had by him personally with the deceased Pierce, such portion of the testimony should not have been stricken out. The fact that he left Kansas in September 1873, and remained in Indiana until the middle of April 1874; that he signed the note sued on in December 1872, at the instance of Mr. Clary, and in his presence alone, and that he never, signed but two notes for Clary, and both of these in the absence of Pierce, and that the two notes presented to him were those then signed, was not testimony in respect to any transaction or communication had personally between Ferguson and Pierce; and if otherwise competent should have been received and considered-. We also think the evidence itself material and relevant. Beard gave evidence tending to show the payment of certain money to Pierce by Clary in June 1873, in satisfaction of a note; and it was claimed by the plaintiffs in error, that such moneys were received in payment of the note in suit- If this note was not signed until December 15th 1873, (its date,) then the evidence of Beard was either false, or had no relation to the note set forth in the petition. It became material and important to show that it was signed in December 1872, as claimed by the answer. If the note was signed by Ferguson in Kansas, and lie was absent from the state from the 29th of September 1873 to the middle of April 1874, it could not have been signed at its date, December 15th 1873, by him. As the parties defendant in the court below could not be witnesses to their transactions and communications personally with Pierce, the deceased, the circumstance of Ferguson’s absence from the state in 1873 and 1874, and the other matters related by him, having no reference to any transactions or communications had personally by him with the deceased, should have been examined and considered. The purpose of this testimony was not to prove by parol a different contract than the one stated in writing, nor to affect the note, which was complete in its terms, but to support the proof tending to show payment-Whether the note was due in June 1873, or 1874, the payee had the right to- accept payment at any time in full satisfaction. But if the note was not signed till December 15th 1873, there could have been no payment of the same in June 1873; and in this view, the court, to have been consistent, should have rejected the evidence of Beard. The court below must have either assumed that under the statute Ferguson was not a competent witness, or that the plaintiffs in error were seeking to reform the contract by changing its terms. In either light, the court erred, as thé witness was competent, and the evidence of the date of the note and the signing of the same was in support of the defense of payment. We do not mean to iutimate that this testimony, in connection with all the other testimony introduced by the plaintiffs in error, should have resulted in a judgment for such parties; but as it tended to prove the defense, it should not have been stricken out. The weight of the evidence and the credibility of the witnesses are with the trial court.
We may observe that the court rightfully rejected the evidence attempted to be presented from Campbell and others, that Mr. Pierce in his lifetime, charged twenty per cent, interest on money loaned, and when he renewed notes, as the evidence was not relevant. The plaintiffs in error were properly confined to the interest charged on the money included in the notes given by them to Pierce, and had no right to affect their case by showing the rate of interest collected by him from other parties.
For the error committed in rejecting the testimony of Ferguson, the judgment of the district court is reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an original action of mandamus, commenced in this court in the name of the state, by John Foster, county attorney of Saline county, to compe| Qharies F. Faulkner, Christopher Eberhardt, M. M. Briggs, and Theodore F. Garver, members of the city council of the city of Salina in said county, “in conjunction with the mayor of the city of Salina, and in a legal and proper manner, to make out and transmit to the governor of Kansas an accurate description, by metes and bounds, of all the lands included within the limits of the said city of Salina, and the additions thereto, and to do and perform all such other and further necessary acts to complete the organization of said city of Salina as a city of the second class,” in accordance with the provisions of section one of the second-class •city-charter act. (Laws of 1872, page 192, §1.) Section one of said act provides, among other things as follows:
“ Whenever any city shall have hereafter attained a population exceeding two thousand inhabitants, and such fact shall have been duly ascertained and certified by the proper authorities of such city to the governor, he shall declare, by public proclamation, such city subject to the provisions of this act. The mayor and council of such city shall at the time of making the certificate herein provided for, make out and transmit to the governor an accurate description, by metes and bounds, of all the lands included within the limits •of such city, and the additions thereto, if any.”
The city of Salina is and has been for a long time a city -of the third class. Section 15 of the third-class city-charter act provides, among other things, as follows: “The population of the city shall be ascertained, when necessary, by a -census taken under an ordinance of the city.” (Laws of 1871, page 123, §15.) The facts of this case, as alleged in the alternative writ, and as admitted or proved by the parties, are substantially as follows:
“On the 7th of January 1878, and prior thereto, said city of Salina Avas a city of the third class. The mayor and council of said city of Salina, on the 7th of January 1878, ordered that the census of all the inhabitants in said city be taken, and James S. Grier was appointed and confirmed by the mayor and council of said city to take such census. Said Grier Avas on the 21st of January 1878 commissioned to take such census under said appointment. The mayor and council of said city at the time of making the order to take siich census, and the appointing and commissioning said census-taker, believed that it was unnecessary to enact an ordinance •under Avhich to take such census.
“ The mayor and council of said city, on the 4th of February 1878, enacted an ordinance with reference to the taking •of the census of said city. * * * Said ordinance was duly published on the 7th of February 1878. The reappointing of said Grier to take such census, and the recommissioning him as such officer, was by the mayor and council of said •city, at their meeting at which the said ordinance was passed, discussed in open session, and was by them deemed unnecessary, and it was then and there agreed and understood by and between the mayor and council of said city and the said Grier, that he the said Grier should proceed to take such census under and by virtue of the appointment and commission aforesaid, and the said ordinance.
“Said Grier is, and was at the times herein mentioned, a qualified voter of said city, and a suitable person to take said census; and said Grier, on the 8th of February 1878, made- and filed with the city clerk of said city his official oath as-said official to take such census.
“Said Grier as said officer, on the 25th of February 1878,. duly reported under oath, and in writing to the mayor and council of said city, at a meeting of the city council then and there duly held, that there then were 2,069 inhabitants residing in the corporate limits of said city, and in said report-stated and set forth the names of said inhabitants, and under oath stated that the said report and the names therein were-correct.
“Said report was by the mayor and council of said city received, and it was then and there ordered by the mayor and council of said city, Ghat a' committee of three be appointed to report the boundaries of the city, and take the necessary steps to change the city organization from a third to a second-class city.’ Under said order a committee of three was appointed at said meeting. A majority of said committee made their report to the mayor and council of said city at a meeting duly held on the 7th of March 1878; a majority of said council then and there refused to receive said report.
“Said report contained an accurate description, by metes and bounds, of all the lands included within the limits of the said city of Salina, and the additions thereto. Said description was correctly copied into the minutes of the mayor and council of said meeting. * * *
“The mayor and city clerk of said city, on the 25th of April 1878, certified to the governor of Kansas the foregoing facts and proceedings, together with the records of the mayor and council of. the same. Said paper being transmitted to-the said governor, he refused to proclaim said city a city of the second class, for the reasons stated in his letter to C. SRadcliff, mayor. * * *
“C. S. Radcliff is now mayor of said city of Salina, and A. W. Wickham is a councilman of the city of Salina. Said mayor desires, and has offered to defendants to certify, to the governor of the state of Kansas that said city has attained a population exceeding two thousand inhabitants. Said mayor, and said Wickham, councilman of said city, are willing and desire to make out and transmit to the governor of the state of Kansas an accurate description by metes and bounds of all the land included within the limits of said city, and the additions thereto. Said mayor before the commencement of this action requested the council of said city, in conjunction with himself, to make out and transmit to the governor of Kansas an accurate description by metes and bounds of all lands included within the limits of said city, and the additions thereto. The defendants before the commencement of this action refused, and do refuse, to make out and transmit to the governor of Kansas an accurate description by metes and bounds of all the lands included within the limits of said city, and the additions thereto, either in conjunction with said mayor, or by themselves.”
The city ordinance mentioned in the above statement of facts, so far as it is necessary to quote it, reads as follows:
“Sec. 1. The city council of the city of Salina, shall, as often as they shall think necessary, order a census of the city to be taken of all persons residing therein, or of all persons of the age of twenty-one years and upwards, as the city council may require.
“Sec. 2. When a census shall be ordered to be taken as provided in section 1 of this ordinance, the mayor, by and with the consent of the city council, shall appoint and commission a suitable person to take the same,” etc.
James S. Grier had done about two days’ work toward taking the census, and had taken about 230 names of the inhabitants of Salina, when this ordinance was passed. After said ordinance was passed, and after he filed his said oath of office, he finished taking such census. He did not again go through the city where he had previously gone and retake the census of said 230 inhabitants, but he merely transferred their names, from the slips of paper on which he had previously taken them in pencil, to the said report which he made and filed with the mayor and council. The city of Salina has in fact a population of over two thousand inhabitants, and the defendants so believe, but they do not believe such fact has ever been legally ascertained. Upon the foregoing facts the defendants raised the following questions:
Ist.-The defendants claim: That the county attorney of a county in which a city is situated, cannot under any circumstances maintain an action of mandamus against the officers of such city to compel them to perform a legal duty enjoined upon them merely as such city officers.
2d.-The defendants claim that, although a city of the third class may have a population of over two thousand inhabitants, still, that no steps can be taken toward transforming such city into a city of the second class until that fact has first been duly and legally ascertained by the city authorities. They claim that such fact can be duly and legally ascertained only by taking a legal and valid census of the population, and that such a census can be taken only under the provisions of an ordinance of the city, previously passed, authorizing such a census to be taken. They claim that none of these things have been done in the present case, and therefore they claim that they are not now legally bound to perform any of the acts demanded of them by the plaintiff. They claim that the census actually taken in the present case is illegal, and invalid, for the following reasons: First, No ordinance was in force authorizing a census to be taken when Grier, the census-taker, was appointed to take said census. Second, A portion of the census actually taken and reported to the mayor and council by him, was taken before any ordinance was passed authorizing a census to be taken. Third, The ordinance which was afterward actually passed did not authorize the present census to be taken, nor any census, but merely authorized the city council to afterward order that a census should be taken, which order the council has never yet legally made. Fourth, Said ordinance did not authorize any particular census to be ordered to be taken, but simply authorized the council to afterward order that one or the other of two different kinds of census should be taken, and the council has never yet legally designated which one of said two different kinds of census should be taken. Fifth, Said ordinance did not appoint Grier, or any one else, to take a census, but simply provided that when a census should be ordered to be taken the mayor and council might then, (that is, after the passage of the ordinance, and after the order to take the census had been made,) appoint some suitable person to take it; and no person has ever yet been legally appointed under said ordinance (or otherwise) to take said census. And the defendants further claim, that said census taken by Grier has never been ratified or held good by the city authorities, but that on the contrary they have always held it irregular, invalid, and void, and have always refused to be bound by it.
I. We think the county attorney is a proper officer to prosecute this kind of action. He should certainly have the power to compel, by a proper action, all officers of his county to perform the duties of their respective offices, whether such officers are county, city, township, school-district, or road-district officers. He is the legal representative of the state for the prosecution of actions for the whole of his county, including all cities therein; and he should faithfully represent the interests of the state for the whole of his county, and each municipality thereof.
II. From the evidence in this case we should think that the city of Salina has a population of two thousand inhabitants, and the defendants themselves so think, although there is evidently room for a difference of opinion. And assuming that it has a population of over ® *• two thousand inhabitants, it then becomes the immediate duty of the city authorities to legally ascertain that fact, and then to take the necessary steps to organize the city as a city of the second class; and they cannot shirk the responsibility of performing this duty. They have each taken an oath to perform the duties of their respective offices, and nothing can excuse a voluntary failure to perform such duties. Their only excuse for failing to perform the acts demanded of them by the plaintiff in this case is, that it has never yet been legally ascertained that the city of Salina has a population of over two thousand inhabitants. Now if it has not, then it is their legal duty to so ascertain that fact. We are inclined to think that said fact has really never been legally ascertained. Grier really never had any legal authority to take said census, and hence the census itself, although ever so correct, cannot be binding upon the city authorities unless they are willing to ratify it and make it binding. This they have never done. Possibly they could not do it, but we are inclined to think they could. The census taken by Grier is void merely for technical irregularities, and hence we would think that the city authorities might ratify it and make it binding upon the city. But being void for irregularities, although the irregularities are pierely technical, we do not think that the city authorities are required to treat it as valid, unless they are willing to do so. It is not claimed that the city authorities have ascertained in any other legal manner that the city has a population of over two thousand. And hence, as it has never been ascertained by the city authorities in any legal manner that the city of Salina has a population of over two thousand inhabitants, we cannot award the peremptory writ of mandamus to compel the defendants as councilmen of said city to perform the acts prayed for.
Judgment will therefore be entered for the defendants.
All the Justices concurring. | [
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The opinion of the court was delivered by
VALENTINE, J.:
Elmer Loomis, plaintiff in error, as administrator, brought this action against the defendants, alleging in substance, that L. F. Crawford, his intestate, had during his lifetime loaned a sum of money to the defendant L. B. Lebr, and had taken a note for the money loaned (and also a mortgage to secure the same) in the name of his son, the defendant Geo. W. Crawford. That he, L. F. Crawford, was insolvent at the time, and that this was done for the purpose of preventing his creditors from reaching the money thus loaned. The plaintiff sought to enjoin Gee. W. Crawford from collecting the money due on the note, and also sought to have the same administered as part of the assets of the estate of the intestate. A demurrer was filed to the petition, which was sustained by the court below; and to reverse this ruling the plaintiff now brings the case to this court.
The plaintiff's counsel says that there is but one question in this case, and that is this:
"Can an administrator, by virtue of the power and authority vested in him under a proper statutory appointment to said office, recover property which the decedent had given to his children during the lifetime of the ancestor, provided he, the said decedent, was indebted to the extent of insolvency at the date and time of the gift, and, after his death, without the money and property thus given away, his estate would not pay its debts? Now, can an administrator recover money and property thus given away? And, if not, why not?"
We think counsel for plaintiff has stated the question rather too broadly. It is not, whether the administrator can "recover property," etc., for the word "property" includes all property, real as well as personal, while the question is only, whether he can thus recover personal property. The statute provides in express terms, that "the real estate liable to be sold ” by the administrator to pay the debts of the deceased, u shall include all that the deceased may have conveyed with intent to defraud his creditors.” (Gen. Stat. 454, sec. 116.) And hence it might be inferred from this statute, that the administrator might in some cases recover real estate or real property which had previously been conveyed by the deceased to defraud his creditors. But as there is no similar statute applicable to personal property, no such inference can be drawn from the statutes with reference to personal property. Indeed, the inference from the statutes might be against the authority of the administrator to recover personal property conveyed by the deceased to defraud his creditors; for, expresslo unius, est exciuslo al~erius. That is, the expressly giving the administrator the power to sell real estate, would be to exclude any similar power with reference to personal property; for personal property is not mentioned in the statute. But it may be claimed however, that another inference favorable to the plaintiff may be drawn from this statute, and that is, that the administrator acts for the creditors of the estate as well as for his intestate, and that he is their representative as well as the representative of the deceased. This inference however is very weak, for if the estate is entirely solvent the administratór would be acting entirely for the benefit of the estate, and not for that of the creditors by selling land to pay the debts of the estate which land the deceased had previously sold, and by reserving the other land for the benefit of the estate which land had not previously been so sold by the deceased. The creditors could have no possible interest in selling land to pay their debts, which bad previously been sold to others by the deceased, in preference to land which had not been so sold by the deceased. Their only interest is in getting their pay; and it can make no difference to them whether they get it from one class of land, or the other. It will be noticed that the statute has no reference to insolvent estates. Land sold by the deceased to defraud his creditors, may be sold by the administrator as well where the estate is solvent, as where it is insolvent. The inference therefore in favor of the plaintiff, drawn from said statute, is not stronger than the inference which may be drawn from the entire statute against him. We therefore think we may decide the question involved in this case independent of said statute, and aside from said statute. We think we may decide it upon authority and upon general principles.
Nearly all the authorities are against the power of the administrator to sell, or to recover from the fraudulent vendee, or 1° use as assets of the estate (without the consent of the fraudulent vendee) property which ha(j previously been sold by the deceased to defraud his creditors. Among said authorities are the following: McLaughlin v. McLaughlin, 16 Mo. 242; Brown v. Finley, 18 Mo. 375; George v. Williams, 26 Mo. 190; Martin v. Martin, 1 Vt. 91; Moody v. Fry, 3 Humph. (Tenn.) 567; Sharp v. Caldwell, 7 Humph. 415, 416; Dunbar v. McFall, 9 Humph. 505; Commonwealth v. Richardson, 8 B. Mon. (Ky.) 81, 93; Winn v. Barnett, 31 Miss. 653; Gully v. Hull, 31 Miss. 20; Snodgrass v. Andrews, 30 Miss. 472; Ellis v. McBride, 27 Miss. 155; Crosby v. DeGraffenried, 19 Ga. 290; Chouteau v. Jones, 11 Ill. 300; Osborne v. Moss, 7 Johns. (N. Y.) 161;. Ordronoux v. Helie, 3 Sandf. (N. Y.) Ch. 512; Cobb v. Norwood, 11 Texas, 556; King v. Clarke, 2 Hill (S. C.) Ch. 611, 613; Williams v. Williams, 34 Penn. St. 312. All the authorities hold, (except where there are express statutes to the contrary,) that when a person conveys his property, real or personal, for the purpose of defrauding his creditors, the conveyance is good and binding upon him, and upon all his-representatives, whether such representatives be his agents, his executors, his administrators, or his heirs. As to him and all his representatives, the title to the property has passed irrevocably, except with the consent of the fraudulent vendee. The sale or conveyance is void only as against the creditors of the fraudulent vendor, and is not void as against him and his representatives. The authorities above cited hold that the administrator is the representative of the deceased alone, and is not the representative of his creditors; and hence it follows, as'they hold, that the administrator cannot do any act to disturb any sale or conveyance made by his intestate for the purpose of defrauding creditors. Of course, each creditor has the right to treat such a sale or conveyance as void to the extent of his debt. But the administrator, not being the representative of the creditors, but representing an antagonistic interest to them, cannot found any action or right of action upon their rights. But all creditors do not have this right to treat the sale or conveyance of their debtor as void; and how shall the administrator know which of the creditors have this right, and which do not have it? Suppose the administrator sues the fraudulent vendee for the recovery of the property which the fraudulent vendee has obtained from the deceased fraudulent' vendor; and suppose that the vendee sets up and proves that there are only five creditors, or supposed creditors, in all — A., B., C., L., and E.; that A. was a party to the original contract by which the vendee obtained said property; that B. for a valuable consideration paid by the vendee to him (B.) had ratified the fraudulent conveyance from the vendor to the vendee, and had released the vendee from his claim; that C. was a subsequent creditor with full notice of the conveyance from the vendor to the vendee; that Dds claim was fraudulent and void, and not binding upon the estate, and that the administrator knew it; that Eds claim was small, say only ten dollars, while the property in controversy was worth one thousand dollars: what would be the result? Certainly the administrator should not recover the property to pay the claim of A., nor of B., nor of C., nor of D.; and should he recover the whole of the property to pay the small claim of E.? And suppose that the estate had property enough to pay a dozen such claims as Eds: what then? And suppose that the estate had property enough to pay fifty cents on the dollar of all the claims, Eds included: what then? These are only a few of the many difficulties which would embarrass the administrator if he were allowed -to maintain this kind of action, and if he were allowed to represent all the creditors of the estate, as well as his intestate. But these few difficulties are probably enough to show that it is better to let each creditor take care of his own claim. In the cases we have supposed the estate would have to pay the expenses of the litigation, which each creditor (A., B., O. and D.) might know, so far as his own claim is concerned, would result disastrously to the estate. And if the administrator could sue the fraudulent vendee, he could also of course sue any sub-vendee, and thereby multiply parties and issues, and enhance costs to be finally paid out of the funds of the ■estate. If an estate is really insolvent, it would be better to give it to the creditors with as little cost as possible, and then let the creditors themselves seek their remedies against fraudulent vendees, than for the administrator to waste the estate in possibly fruitless litigation with supposed fraudulent vendees, as the assumed representative of the creditors. If an estate is solvent, we suppose no one would claim that the administrator could maintain an action against the supposed fraudulent vendee to recover personal property received from the deceased. And if the estate is insolvent, then let the creditors, whose real interest it is to reach all property in the hands of a fraudulent vendee, assume all the risk and expenses of a litigation with such fraudulent vendee.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Defendant in error sued plaintiff in error before a justice of the peace, to recover for lost baggage. Both parties appeared by counsel, a trial was had, and a judgment was there obtained against the plaintiff in error. The case was thereafter appealed to the district court by the railroad company, and upon the trial the company interposed a demurrer to the testimony offered by defendant in error. The demurrer was overruled, and judgment rendered for Brewer. The judgment is alleged to be erroneous, first, because the defendant in error failed to prove the incorporation of the company; and second, because the testimony did not prove any contract of carriage.
We dispose of the first point upon the authority of the Mo. River Ft. S. & Gulf Rld. Co. v. Shirley, just decided, (ante, p. 660,) wherein we held that a corporation, by appearing to a suit, thereby admits its corporate existence.
The testimony was to the effect, that defendant in error started from Bloomington, Illinois, where he bought his ticket for Wichita, in June 1876; that he paid $23.50 for the ticket, and had his trunk checked to Kansas City, Mo. At Kansas City he re-checked the trunk over the road of plaintiff in error, and received a baggage-check in return from said railroad company. The check was presented in evidence. It was numbered 1964, and had the letters “A.T. & S. F. R. R.,” stamped thereon. Brewer was carried over the railroad to Wichita, as a passenger, and called there on the officers of the company for the trunk several times, but could never obtain it. It could not be found. The trunk and contents were worth over one hundred dollars. The possession of the check by the defendant in error was evidence against the company of the receipt of the trunk, and the proof that the baggage could not be found, when inquired for and demanded by the passenger, raised a presumption of negligence on the part of the company. The evidence was clearly sufficient to fix the liability of the company for the loss of the trunk.
The judgment of the district court must be affirmed.
All the Justices concurring. | [
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By the Court,
Horton, C. J.:
This case seems to be almost identical with the case of Dodge v. Beeler, 12 Kas. 524, as respects the grounds upon which the claim of defendant in error is based, and with the decision in that case we are entirely satisfied. As the decision of the court below followed the rule of construction enunciated in Dodge v. Beeler, the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The question involved in this case is simply this: Are private bankers liable to taxation upon the average amount of deposits used by them in their business? The question arises under section 23, chapter 34, laws of 1876, which reads thus:
“Every private bank, banker, broker, building [and] loan and trust association, shall list and return the average amount of capital invested in such business during the year next preceding the first day of March preceding the time required for listing personal property, whether such capital is in the form of a deposit in such bank, or otherwise.”
The question must be answered in the affirmative. The language is not perhaps entirely free from doubt, and yet points strongly in that direction; and such construction harmonizes with the general policy of the tax law. Counsel for plaintiffs lays stress on the phrase “capital invested,” and says that that can only mean the capital put into the concern by the banker himself, and in consequence would limit the last clause to such capital. He would make the clause read, “whether such capital is in the form of a deposit by him in such bank, or otherwise.” We think this distorts and narrows the meaning of the statute. It aims to reach all the moneys used in the banking business, whether moneys owned by the banker before engaging in business, or borrowed by mortgage, loan, or obtained from depositors as deposits. If it aimed to reach only the banker’s original capital, or capi tal and profits, the last clause never would have been added. In this respect it harmonizes with the rule respecting taxation of merchants and manufacturers. (See art. 5 of said eh. 34.) They are required to list the average amount of stock on hand during the year, irrespective of the question whether it is all paid for, or all, bought and held on credit. If a merchant is doing business entirely on credit, he is nevertheless taxed on the stock he has thus bought. Suppose he buys and keeps on an average a stock of $10,000: he is required to list that amount, although all the time he may owe the entire sura to the parties from whom he makes his purchases. So, when á banker having no capital of his own, (and when the assessment-roll is examined it is astonishing to see how little capital bankers have!) borrows money in the way of dep'osi'ts, and engages in business on such deposits, he is treated exactly as the merchant, if he is taxed upon the average of such deposits. And such deposits .being money, the average amount is the average value. The fact that he owes the depositors, is no more reason for exemption, than the fact that the merchant owes for his stock. Again, the intention of the legislature is made more clear by sec. 6 of said tax law. That authorizes a deduction of debts from credits, “provided, such debts are not owing to any person, company or corporation as depositors in any bank or banking association, or with any person or firm engaged in the business of banking, in this state or elsewhere.” In other words, the banker may not call his deposits “debts,” and deduct the same from his credits. This shows that the legislature intended to make him pay on his deposits, at least so far under section 23 as he uses them in his business. In this legislation the legislature has but followed the express mandate of the constitution. Section 2, art. 11, of that instrument reads:
“The legislature shall provide for taxing the notes and bills discounted or purchased, moneys loaned, and other property, effects, or dues of every description, (without deduction,) of all banks now existing, or hereafter to be created, and of all bankers; so that all property employed in banking shall always bear a burden of taxation equal to that imposed upon the property of individuals.”
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
Brewer, J.:
The questions in this case arise under the tax law of 1874, as amended by the legislature of 1875. The facts briefly are these: The railway company made its schedule and returns to the county clerks of the several counties, and to the state auditor, as required. The valuations as placed by the company were increased in the various counties, and as increased returned to the state board of equalization. So far as the counties other than Riley are concerned, there is nothing to show that the valuations were not so increased upon notice to the company, and full hearing by the commissioners. As to Riley county, it appears that the valuation returned by the company was increased by the township assessors, and the valuation of the assessors slightly reduced by the county board of equalization; and all this without notice to the company. The state board of equalization increased the total valuation of plaintiff’s property, and the valuation of that portion in Riley county, increasing the latter above both the company’s valuation and that of the commissioners. According to the testimony of the state auditor, the state board had before it no evidence other than the returns made by the various companies in the state, and made the changes upon those returns and their own personal knowledge of the business and value of the different railroads. It does not appear that the total valuation of all railroad property in the state was changed from that returned by the companies or the county clerks. The case is rested upon the fact, that plaintiff’s valuation was increased, and without any testimony other than the various statements and returns of the companies themselves. Upon these facts, the action of the assessors, of the county commissioners of Riley county, and of the state board, are all challenged. Elaborate briefs have been filed, criticising the action of these different officers, and pointing out such defects therein as was thought invalidated such action.
We think it clear that if the action of the state board can be sustained, it is immaterial what errors were made by the inferior authorities. If the valuation placed by the state board was correct, and correctly reached, that avoids the need of further inquiry. Section 10 of the law of 1874 reads:
“The auditor of state shall annually, on the, meeting of the state board of equalization, lay before said board the statements and schedules herein required to be returned to-him, and such board shall equalize the assessment of such property in such a manner that the valuation of each railroad track shall be uniform throughout the entire length of the road within the state; and they shall also equalize the assessments of all the railroads, so that the relative assessments of the different roads shall be just and equitable; provided, that they shall not reduce the total assessment of the railroads as returned by the county clerks.”
This section was unchanged by the law of 1875, and was in force at the time of the proceedings complained of. Now, that the statements and schedules were placed before the state board, that such board acted upon them, that they equalized the assessment of plaintiff’s property so as to make the valuation of its railroad track uniform throughout its entire length in the state, and that they equalized the assessments of all the railroads, so that their relative assessments should be just and equitable, is affirmatively shown. That they increased the aggregate assessment of all the railroad property, or that their total valuation differed from that returned by the county clerks, is not shown. All that is shown as matter of complaint is, that the assessment of plaintiff’s property was largely increased, and that the changes were made upon the various statements and schedules returned and the personal knowledge of the members of the board of the business and value of the different railroads. That an increase was made in the assessment of plaintiff’s property, proves nothing. The very idea of equalization is, that while some are decreased, others are increased. So that the only real objection is, that the board made these changes upon the company’s returns, and their personal knowledge, instead of subpenaing witnesses, hearing testimony, conducting a judicial examination, and placing their decision upon the evidence thus adduced. The question then resolves itself into this: Upon what may a board of equalization act? May they act entirely upon the assessments, and returns made to them, guided by their personal knowledge, or must they accept the assessment and returns as conclusive unless other and outside testimony is produced? We think they may act entirely upon the assessment and returns made to them, guided by their own knowledge. We do not mean that they are limited to these matters, and that they cannot procure testimony and avail themselves of other means of information. The matter of equalization is committed to their discretion. It is not a judicial proceeding, nor one from which error will lie. Auditor of State v. A. T. & S. F. Rld. Co., 6 Kas. 500. They may avail themselves of such means of information as they may deem necessary. If they are satisfied that the assessments and returns themselves furnish all the information necessary to enable them to make a just and fair equalization as between the different taxpayers or districts, they may act upon them alone. If in any matter they desire further in formation, they may seek it whence and in what manner they deem best. In the case of Cuse v. Dean, 16 Mich. 12, the court says: “The power of equalization by the board being confined to the real estate, and the whole subject being under their complete jurisdiction, they may adopt their own means of reaching the result; and when that result is reached it is conclusive, and cannot be invalidated by evidence that they had adopted as a basis an erroneous footing or aggregate of the valuations returned by the supervisors.” In the case at bar, the schedules and returns required to be furnished by the railroad companies contain no little information upon which to base an assessment or make an equalization. For instance, the schedule shows among other things, “the number of ties in track per mile; the weight of iron or steel per yard used in main or side track; what joints or chair are used in track; the ballasting of road, whether with gravel or dirt; the number and quality of buildings or other structures used on right-of-way; the length of time iron in track has been used, and the length of time the road has been built.” Now such facts as these stated by. the various companies furnish valuable data from which to make a fair and just equalization of the values returned. If deemed sufficient by the board, the equalization made by them cannot be declared void by the courts because further testimony was not sought and received. We think therefore, that so far as their actiou is based solely upon said section 10, and as to all of the property therein referred to, the action of the state board must be sustained.
But it is said that by section 8 the schedules and statements required to be returned to the state auditor by the companies only embrace a certain portion of the company’s property, and that as to the remainder the only assessment that legally comes before them is that returned by the counties; and that therefore, if as to such property the assessment is illegal, their action based thereon must also fail. Section 8 reads:
“Sec. 8. * * * The company * * * shall return to the auditor of state sworn statements or schedules as follows: Showing the property held for right-óf-way, and the length of the main and all side and second tracks and turnouts in such county, and each township in the county, through or into which the road may run, and the number of acres thereof. They shall also state the value of improvements and stations located on the right-of-way, as required in sections two and three of this act.”
Now it would seem a fair construction of this section, that it required a return to the auditor of a schedule of the property known as “railroad track” only as distinguished from that described as “rolling stock,” and for two reasons: first, it specifies only the kind of property embraced within the term “railroad track,” as defined in the statute; and second, if it had been the intention to require as full schedules to be returned to the auditor as to the county clerk, how natural it would have been to have simply said “like schedules,” or something of that kind, rather than enter into a statement of what the schedules returned to the auditor should contain. On the other hand, it may be said the statement or schedule is to contain the “value of improvements” “as required in section three,” and that section three refers exclusively to “rolling stock,” and that the company in fact recognized this as the true construction, for it returned full schedules of all its property to the state auditor.
Now we shall not decide this question, because the matter already considered by us compels an affirmance of the judgment, for it is not claimed that a tender was made of the taxes which, as we have construed the statute, were clearly due, and hence the court properly refused the injunction, and there was no error in its ruling. Sometimes it is proper for this court to go beyond the matters absolutely essential to a decision of the case, and express its views upon other questions fairly in the case, and which may affect the rights of the parties in the further progress of litigation between them. But we are constrained to think this is not such a case. The act under which these tax proceedings were had has been repealed, and no new litigation is likely to arise under it. It is an act full of confusion and difficulties. It has been before us in one or two cases, and scarcely a question presented un der it have we been able to settle to our complete satisfaction. This very case has been before us for several months, and has been examined and reexamined from one standpoint and another, until finally we have reached a conclusion which enables us to dispose of the case; and beyond that we care not to inquire. We hold therefore in conclusion that so far as relates to that property known in the statute as- “railroad track,” the action of the state board has not been impeached, and the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is the second time that this case has-been presented to this court. (Paola & Fall River Rly. Co. v. Comm’rs of Anderson Co., 16 Kas. 302.) And no new question of any importance is now presented by the record. After the former decision, and after the case was returned to the district court, the defendant, the railway company, answered to the plaintiff’s petition, and the plaintiff replied. This-answer and reply were afterward amended. The answer as-amended put in issue some of the allegations of the plaintiff’s petition, and also set up as a defense a supposed ratification by the full board of county commissioners of the-alleged irregular and unauthorized acts of only two of the-members of said board. The reply was substantially a general denial. Upon these pleadings the parties went to trial-The case was tried before the court and a jury. After the plaintiff intrduced its evidence, and rested, the defendant demurred thereto, on the ground that the evidence did not-prove any cause of action. The court sustained the demur rer, discharged the jury, and rendered judgment in favor of the defendant and against the plaintiff; and the plaintiff now appeals to this court.
¥e think the court below erred. Every substantial fact alleged in the plaintiff’s petition was either admitted or proved, and there was no evidence introduced tending to prove the defendant’s defense of ratification. It is perhaps true, that the plaintiff did not prove that the notice of the special session of the board of county commissioners attempted to be held by two of the members of the board on the 4th of September 1873, was “intentionally and fraudulently” withheld from the third member of the board by the railway company; but we do not think that this is a material fact in the case. The third member did not in fact have notice of any kind concerning said meeting until some days after it was held; and this we think is the material fact in this particular. And there is no evidence in this case showing that either this third member, or the county board in legal session, ever ratified the act of the two members done at such supposed special session. We must therefore hold in this case as follows: Where the record shows, thatfin September 1871, a vote was had by which the county board was authorized to subscribe to the capital stock of a certain railway company, and to issue the bonds of the county in payment therefor, and in September 1873, two of the members ■of such board met in a supposed special session, but without any previous request or call therefor, and without any notice thereof to the third member, although he was present in the •county and could easily have been served with notice, and this was not a regular session or adjourned session of the board, and these two members at such session passed resolutions directing a subscription to the capital stock of said railway company, and also directed the issuance of certain county bonds to be deposited with the state treasurer and held by him as escrows until certain conditions should be fulfilled by the railway company and then to be delivered to such company, and such subscription was so made, and the bonds were so issued and deposited, said subscription and said bonds are not legal and binding obligations upon the county, and the county may maintain an action to set them aside and to cancel them.
As we have before stated, the question of ratification is not in the case. If the acts of said two commissioners were ever ratified by the board in legal session, it devolved upon the •defendant to show it. But the defendant did not show it; nor was it shown in this case. The defendant alleged in its answer that the county board ratified the acts of said two commissioners at the regular session of the board held in October 1873. But what particular acts or things the board •did, or did not do, at said October session, amounting to a ratification, or how the board ratified said acts, we are not informed. The defendant also alleged in its answer, that the •county board again, on 8th January 1874, and on 23d July 1874, and 9th October 1874, ratified said acts of said two •commissioners, and made said subscription and said bonds valid. In these last three instances the defendant tells us, in its answer, how the ratification was consummated; but whether his answer is true in these respects or not we cannot tell, as no evidence was introduced tending to prove or disprove the same, and therefore we do not feel called upon to •express any opinion as to the sufficiency of these alleged ratifications. The court below could not of course have expressed any opinion thereon, as the question was not before it. We shall therefore not express any opinion in this case ■concerning said alleged ratifications. As to the ratification alleged to have taken place in October 1873, we could not •express any intelligent opinion, however much we might so desire, for there is nothing in the case alleging or showing what the particular acts or omissions of the board or of its members were which are supposed to constitute a ratification.
The judgment of the court below is reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Stillings & Fenlon against David H. Mitchell for professional services as attorneys-and-counselors-at-law. The action was commenced in a justice’s court, where judgment was rendered in favor of the plaintiffs for the amount of their claim, to-wit, $250. The defendant appealed to the district court, where the case was again tried, before the court and a jury, and a verdict and judgment were there rendered for the plaintiffs for the sum of $200. Immediately after the verdict was rendered, the defendant moved to set aside the same, and for a new trial, upon three separate grounds, one of which was for newly-discovered evidence. The court below overruled this motion, and rendered judgment for the plaintiffs as aforeT said, and the defendant now brings the ease to this court.
The only ground for reversal relied on in this court is, that the court below erred in refusing to grant a new trial upon the ground of newly-discovered evidence. We do not think that the court below erred; for in our opinion, the supposed newly-discovered evidence was merely cumulative, and was not in fact newly-discovéred evidence at all. A discussion of this question will involve a consideration of a large portion of the evidence introduced on the trial, as well as a consideration of the supposed newly-discovered evidence. There was only one question of fact concerning which the parties materially differed, and that was as to the amount which they believed the plaintiffs were entitled to recover. The plaintiffs claimed that they were entitled to recover $250, while the defendant claimed that they were entitled to recover only $50. The services for which the plaintiffs sued in this action, were services rendered by the plaintiffs in an action brought by Mitchell against Austin Claflin and others, on a note and mortgage. F. P. Fitzwilliam was also an attorney in that case for Mitchell. Stillings testified on the trial in this case, that Mitchell agreed to pay a fee of $500 in the Claflin case, in case a judgment could be recovered for the -full amount of the note and mortgage. This would have given to the plaintiffs a fee of $250, and Fitzwilliam a fee of $250. Mitchell however testified, that at first he agreed to pay Stillings a fee of $200 in case the full amount of his claim could be recovered, but that afterward he told Stillings' that he would pay him in connection with Fitzwilliam 'a fee of $100 and take all the risks himself, and that Stillings agreed to the same. This agreement Mitchell testified was made in the spring of 1876, near the corner of Second and Shawnee streets, in Leavenworth city. A judgment was rendered in said Claflin case in favor of Mitchell for the full amount of said note and mortgage, and said judgment was afterward satisfied by Mitchell receiving from Claflin certain property and $320 in money. Evidence was also introduced on the trial, by the plaintiffs, with regard "to the value of their services rendered in said Claflin case. Said newly-discovered evidence was the testimony of a colored man by the name of Reuben Jackson. This testimony was incorporated in an affidavit, and was filed and-read on the hearing of said motion. The evidence was in substance as follows: “In the spring of 1876, Jackson was present at a conversation had between Stillings and Mitchell, near the corner of Second and Shawnee streets, in Leavenworth city, and heard Mitchell tell Stillings that he, Mitchell, would-pay Stillings and Fitzwilliam $100 for trying said Claflin case, and that Stillings replied that they would try it for that amount.” Mitchell also filed and read on the hearing of said -motion his own affidavit, in which he stated, among other things, that he did not suppose, prior to said 'trial, that Stillings would deny his said contract; that said evidence of Jackson’s was newly-discovered; and that, although he had, prior to the trial, used due diligence to discover any and all evidence applicable to his case, yet that he did not discoyer this evidence of Jackson’s until after the trial. Stillings also filed an affidavit which he read on the hearing of said motion. We do not think that the court below erred in overruling said motion. Jackson’s evidence was merely cumulative, and was not newly-discovered evidence. The conversation, with respect to which Jackson would have testified, was undoubtedly the same conversation with respect to which Mitchell had already testified, and the same conversation which Stillings had denied on the witness-stand. In this respect this case differs from that of Klopp v. Jill, 4 Kas. 482. In that case no evidence was given on the trial concerning the conversation afterward claimed to be newly-discovered evidence. In that case the defendant did not hear the conversation, as the defendant testified he did in this case. In that case the conversation did not constitute a contract, as the witness testified it does in this case. In that case it was a mere admission, made by the plaintiff to a third person, and of which the defendant knew nothing until after the trial, and concerning which no evidence was given on the trial. • But as we have already stated, the evidence of Jackson is not only merely cumulative, but it is not newly-discovered. Mitchell undoubtedly had full knowledge of it, if it is true, long before the trial, and at the very time when such conversation was being had. If Jackson was in fact present, and in fact heard all said conversation between Mitchell and Stillings, Mitchell must have known it. But if he did not know it, then why not? Not a word of explanation has been 'given. But if Mitchell had knowledge of this evidence at one time, and had forgotten it, then why did he not tell the court so, and give some reason for his want of recollection ? Not one word of explanation was given on that subject. And Mitchell’s excuse for not exercising greater diligence in finding this evidence, is hardly sufficient. He says that he did not sup pose, before the trial, that Stillings would deny his contract. Now under said alleged contract the plaintiffs would have been entitled to recover only $50, or just one-half what Mitchell testifies he was to pay them and Fitzwilliam together; and yet the plaintiffs sued for $250. The action was commenced in a justice’s court. The plaintiffs there claimed $250. They obtained a judgment for that amount. And Mitchell then appealed to the district court. Did he suppose that the plaintiffs would relent in the district court, and take a judgment for $50? There is not the slightest evidence in this case tending to show that either of the plaintiffs, at any time after said alleged contract is claimed to have been made, ever admitted that they were not entitled to recover the full amount for which they sued. But on the contrary, Stillings testified that the matter had been the subject of frequent conversations and attempted settlements between himself and Mitchell, and that he always claimed that they were entitled to recover all that they sued for, and that he never agreed, even as a compromise, to take anything less than $150.
The judgment of the court below must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine,!.:
This is an action in the nature of quo warranto, brought originally in this court, ostensibly for the purpose of inquiring by what authority the defendants, John Maloy, and others, are assuming to exercise the powers, duties, and functions of officers of the city of Council Grove, as a city of the second class, but really for the purpose of having the question determined whether the said city of Council Grove is a city of the second class, or not. If Council Grove is a city of the second class, then it is admitted by the prosecution that the defendants are rightfully assuming to exercise all the powers, duties, and functions as officers of said city, as a city of the second class; but if Council Grove is not a city of the second class, then it is admitted on the other hand by the defendants that they are wrongfully assuming to exercise the powers, duties, and functions of officers of said city, as a city of the second class. The action was brought in this court in the name of the state of Kansas by and on the relation of the county attorney of Morris county, in which county the said city of Council Grove is situated, and the action is prosecuted in this court by said county attorney and the attorney general. Some of the facts of this case have been admitted by the pleadings, others have been agreed upon by the written stipulation of the parties, and the balance of them have been proved by the introduction of evidence on the trial. The facts so far as it is necessary to state them, seem to be substantially as follows: On the 14th of March 1872, the said city of Council Grove was a city of the third class, and contained a population of about ten or eleven hundred inhabitants. It has never before, or since, had a population of two thousand inhabitants. On that day an act of the legislature, entitled, “An act authorizing cities therein named to become cities of the second class,” which was approved 29th February 1872, took effect. (Laws of 1872, pp. 231, 232.) That act provided as follows:
“From and after the next municipal election which shall be held under the provisions of the act governing cities of the second class, the cities of Osage Mission, 'Wichita, Council Grove, and the town of Sabetha in Nemaha county, shall be constituted cities of the second class, and governed in all respects by the acts governing cities of the second class; and it is hereby made the duty of the mayor and council of said cities, respectively, to immediately, upon the passing and taking effect of this act, to divide said cities respectively into two or more wards, said division to be in operation at said municipal election, and also to give notice, as is provided to be given under the act governing cities of the second class, for the election of a mayor and councilmen, and all other elective officers provided for by the act governing cities of the second class; provided, that all ordinances which shall be in force in said cities respectively, as cities of the third class, not inconsistent with the acts governing cities of the second class, at the date of the next municipal election, shall remain in force until changed or repealed by ordinances duly enacted.”
Under this act the city of Council Grove was duly organized as a city of the second class. It was so organized during the months of March and April 1872, and it has continued to act as a city of the second class ever since. It was never organized as a city of the second class in any other manner than as above stated. There is no pretense that it was ever organized under the provisions of section 1 of the act to incorporate cities of the second class, approved 28th February 1872, (Laws of 1872, page 192;) and as before said, it has never had the requisite population of two thousand inhabitants to organize under that act.
It is admitted by the parties to this case that the only question involved in this case is, whether the said special act authorizing the cities of Osage Mission, Wichita, Council Grove, and the town of Sabetha, to become cities of the second class, is valid, or not. If it is valid, then the prosecution admits that the city of Council Grove is a city of the second class, and that the defendants in this case ai'e the proper officers thereof; but if said act is not valid, then it is admitted by the defendants that said city is not legally a city of the second class, and that they are not legally officers of any such city, and that this action may be maintained.
It is claimed by the prosecution • that said special act is unconstitutional, and therefore invalid, for three different reasons. We shall however consider only the third reason presented by the prosecution, for we think that that reason is sufficient. The act is in contravention of section 1, article 12, of the constitution. That section of the constitution provides that “The legislature shall pass no special act conferring corporate powers.” Here we have a special act conferring immense corporate powers — all the corporate powers of cities of the second class — upon each of four different municipal corporations. This cannot be done. The reasons we think are obvious. But if any person should desire-to pursue the subject further, we would refer him to the following authorities, to-wit: City of Atchison v. Bartholow, 4 Kas. 124, 141, et seq.; City of Wyandotte v. Wood, 5 Kas. 603, 607, 608; Gilmore v. Norton, 10 Kas. 491, 503, et seq.; State v. Cincinnati, 20 Ohio St. 18, 34, et seq.
It follows, that the said city of Council Grove is not rightfully or legally a city of the second class, and that the defendants are not rightfully or legally-officers of any city of the second class. Judgment will therefore be rendered in favor of the state, and against the defendants, as prayed for in the plaintiff’s petition.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 10th of February 1877, Ansel Gridley filed his petition in the district court of Sumner county, against E. E. Jones, to obtain thg office of justice of *he Peace for Oxford township in said county, alleging, among other things, that Oxford township was duly organized as a municipal township in the month of October 1871,'and that the first general election for township officers held in said township was held on the first Tuesday of the month of April 1872; that at the general election of November 1876, Ansel Gridley, E. E. Jones, and one George T. Walton were candidates for the office of justice of the peace for Oxford township, and at such election said Gridley received forty-seven votes, said Walton twenty-one votes, and said Jones three votes; that on the 30th of November 3876, said Gridley and said Walton received certificates from the county clerk of Sumner county, notifying them that at said general election they were elected justices of the peace for Oxford township in said county; that on the 23d of said November said Gridley filed his oath of office and official bond in the office of the clerk of said county of Sumner; that on the 3d day of January 1877, the official bond of Gridley was examined by the board of county commissioners of Sumner county, and by said commissioners was declared to be insufficient in form, and further time granted to file a sufficient bond; that on the 17th of said January Gridley filed an additional bond, sufficient in form, with the-said county clerk, which last-mentioned bond was approved by the board of county commissioners on the 3d of February 1877. To said petition, Jones filed his answer alleging, among other things, as follows: First: At the general election in November 1875, notice was given the electors of said Oxford township, by proclamation of the sheriff of said county, that there was to be elected at the said election a justice of the peace for said township, and at said election, he, the said E. R. Jones, was elected justice of the peace for said township for the full term of two years, commencing in the month of April 1876, as the successor of one Joseph Sleigh, who was elected justice of the peace for Oxford township in April 1874 for the full term of two years; and that by virtue of said election in November 1875, he was peaceably and quietly exercising and enjoying said office of justice-of the peace for said Oxford township. Second: The official bond said to have been filed by Ansel Gridley on the 23d of November 1876 was an insufficient bond, and not such an one as the statutes required — the substance of the said bond being to the effect, that the said Ansel Gridley was bound in the sum of one thousand dollars “to do his duty as justice of the peace of Oxford township,” and that said bond was by the county commissioners of said Sumner county, and on the 3d of January 1877, declared to be insufficient, and unconditionally rejected, and that further time was not given him to file an additional bond. Third: At the time said Gridley claims to have been elected, no notice was given to the electors of Oxford township that there was a'justice of the peace to be elected for said township, and at'said election the electors of said township did not know there was a justice of the peace being voted for. There were, at the time of said election, one hundred and ninety-two electors in Oxford township, and one hundred and seventy-two votes were polled at said election in said township, and the .votes cast at said election for Gridley for justice of the peace were quietly, fraudulently, underhandedly, and unbeknown to defendant Jones, and to the great mass of the voters of Oxford township, worked' up by Gridley, and the will of the great mass of the voters of said township was defeated at said election by reason of the electors of said township having no notice that there was a justice of the peace for Oxford township being voted for. To this answer Gridley demurred. The demurrer was sustained, and judgment rendered for Gridley, the defendant in error, and against Jones, the plaintiff in error.
I. The township of Oxford having been organized in October, 1871, the first regular election for justices of the peace thereof was held in April 1872, and thereafter elections could *n ea°h year. (Odell v. Dodge, 16 Kan. 446.) Joseph Sleigh was elected justice for Oxford township in April 1874, and he was entitled to his office for two full years, to-wit, until April 1876; but section 1 of ch. 92, laws of 1875, changed the annual township election from April to the Tuesday succeeding the first Monday in November;- and instead of holding the township election in Oxford township in April 1876, it was properly held in November of that year, and the persons elected as justices of the peace in November 1876, were entitled to hold their offices for two years after having duly qualified as provided by sections 16 and 19 of the act relating to township officers. If the plaintiff in error was elected in November 1875, to fill the vacancy of Joseph Sleigh, then, as he could only hold during the unexpired term of said justice, and until his successor had qualified, upon the qualification of Gridley he should have surrendered up his office. The act of 1875 expressly continued the terms of the township officers, expiring upon the election and qual ification of their successors in April 1875, till after the township election in November of that year; and those township officers, whose term of office, prior to the adoption of that statute, would have expired in April 1876, were by said act necessarily continued in office until their successors were elected and qualified at the election held in November of that year. The act did not contemplate nor provide for the election in November 1875 of those township officers, whose regular term of office would expire in April 1876, and the plaintiff in error, under an election held in November 1875, had no right to retain possession of his office against the defendant in error, duly elected in November 1876. Township officers hold their offices for the terms for which they are elected, and until-their successors are elected and qualified.
2. Election notice; duty of sheriff. 3. Omission to give notice. Omission of voters to vote. II. The answer attempted to show the election of Gridley was void because of the paucity of votes cast at the election, and the want of notice. Section 5 of the act relating to elections; (Gen. Stat. 404,) provides, it shall be the ¿|uj.y 0f ¿^g sheriff, fifteen days at least, before the holding of any general election to give public notice by proclamation throughout his county, of the time of holding such election and the officers at that time to be chosen. By the laws of 1875, the township elections are holden at the same time of the general elections, hence, the notice of the sheriff, required by said section 5, should contain all the officers to be chosen at such election, and this would include not only the district officers, but the township officers. But the want of notice is not alone sufficient, where the law fixes the time for holding the election, to invalidate it. Although the regular elections for justices of the peace may be held in the various cities and townships in the state in different years, still, if the body of voters are not misled by want of such notice, or if a large majority simply refuse to vote, because of a difference of the construction of the law, and have actual or constructive notice of the election, the election will not be void. Again, if the electors generally participate in the election, such election, if held at the time' fixed by the law, will be valid, in the absence of any statutory notice or proclamation. In this case, the record shows that Gridley received forty-seven votes, Qeorge q\ Walton, twenty-one, and E. R. Jones, three. The whole number of votes cast was one hundred and seventy-two. There is no allegation in the answer that the electors of Oxford township had no knowledge of an election for justices of the peace at said November election, and if it was intended to make this issue, this pleading should-have contained such an averment. The statement that the electors “did not know there was a justice of the peace being voted for,” and that the votes polled for the defendant in error were “quietly, underhandedly, and unbeknown to plaintiff,” so cast, were immaterial allegations, and presented no defense to the petition, nor any issuable fact concerning the knowledge of the voters of an election for justices of the peace at such time.- All persons are presumed to know the law; and although voters who receive no notice, actual or constructive, probably cannot be required to take notice as to which alternate year’s justices are to be elected, still, as it was incumbent on the defendant in the court below, under the pleadings, to have averred the want of knowledge on the part of electors that justices of the peace were then to be elected, the failure so to do rendered the statements of the defense incomplete, and the demurrer to such portion of the answer was properly sustained.. Sufficient facts to have vitiated the election were not averred. The case of Wood v. Bartling, 16 Kas. 109, is not applicable, as in that case there was in fact no election for a second justice of the peace. Only one justice of the peace was voted for. Three-fourths of the electors voted against Wood, and less than one-fourth voted for him.
4.Official bond o justices of the peace. III. It is further urged, that the failure of Gridley to qualify within the exact terms of the statute, barred him from any privilege he might have been entitled to, even it his election was valid, it appears from the record that he was notified of his election on the 10th of November 1876, that on November 23d he filed his oath of office, and a certain bond. This bond, instead of complying with the statutory form, was substantially to the effect that Gridley was bound in the sum of one thousand dollars “to. do his duty as justice of the peace of Oxford township.” On the 3d of January 1877, the county commissioners declared this bond insufficient, and on January 17th a new bond was filed by Gridley in full compliance with the statute. Under these facts, Gridley did not vacate his office. There is no provision of law in the acts relating to township officers, that the neglect or refusal to deposit or file the official bond within the time prescribed vacates the office, hence the case of The State v. Matheny, 7 Kas. 327, does not apply.
At the time the action was brought in the court below, the defendant in error was entitled to the office in controversy, and the judgment of that court must be affirmed.
Brewer,-J., concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Prior to the 2d of February 1876, one F. A. Higbee commenced an action in the district court of Lyon county against Robert McMillan, the plaintiff in error, to recover possession of certain specific personal property. Pursuant to section 178 of the civil code, (Gen. Stat. 662,) a written undertaking was executed in said action by Baker, defendant in error, and John Sebastian, as surety, to McMillan. On 6th October 1875, said McMillan recovered judgment in the replevin action against Higbee for a return of the personal property, and $130 damages for detension, or for $858 in case a return could not be had, and $215.55 costs. Upon the failure to obtain the property under the judgment, and the execution having been returned nulla bona, on 2d February 1876, McMillan filed his petition against Baker and Sebastian on the replevin undertaking signed by them. No service was had upon Sebastian, and Baker only defended. Before the commencement of this action on the undertaking, and on October 30th 1875, Higbee had filed his petition in error in this court to reverse the judgment of October 6th 1875, in the case of McMillan against him. No supersedeas order was obtained in the latter case, and the cases of Higbee v. McMillan, in the supreme court, and of McMillan v. Baker, in the district court, were pending a portion of the same time. No reference was made by Baker in his answer to the error proceedings then being prosecuted in this court by Higbee, and on March 27th 1877, McMillan obtained judgment in the lower court against Baker for $1,108.98, and costs. The case was tried by the court, a jury having been waived. On the 9th of May 1877, this court decided the case of Higbee v. McMillan, and reversed the judgment of October 6th 1875, and awarded a new trial. (18 Kas. 133.) On May 22d 1877, and while the March term of the district court of Lyon county was still in session, the defendant in error filed his motion in that .court, to set aside, vacate and annul the judgment rendered on March 27th 1877, on the ground that since the rendition of the judgment, this court had reversed the judgment of the district court of Lyon county in the case of Higbee v. McMillan, that being the judgment upon which the cause of action of McMillan v. Baker was founded. Upon the hearing of the motion the mandate of this court in Higbee v. McMillan was produced and given in evidence, and the judgment of the March term 1877, was thereon, and at the same term, vacated and set aside. The plaintiff in error excepted to such ruling of the district court, and now asks that the order of vacation be reversed.
The court below committed no error. The relief allowed assimilates, to, the remedy provided by writ of audita querela. The original purpose of the writ, and the one to .... which it was generally confined was, that of relieving a party from the wrongful acts of his adversary, and of permitting him to show any matter of discharge which may have occurred since the rendition of the judgment, lest, as Blackstone says, “in any case there should be an oppressive defect of justice, where a party who hath a good defense is too late to make it in the ordinary forms of law.” Powell on Appellate Proceedings defines the writ, “as a proceeding in order to be relieved from the final judgment and execution, on account of somé objection which cannot be relieved by proceedings in error. It is founded upon some matter of equity, or fraud, or release, or something of the like nature, which has transpired since the rendition of the judgment, that renders it inequitable and unjust that it should be enforced.” (Ch. 10, p. 377.) These writs of audita querela have now become almost obsolete, being generally superseded by the more convenient practice of obtaining the relief upon motion; and wherever these writs would lie at common law, as a rule, relief may be granted on motion. If the right to relief is questionable, or if the facts of the case are disputed, the court may remit the moving party to a formal petition, so that issues may be duly joined. In this case, there was no issuable question in controversy on the motion, after the introduction of the mandate of this court; and as the district court has ample control over its own orders and judgments during the term at which they are rendered, and the power for good cause, to vacate or modify them in its discretion, the order vacating the judgment was rightfully granted.
The strongest argument made against the action of the district court is, the statement that no supersedeas bond, or undertaking to stay the execution, was ever given jQ proceeding in error in this court in the case of Higbee v. McMillan, and that the defendant in error did not apply to the court below before judgment for a stay of proceedings in his case, until this court had disposed of the original case in which the bond was given. The authorities, however, make these no sufficient reasons for denying the motion, as it is held, that a party is not charged with neglect, because he omits or fails to give a supersedeas bond on suing out a writ of error, and that it would be a very onerous rule to deny the moving party relief, because he did not apply for and obtain an order staying proceedings, as the granting of such an order would have rested largely in the discretion of the court. Ætna Insurance Company v. Aldrich, 38 Wis. 107; Parmalee v. Wheeler, 32 Wis. 429; Cooley v. Gregory, 16 Wis. 322; Wetmore v. Law, 34 Barb. 515.
The order of the district court is affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The facts in this case are substantially as follows: The defendant in error was subpenaed as a witness on behalf of the prosecution in the case of “The State of Kansas v. A. J. Mowrey,” a criminal action pending in the district, court of Shawnee county. He attended the court in obedience to the subpena, but was not called as a witness, because a molle prosequi 'vras entered in the action, with leave of the court. Afterward he brought an action to recover his fees and mileage as a witness. The court below rendered judgment against plaintiff in error.
Was the county liable? We answer no. It is conceded that the county is not liable in the absence of a statute male ing it liable; and counsel for defendant in error confesses he cannot point out any section of the statute clearly and certainly fixing such a liability. He ingeniously argues however, that by a liberal construction of the statutes relating to costs, it is evident the legislature did not intend to leave the costs in cases of acquittals, and where nottes were entered, unprovided for; and he very forcibly suggests that the lawmakers never intended to tempt a witness to color or distort his testimony with the reward that, if the defendant was convicted, he would obtain compensation for his services and expenses, but if discharged, he could have no pay.. The latter portion of the argument of counsel would be valuable to present to the attention of the legislature; but with our view of the law we think there has been an omission to provide by statute for the payment of the costs in such cases as this, and that omission .we cannot supply. We cannot legislate. The argument of counsel tends to the belief that this omission was accidental, rather than intentional, as stated in The State v. Campbell, 19 Kas. 481. Whether the omission was an oversight, or intentional, is really immaterial. It exists in fact, and we cannot cure the defect of the statute. The State v. Campbell, supra.
The judgment of the district court must be reversed, and the case remanded with instructions to sustain the demurrer of plaintiff in error to the petition filed by defendant in error.
All the Justices concurring.
The case of the board of county commissioners of Pawnee county v. J. M. Miller, on error from Pawnee district court, was also an action against the county to recover witness fees in a criminal action, and is here on demurrer to the petition. In accordance with the decisions in The State v. Campbell, 19 Kas. 481, and Commissioners of Shawnee County v. R. H. Ballinger, just decided, the judgment of the district court must be reversed, and'the case remanded with instructions to sustain the demurrer of the plaintiff in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Yalentine, J.:
This was an action of replevin, brought by Yanderslice as receiver, etc., against Reuben Knapp, A. J. Selover, and John D. Hier, for the recovery of certain mill-fixtures. The petition alleges in substance as follows: Jonathan Rigby owned certain land, on which was a grist-mill, and in which mill were said fixtures. Rigby, on 15th September 1874, mortgaged said property to the St. Joseph & Kansas Loan and Building Company, to secure the sum of $5,000. Whether said mortgage is yet due, and whether the property is worth $5,000, or $500,000, or any other amount, is not stated in the petition. Afterward, Rigby, for the purpose of defrauding said loan and building company, severed said mill-fixtures from the mill, and sold and delivered them to the defendants, Knapp, Selover, and Hier, who purchased and received the same for a like purpose. Afterward said company commenced an action against Rigby, Selover, and others. What kind of an action this was, and for what purpose it was commenced, is not stated in the petition. But in such action the plaintiff, Wanderslice, was appointed a receiver, “and as such receiver was duly authorized and empowered to bring this present action, and all other proper actions, to recover possession of” said mill-fixtures. Afterward he brought this action of replevin against Knapp, Selover, and Hier, to recover said mill-fixtures. He alleged the foregoing facts in his petition,' and also alleged as a.conclusion therefrom that he had “a special ownership and interest in” said mill-fixtures, and that he was “entitled to the immediate possession thereof.” He also alleged that the defendants then had the possession of the said mill-fixtures, and that they wrongfully and unlawfully detained the same from him, although he had demanded the same from them, and he prayed for a judgment for the recovery of said property. The defendants demurred to this petition, on the grounds - “first, that plaintiff has not legal capacity to sue; second, that said petition does not state facts sufficient to constitute a cause of action.” The court below sustained this demurrer, and the plaintiff now brings the case to this court for review.
1. Removal of fixtures by mortgagor of land; title after severance. 2. Rights of mortgagor of real property; remedy mortgagee. The judgment of the court below must be affirmed. Rigby was the owner of said land and mill-fixtures, both before and after~said mortgage became due, (if it has become due, but it has not been shown or stated whether or not it has become due,) until he sold the fixtures to the defendants, when the fixtures probably became the property of the defendants. But at no time did the land, or the mill, or the fixtures, become the property of the mortgagee, or any person holding or claiming under the mortgagee. (Chick v. Willetts, 2 Kas. 385, 391.) While Rigby was the owner of the property he could lawfully sever the fixtures from the mill, and sell them to the defendants, or to any other person, without their becoming the property of the mortgagee, or any person claiming, under the mortgagee. (Clark v. Reyburn, 1 Kas. 281; Cooper v. Davis, 15 Conn. 556.) A mortgagee is a mere lien-holder; and, whether he shall ever own any part of the mortgaged property, or not, depends upon whether the mortgage shall ever be foreclosed in the district court, and whether he shall be the successful bidder at the sheriff’s sale of the property. Any other person has just the sume right to bid on the property and to purchase it, that he has. A mortgagor of real estate has the right to possession of the mort- . gaged property, and the right to sever and re- ° _ A J ° move the timber, wood, sand, earth, coal, stone, or anything else, therefrom, and to sell the same, unless it unreasonably impairs the mortgage security; and when it impairs the mortgage security the remedy of the mortgagee is not at law, but in equity; not in replevin to recover the property severed from the realty, but generally injunction to restrain the commission of waste upon the realty. The facts of this case however would not sustain any action, either at law or in equity; for it does not appear from the petition that the mortgage security has been unreasonably impaired. The mortgage-debt appears to be $5,000, and interest; but the mortgaged property, without said fixtures, may be worth ten or twenty times that amount.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This action was commenced before the probate court of Lyon county, and tried on the 30th of July 1877. Judgment was rendered for the defendants in error. The administrator felt aggrieved at the judgment, and attempted to appeal the case to the district court. On August 7th, during the term at which the decision was made, and within ten days from the rendition thereof, the administrator gave notice of an appeal in open court, which was entered by the probate judge on the record; but the claimant was not present in person, nor by attorney, at the time the notice was given. On August 17th, the plaintiff in error procured a certified transcript of the proceedings in the case and filed the same in the district court, where the case was docketed. The administrator had omitted to make or file in the probate court the affidavit required by section 190, Gen. Stat., p. 469. On the 11th of September, the defendant in error filed a motion in the district court to dismiss the appeal, for several reasons, and among others, because of the failure to file the affidavit prescribed by said sec. 190. This motion was sustained, and plaintiff in error claims the district court committed error therein, and now asks that the case be remanded with instructions to the court below to reinstate the appeal. Section 190 reads as follows:
“The applicant for such appeal, his agent or attorney, shall file an affidavit that the appeal is not taken for the purpose of vexation or delay, but because the affiant believes that the appellant is aggrieved by the decision of the court.”
Section 192 reads: “After such affidavit * * * has been filed, the appeal shall be granted.” And section 193, as amended by sec. 1, laws of 1872, p. 273, provides that—
“Where such an appeal is taken, the judge of the probate court shall transmit to the clerk of the district court a full and complete certified transcript of all the records and proceedings pertaining to the matter in which the appeal is so taken.”
In the absence of the affidavit, the case was improperly docketed in the district court for trial, as no appeal had been regularly taken or granted. The filing of an affidavit in the district court, pending the motion to dismiss, did not cure the fatal defect existing in the proceedings, and was not a valid substitute for the oath required to be taken and filed in the probate court, prior to the granting of the appeal. The action of the district court in dismissing said appeal must be affirmed, as the affidavit prescribed in sec. 190 is a prerequisite to the granting of an appeal, and is also essential to the jurisdiction of the probate court allowing it.
We pass over the question submitted concerning the demand for a change of venue, as the record is not in a condition for us to consider that matter, owing to the failure to have it appear that all the evidence or affidavits introduced upon the hearing of the motion are before us. In any event, the refusal to grant this motion worked no material injury to the rights of the plaintiff in error, as* no appeal had ever been taken by him from the judgment of the probate court, as authorized by the statute, and he was not entitled to have the case retried in any district court.
The judgment of the district court must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Yalentine, J.:
This was a criminal prosecution for burglary in the first degree, and for grand larceny. The first and principal question in the case is, whether the court below erred in permitting the witness D. A. Hook to testify concerning certain information which led to finding the stolen property, and which was given by the defendant under a promise from said witness, (who was at the time city marshal of the city of Leavenworth, and had the defendant un der his charge,) and from the owner of the property, that the defendant should not be prosecuted. The object for introducing this testimony of Hook, and the extent to which it was allowed to influence the findings of the jury, will be shown by the following instructions given by the court to the jury:
“In this case you will not consider any evidence showing or tending to show a confession of the guilt of the defendant, but you may consider any evidence in the case tending to show that the property alleged to have been stolen was found at places indicated by the defendant.” * * * “In considering the evidence in this case, the jury may take into consideration the fact that-the information which led to finding the stolen property was given by the defendant.”
We do not think that the court below erred in permitting said evidence to be introduced. (See the numerous authorities cited by counsel for The State.) That the property alleged to have been stolen was stolen, and that the information which led to finding it was furnished by the defendant, were facts, not controverted in the court below, and were proved beyond all possible doubt; and hence the court below did not err in speaking of them as facts.
The defendant also claims that the court below erred in refusing to give the following instructions to the jury:
“The crime must be proved as alleged. The mere fact that the defendant showed the marshal where the goods were, is not evidence of the burglary charged in the information. It does not follow from the mere fact of the knowledge of where the goods were, that the defendant committed the burglary.”
“If the statements of the defendant were given by him, under a promise that he should not be prosecuted, such evidence is not sufficient to convict the prisoner.”
Now the court might possibly have given these instructions to the jury without committing any material error, but still their tendency would have been to mislead the jury. One proposition contained in them is, that “the mere fact that the defendant showed the marshal where the goods were, is not evidence of the burglary charged in the information.” Now everything charged by the state, in this case, was proved beyond all controversy, except the mere fact of the connection of the defendant with the burglary and larceny charged in the information. The burglary and larceny were committed at the same time, as parts and portions of the same transaction, and were proved on the trial beyond all controversy to have been committed by some one just as charged in the information; and all that was left doubtful in the case, or which required any serious consideration by the jury, was the question whether the defendant had any connection with said burglary and larceny. The state relied upon the fact, that the defendant knew where the stolen goods were, as some evidence tending to show that the defendant was in some way connected with the commission of the burglary and larceny. The instruction asked however was virtually to the effect that such fact was no evidence of the defendant’s connection with the burglary or larceny. We do not think that the court erred in refusing to give the same. (Walker v. Commonwealth, Court of Appeals of Virginia, July term 1877, 5 Reporter, 281.) All the instructions necessary to be given concerning this subject, or concerning any statements made by the defendant, were given by the court.
The defendant claims that the court below also erred in not giving all of its instructions in writing. Now from anything appearing in the record, all the instructions were in writing. But it is claimed that the court read certain sections of the statutes to the jury without incorporating them in its written charge, but merely referring to them therein. This is probably true, although the record does not show it; but if true, still we do not think that the court committed any material error, even if it committed any error at all. (Swartwout v. M. & L. Rld. Co., 24 Mich. 390, 407.) The reading of a statute applicable to the case, and the failure to incorporate the same in the written charge, will not, under such circumstances, be sufficient to authorize the reversal of the judgment.
The defendant claims that he ought to have a.new trial for the following reasons:
“During the argument of the'case [in the court below] the defendant’s counsel stated that the defendant had been in prison awaiting this trial since April last. The county attorney in his closing argument to the jury stated, by way of answer to the statement of defendant’s counsel, as a fact, that the defendant had been in prison since April last for a crime of which he had been previously convicted —to which statement the defendant by his counsel at the time objected; and the court then told the jury that they should pay no attention to, and not take into consideration, any such statement; and there was no evidence of either statement of counsel introduced in the case.”
The statement of the county attorney will not under the circumstances of this case authorize a new trial. The defendant, before objecting to the statement of the county attorney, should have repudiated the improper statement of his own counsel.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This case has been Here before, .having been brought then upon an attempted “case-made.” The case-made having been improperly signed and allowed, the petition in error was dismissed. (18 Kas. 425.) , Counsel for plaintiff in error had however, fortunately for bis client, preserved some of the errors complained of in two bills of exceptions, which were as appears by the journal entry duly allowed, signed and ordered made a part of the record. The dismissal of one petition in error, on the ground that the record attached to it is illegal and insufficient, is no bar to a subsequent action based upon a legal and sufficient record. There has been no adjudication upon the merits, no inquiry into the alleged errors. The record has not heretofore been so presented that we could examine it.
Many matters are presented by counsel for plaintiff in error, only two of which however we shall notice. And the first is as to the competency of certain jurors. The case was called for trial on the 17th of December, a jury was impanneled, the plaintiff offered his testimony and rested, and the defendant offered testimony to which plaintiff objected. The objection was sustained, and there-J J , * upon defendant obtained leave to amend his bill of particulars by verification. Upon this plaintiff applied for a postponement. The application was sustained, the jury discharged, and the trial postponed to the 28th of December. On the 28th, the case was again called for trial, and, several of the jurors who served on the trial upon the 17th, were placed in the jury box. The defendant duly objected to them on the ground that they had served as jurors upon a former trial, but the court overruled the challenge, and they were sworn and served as'jurors a second time. In this was error. It is good ground of challenge by the statute, that one “has formerly been a juror in the same cause.” (Gen. Stat., p. 680, § 270.) And to bring one within this ground of challenge, it is not essential that the case shall have been at such former time fully tried and a verdict returned, or the jury discharged because unable to agree. It is enough if the case has been partially tried, and a portion of the testimony received. The idea is, that a juror having once served will have opinions more or less strongly settled from the testimony he has heard, and of- course he will have such opinions whether he has heard much or little testimony. Indeed, it would seem as though there were greater danger of injustice from a juror who has heretofore heard only one-side of the case than from one who has heard both. But the statute authorizes no inquiry as to the extent of the influence already exerted, or the strength of the opinions already formed by the testimony. It is enough, that serving as a juror on a former trial, he has heard the testimony then offered. It deems it safer to disqualify all such jurors. Counsel say in the brief that nothing was given in evidence on the former trial but the note sued on, and that the jurors could not have been unduly influenced by that. The record does not disclose what testimony was offered. It simply shows that plaintiff offered his testimony, and rested. And on the second trial, as appears from the first bill of exceptions, he offered considerable testimony besides the note. But whether much or little, they heard all the plaintiff’s testimony; and if that made out a prima faeie case, and they heard nothing more, their convictions in favor of the plaintiff would naturally become more settled and fixed during the interval between the two trials, and they would scarcely enter the second. inquiry entirely impartial as between the parties. Famulener v. Anderson, 15 Ohio St. 475,
The second matter we shall notice is, the refusal of the court to permit the defendant to offer any proof of the matters alleged in the fourth paragraph of his answer. The action was on a note given for a sewing machine. The fourth defense alleges substantially, that at the time of the purchase of the machine, and the giving of the note, the vendor and payee agreed to furnish the defendant all the material necessary ior the manuíacture oi quilts ' t A enough, at a stipulated price, to pay for the raachine, and that payment of the notes was to be demanded only in case of a failure on the part of the defendant to manufacture the material as furnished into quilts; that the defendant agreed to do this work, and has ever since been ready and willing to do it, and has repeatedly demanded of the vendor such material, and the latter has refused to deliver it, and that such contract was in parol. Of the rules applicable to a question of this kind, that parol testimony is inadmissible to contradict or change the terms of a written contract, and that the fact of a written contract does not exclude the possibility of a valid cotemporaneous parol contract, there can be little question. The difficulty is in the .application of these two rules. It is alleged that there was a cotemporaneous contract, and its terms are given. As the court rejected all evidence thereof, it must, for the purposes of the case, be taken to be the fact. Was it valid ? Or perhaps more correctly, was it merged in the written agreement? That depends upon whether it was a separate and independent agreement. It may be conceded that some of the allegations in this defense are of matters conflicting with the terms of the written contract; but still we think that it is distinctly averred that there was a cotemporaneous contract for work, a contract separate and independent from the contract evidenced by the note, and in no respects contradictory and conflicting with its terms. The one is a promise to pay money; the other a contract to furnish work. The existence of either, neither conflicts with nor contradicts the other. A., contracts to sell to B. a horse, at a stipulated price. The contract is reduced to writing. At the same time A. contracts with B. to furnish him work, hauling, plowing, or otherwise, with the horse sold. The latter is in parol — yet it in no manner conflicts with or contradicts the former. Both may have been made, and both be valid. So here, the vendor sold to the vendee a sewing-machine, at a stipulated price. The contract therefor was reduced to writing. At the same time he made another contract, to furnish work to be done on the machine. This was in parol. But its existence in no manner limits or contradicts the former. Each might have been made without the other. They are separate and independent contracts — one a contract of sale, and the other a contract for work. By breach of the former, the vendee became subject to an action for the stipulated price. By breach of the latter, the promisor became liable for whatever damages the other party suffered from the former’s failure to furnish the work; and as the note was not transferred until after due, such claim for damages could be set up as a defense in this action. We have ,assumed in this, that such a contract in fact existed. We of course do not know what the testimony will disclose; but having alleged such a contract, defendant was entitled to offer testimony to prove it. Babcock v. Deford, 14 Kas. 408. For these errors the judgment must be reversed, and the case remanded.
It may be remarked, in view of the new trial, that one ■\yho is in fact the owner of a note negotiable by indorsement may maintain an action upon it, although no indorsement has been made to him; and that an indorsement subsequent to the commencement of the action made by, the payee may relate back to and í’atify a prior sale of the note by the agent of the payee. A new trial is awarded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought by Bayne against Bailey, to recover certain personal property described in the plaintiff’s petition. The defendant answered, setting up certain special denials, and also setting forth certain new matter. The plaintiff replied, denying generally all the new matter set up in the defendant’s answer. Upon these pleadings the parties went to trial. The case was tried before the court and a jury. The jury after hearing the evidence found a verdict in favor of the defendant, and against the plaintiff. The court then rendered judgment on the pleadings in favor of the plaintiff, and against the defendant, botwithstanding the verdict. This was done on the ground that the defendant’s answer was defective, and that it did not state any defense to the plaintiff’s action. This is the only ruling of the court below complained of, and hence the only question for us now to determine is, whether the answer of the defendant was really defective or not.
The answer denied that the plaintiff was entitled to the property replevied, denied that the defendant unjustly or wrongfully detained the same, or any part thereof, and denied that the plaintiff had sustained any damage. The answer then set up (in greater detail than we shall state them) the following facts: The defendant was a constable; an order of attachment against the goods and chattels of the plaintiff Bayne was issued by P. S. Soper, a justice of the peace, and placed in his ('defendant’s) hands, in the case of “Henry Stoeffler v. B. B. Bayne,” then pending before said justice. In pursuance of said order, and in obedience thereto, defendant levied the same on the property in controversy, and he lawfully held the same, under and by virtue of said attachment, until the same was taken from him in this replevin case; and defendant then alleges that he is entitled to the possession of the property, and demands a return of the same.
This is a good answer, beyond all doubt. The denials alone were amply sufficient. Under the first two, the defendant might have proved any defense that he might have had. And there is nothing admitted or stated in the allegations of new matter that would destroy the force or sufficiency of these denials. It is true, that the defendant inferentially admits that the plaintiff was the owner of the property at the time it was taken under the attachment. And the defendant also admits that he detains the property from the plaintiff, but still he does not admit that the plaintiff is entitled to the possession of the property, or that he (the defendant) wrongfully detains the same from the plaintiff. These he still denies by his answer; and in replevin the wrongful detention of the property is the gist of the action. Brown v. Holmes, 13 Kas. 482, 491, and cases there cited; Yandle v. Crane, 13 Kas. 344.
The defendant in error claims, that, as the defendant below admitted inferentially that the property belonged to the plaintiff below at the time it was attached, and that the defendant held the property under an order of attachment issued by a justice of the peace, that the defendant should have set forth in full all the proceedings of the justice, so as to have shown the nature of the action in which the order of attachment was issued, and also so as to have shown that the justice had jurisdiction to issue the order of attachment. We think'this was unnecessary; and especially so in this case, as the plaintiff replied to the answer, and then went to trial upon the pleadings in all respects as though the answer was sufficient, and raised no question as to its sufficiency until after verdict against him. As we have before said, in replevin, all that is necessary in order to enable the defendant to prove any defense, is, to deny all the allegations of the plaintiff’s petition. And when the defendant has.done this, if he should then admit some one or more of them, but not all, the admission of a portion of the allegations could not be construed into an admission of the whole of them. Therefore, where the defendant in substance admits that the plaintiff is the owner of the property in controversy, and that the defendant detains it from the plaintiff, but denies that the plaintiff is entitled to the possession of the property, or that the defendant detains it wrongfully, the defendant is not bound to make any very elaborate or circumstantial statement of the facts to show why the plaintiff is not entitled to the possession of the property, or why the defendant does not wrongfully detain it. We think the defendant made a sufficient statement of the facts in this case; and the statement was certainly sufficient after verdict, as no question as to its sufficiency was raised prior to that time. But the defendant in this case held the property under “mesne * * *. process issued against the plaintiff,” and as the property was not exempt under the exemption laws, as was virtually found by the jury, could the plaintiff under any other circumstances maintin replevin for the recovery of the property? Gen. Stat. 661, §177, subdivision 4; McGlothlin v. Madden, 16 Kas. 466, 467, 468; Westenberger v. Wheaton, 8 Kas. 169, 176, 177.
The judgment of the court below will be reversed, and cause remanded with the order that judgment be rendered on the verdict of the jury in favor of the defendant and against the plaintiff.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 29th of September 1874, the plaintiffs obtained a judgment against the Osborne City Town Company, in the district court of Osborne county, for the sum of $864.43, and costs, for lumber furnished to said company to build a certain building in Osborne City, afterward used as a court-house. After the issuance of an execution upon this judgment, and its return nulla bona, a suit was brought by plaintiffs to subject the equitable interest which it was alleged the town company had in certain real estate in Osborne City to the payment of the claim of plaintiffs. The particular controversy was over the lots and premises upon which the court-house building erected by the company was situated. From the facts in the case it appears, that, prior to the 11th of December 1875, the premises, of which the court-house block was a part, were government land, and that on said last-named day it was entered by the probate judge of Osborne county as a town-site, for the benefit of the occupants thereof, according to their respective interests. Prior to this time, and in the years 1871, 1872, and 1873, the town company constructed the building upon the block in controversy, under an agreement with the county commissioners of the county that the building and the block should be the absolute property of the county, provided the county-seat was located at Osborne City. In October 1872, upon a vote duly taken, the county-seat was located at said city, and the county officers, in 1872, took possession of the premises with the consent of the town company, and since then such company has had no control over the building or premises, nor been in any possession of the same. On the 21st of February 1876, the commissioners appointed to partition and divide the town-site set off to the board of county commissioners of Osborne county the courthouse block, and on 23d March 1876 the probate judge executed to the board, and their successors in office, a deed for the premises.
Upon these facts the judgment of the district court was properly given for the defendant, to-wit, the board of county commissioners of Osborne county. At the time the building was constructed, the town company supposed it could occupy the town-site under the statute, and wishing to benefit its members by increasing the value of the property through the location of the county-seat of the county at Osborne City, it delivered up the premises to said county commissioners, and agreed to supplement this possession with a valid deed of the same. So far as it was able, prior to the levy of the execution, it gave all its interest, right, and title to the block and building to the board; but the decision of the Winfield Town Company v. Maris, 11 Kas. 128, disturbed the calculations of all parties, and afterward the block, as before stated, was deeded directly to the board and their successors. It is immaterial in this case whether the board of county commissioners of Osborne county were occupants and inhabitants of the town-site. If the deed to them was invalid, we cannot in this action set it aside. It clearly appears that at the time this suit was brought the town company had no title or interest in the' premises described, nor has it acquired any interest since. The plaintiffs háve no mechanic’s or other lien, and there is no allegation in the petition, nor any evidence to show, that the court-house was constructed to defraud plaintiffs, nor any one else. The original agreement of the parties was made in good faith, and the evidence does not justify us in saying that the commissioners of partition should have set apart the block to the town company. The only remedy the plaintiffs have is against the Osborne City Town Company. They cannot follow property owned and possessed by the county board; nor question the title of the board to property in which neither they nor the town company have any claim, interest, or estate.
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
Horton, C. J.:
This is an attempt by proceedings in the nature of quo warranto, to try the title of defendant to his seat in the house of representatives of the legislature of Kansas. The facts, as they appear by petition and answer, are, that the defendant is a citizen of Rush county, and at the general election in 1876 was voted for and received a majority of all votes cast in that county for representative from that county; that at this election less than 250 votes were cast; that at this time, Rush county was not attached to any other county; that upon the convening of the legislature, at the session of 1877, after due consideration, the house of representatives, by a majority of the members thereof then assembled, declared and adjudged the defendant to be the “legally-elected representative from Rush county,” and “entitled to a seat” as such member, since which time he has been and now is recognized as such member. (House Jour. 1877, p. 212.)
The attempt to determine the title of the defendant as a member of the legislature in this manner, must necessarily fail, for the simple reason that we cannot and ought not take jurisdiction of the case. We are powerless to enforce any judgment of ouster against a member of the legislature. While the constitution has conferred the general judicial power of the state upon the courts and certain officers specified, there are certain powers of a judicial nature which, by the same instrument, are expressly conferred upon other bodies or officers, and among them is the power to judge of the elections, returns, and qualifications of members of the legislature. This power is exclusively vested in each house, and cannot by its own consent, or by legislative action, be vested in any other tribunal or officer. This power continues during the entire term of office. Sec. 8, art. 2, State Const.; The State v. Gilmore, ante, p. 551.
Within certain constitutional restrictions, the executive, legislative, and judicial powers of the state, are independent and supreme; and neither has the right to enter upon the exclusive domain of the other. We should be passing beyond the limits of our own power to judge of the election or qualifications of a member of the legislature; and as the constitution has expressly confided this power to another body, we must leave it where it has been deposited by the fundamental law. If we are at liberty to interfere in this case, or, if with consent of the legislature we assume jurisdiction, we may review all similar decisions of that body, and in the end bring the legislative power of the state in conflict with the judiciary. The objections to such a course are so strong and obvious, that all must acknowledge them. We are not cited to a single case in the federal or state courts, where any member of congress, or any member of a state legislature, from the foundation of the government to the present time, has been ousted by quo warranto. And the admission of this fact of itself, after the extensive investigation of this subject by the learned attorney-general, is almost conclusive that none can be found, and that the exercise of such power is not only unwarranted, but unknown. Judge Cooley says: “ These powers, it is obviously proper, should rest with the body immediately interested, as essential to enable it to enter upon and proceed with its legislative functions, without liability to interruptions or confusion.” Const. Lim. 133.
It is insisted, upon the authority of Prouty v. Stover, 11 Kas. 235, that this court has expressed the right to make inquiry into the fact whether the district from which a member of the legislature is admitted, exists or not, and if it does not exist, the member may be ousted by the courts. In that case, it was only decided that where the legislature was sitting as an electoral body, in a contest concerning the validity of an election by such body, the courts were not precluded by the action of the house in admitting members from inquiring into the legality of certain representative districts, and the rights of the members admitted to seats from these districts to vote at such election. That decision is not in conflict with the view here stated, viz., that we have no jurisdiction, in a proceeding like this, to oust a person from his seat as a representative, after he has been declared and adjudged to be a member of the house by the power and tribunal having the exclusive authority to hear and determine that question. O’Ferrall v. Colby, 2 Minn. 180; McCrary on Elections, § 515; Hiss v. Bartlett, 3 Gray, 468; People v. Mahaney, 13 Mich. 481.
That our decision in this case may not be misunderstood, or misconstrued, we desire to say, that we do not decide that the house of representatives can consist of more than one hundred and twenty-five members, that being the maximum number allowed by the constitution; nor do we decide that the house, in the exercise of its power to judge of the election and qualification of its members, can legally admit to seats, as members, any number of persons in excess of one hundred and twenty-five; but our decision is, that, whether the house does or does not admit a greater number of persons as members than one hundred and twenty-five, this court has no jurisdiction to inquire by quo warranto, or otherwise, as to the right of any person to a seat as a member with a view of ousting him from his seat. Rightly or wrongly there, we are alike powerless in the premises. Whether or not an act passed by the votes of persons admitted as members in excess of the constitutional limit, (and not legally passed without such votes,) would, in a given case, be held constitutional and valid, can only be determined when presented in a proper action and in proper form.
The petition and proceedings in this action will be dis-r missed, at the costs of the plaintiff.
All the Justices concurring.
Tiiere was no election held on the day of the general election (November 4th 1873,) in Comanche county, but an election was held for Representative, and county officers, on the 3d of December 1873. (See House Jour. 1874, pp.383, 384.) | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action originally brought before a justice of the peace by the defendant in error against, the plaintiffs in error; and omitting the title, the following is a copy of the bill of particulars:
The plaintiff complains of the said defendants, and says, that heretofore, on the 17th of April 1875, one C. H. Hobart, and one Robert "Vanosdell, one of the above-named defendants, doing business under the firm-name and style of “Hobart & Vanosdell,” were indebted to the said plaintiff upon the following account, to-wit:
Hobart & Vanosdell, to William Ori, Dr.:
1876, Feb. 4, to 94 bu. and 15 lbs. wheat, @ $1.05,...................... §98.95
“ Feb. 22, to 105 bu. and 40 lbs. wheat, @ §1.05,................... 110.85
“ March 14, to 23J bu. wheat, @ §1.05,................................ 24.67
“ April 6, to 34 bu. and 40 lbs. wheat, @ §1.05,......................36.35
§270.82
Contra: April 6, 1876, by cash,............................................... §60.00
April 18, by cash,...................................................... 24.00
April 24, by cash,...................................................... 10.10
§94.10
Balance due........................§176.72.
And plaintiff further says, that on or about the 17th of April 1876, the said firm of Eloyd & Vanosdell, the defendants, verbally agreed with the firm of Hobart & Vanosdell, and in consideration of certain cash, merchandise, and accounts paid over, delivered, and assigned to them, to pay the above account, and did make two of the aforesaid payments on the same, and gave their receipt, and agreement in writing, in the words, letters, and figures following, to-wit:
“Sedgwick, Kansas, April 17th, 1876.
“Received of Hobart & Vanosdell, cash, merchandise, and accounts, to' the amount of two hundred dollars and 30-100, to pay Wm. Ort on wheat account. Floyd & Vanosdell.”
And plaintiff further says that said defendants, though often requested have totally failed, neglected to pay said plaintiff the balance due on said account. Wherefore plaintiff prays judgment against the said defendants for the sum of one hundred seventy-six and 72-100 dollars, and for the costs of this suit. Ady & Reid, Attorneys for Plaintiff.
The cause was tried and judgment had for the plaintiffs in error, from which defendant in error appealed to the district court of Harvey county. There, a jury being waived, the case was tried to the court, and judgment rendered for $179.44, and costs, in favor of Ort, defendant in error. The plaintiffs in error now complain of the judgment and proceedings, and allege the following causes for reversal:
1st. Because there was a failure of all evidence.
2d. The total failure on the part of defendant in error to allege in his pleading the fact that he had released the firm of Hobart & Vanosdell, and accepted Floyd & Vanosdell as his payor of the indebtedness sued for.
3d. The court erred in sustaining the objection of defendant in error to the following question asked of him on his cross-examination, viz.: “Was there not an agreement between you and Hobart, that you should sue Floyd & Vanosdell and make your money out of them, if you could, and Hobart to pay half the attorney-fee?”
The principles announced by this court in the following cases are virtually decisive of all the questions presented by the plaintiffs in error: Anthony v. Herman, 14 Kas. 494; Plarrison v. Simpson, 17 Kas. 508; Center v. McQuesten, 18 Kas. 476; K. P. Rly. v. Hopkins, 18 Kas. 494. The action of the defendant in error was maintained upon a written promise, or agreement, made by the plaintiffs in error, upon a valid consideration, to Hobart & Vanosdell, for the benefit of defendant in error; and the latter had the right to adopt the same as though made with him, notwithstanding he was not originally a party to it. The evidence fully sustained all the allegations in the pleading, and the prosecution of the ease on the promi.se and agreement of plaintiffs, in error to Hobart & Vanosdell was an assumption of the contract made for his benefit, and hence, it was unnecessary to allege in the bill of particulars that Hobart & Yanosdell had been released. The attempted cross-examination of Ort was also immaterial, and its rejection no ground for material error. Even if Hobart assisted the defendant in error in paying an attorney to collect the debt due on the promise of plaintiffs.in error, that would have been no reason to defeat the claim of the defendant in error.
The plaintiffs in error admit the execution of the instrument sued on, and their defense rested mainly on the fact that the defendant in error was not a party thereto, and that he had not made an agreement to release and discharge the old firm of Hobart & Yanosdell. The defense was not sufficient under the circumstances.
The judgment will be affirmed.
All the Justices concurring. | [
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Per Guriam:
All the legal questions involved in this case have already been passed upon and decided by this court in other cases. We cite below the decisions decisive of the matters presented:
I. The reply was waived, as the case was tried in every respect the same as it would have been tried, if a reply had been filed. Hopkins v. Cothran, 17 Kas. 173; Wilson v. Fuller, 9 Kas. 177, 190.
II. In regard to the allegation that the defendant in error had stated no facts to entitle him to the judgment that his mortgage was prior in right to the interest of the plaintiff in error to all of the tracts of land in controversy, see Barrett v. Butler, 5 Kas. 355, where it is held, that a reviewing court will consider all of- the pleadings on each side of the case, in determining whether a good cause of action or defense has been stated, as the case may be.
III. That the question of adverse and paramount title-may be litigated in an action to foreclose a mortgage, see Bradley v. Parkhurst, ante, p. 462.
IY. The judgment barring the rights and interests of the plaintiff in error, should be made to operate only in connection with the sale of the mortgaged premises, and after such sale has been made; and the judgment will be corrected accordingly. Short v. Nooner, 16 Kas. 220.
The costs in this court will be divided.
All the Justices concurring. | [
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Per Curiam:
This is an appeal from an order terminating alimony payments to the appellant, Mary J. Carlton. On May 7, 1970, the parties ended a twenty-two year marriage by divorce. The district court ordered an equal division of the property awarding property valued at $49,141 to each. The decree further provided for alimony payments to the appellant-wife of $250 per month until her remarriage or the death of either party. The appellee-husband regularly made such payments until January 15, 1974, when he filed a motion for their termination. On March 18, 1974, the district court terminated said payments effective after February 28, 1974, on the basis that “it would not be fair, equitable, or just in light of the circumstances as they exist at this time for defendant to . . . continue the alimony payments.”
Appellant claims error in three respects on this appeal. These center around the finding by the trial court that circumstances had changed so as to justify the termination of alimony and the sufficiency of the evidence to support that finding. The purpose of alimony is to provide for the future support of the divorced spouse. (Drummond v. Drummond, 209 Kan. 86, 495 P. 2d 994; Herzmark v. Herzmark, 199 Kan. 48, 427 P. 2d 465.) The amount thereof is to be based upon the needs of one party and the ability of the other party to pay. (Baumgardner v. Baumgardner, 207 Kan. 66, 483 P. 2d 1084; Cool v. Cool, 203 Kan. 749, 457 P. 2d 60.) A change of circumstances may justify a reduction of alimony. (Blair v. Blair, 210 Kan. 156, 499 P. 2d 546.) An examination of the record discloses substantial evidence of a change of circumstances. The role of this corut is not that of a trier of fact. We are required to accept the evidence which is most favorable to the prevailing party and where there is substantial competent evidence in the record to sustain the judgment, it is our duty to sustain it. (Wehking v. Wehking, 213 Kan. 551, 555, 516 P. 2d 1018.) See, also, Parsons Mobil Products, Inc. v. Remmert, 216 Kan. 256, 531 P. 2d 428.
A large portion of the appellant’s brief is devoted to a constitutional attack on K. S. A. 60-1610 (c). The thrust of this argument is that the statute denies to the appellant equal protection of the law. The statute provides for a modification of the amount of alimony not yet due, except that the amount cannot be increased without the consent of the party liable for the alimony. Appellant claims this latter portion discriminates against her. She argues that since women are usually the recipients of alimony this places them in a classification which has no rational relation to the purpose of the legislation, and constitutes invidious discrimination. The statute, however, explicitly provides that alimony, where deemed necessary and proper, may be awarded to either party. There is no male-female distinction made. Appellant’s argument that an invidious classification based upon sex exists is without merit. The statute is constitutionally valid.
The judgment of the district court is affirmed.
Fromme, J., not participating. | [
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Per Curiam:
On May 2, 1975, Jon Kent Lowe voluntarily surrendered his certificate admitting him to practice law in the courts of the State of Kansas, and it is By Order of the Court Considered and Accepted.
The Clerk of this Court is ordered and directed to mark the certificate void and to strike Jon Kent Lowe’s name from the roll of attorneys. | [
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The opinion of the court was delivered by
Foto, C.:
The appellant, H. V. Harrison, a Kansas resident, was served on April 2, 1974, with an order of garnishment by Gulf Insurance Company, the appellee. The order was based upon a judgment Gulf had obtained against one A. V. Bovee in Missouri, and which it had registered in Kansas under our Uniform Enforcement of Foreign Judgments Act, K. S. A. 1974 Supp. 60-3001, et seq. The day after being served with the order Harrison filed a motion to quash the garnishment. On April 19, 1974, the district court of Sedgwick County overruled the motion to quash, but stayed any further action on the garnishment until the disposition of Bovee’s motion for a new trial then pending before the Missouri court. Harrison has attempted to appeal from the district court’s order overruling his motion to quash.
In this case, as in all others, this court is obligated to determine whether or not it has jurisdiction even though the issue is not raised by the parties. Lira v. Billings, 196 Kan. 726, 414 P. 2d 13; Sherk, Administratrix v. Sherk, 181 Kan. 297, 310 P. 2d 899, and cases cited therein. If jurisdiction is lacking the appeal must be dismissed. Bates & Son Construction Co. v. Berry, 217 Kan. 322, 537 P. 2d 189; In re Waterman, 212 Kan. 826, 512 P. 2d 466; Sherk, Administratrix v. Sherk, supra.
Under Article 3, § 3 of the Kansas constitution this court has only “such appellate jurisdiction as may be provided by law.” Insofar as it is applicable here that law (K. S. A. 69-2102) provides that an appeal from the district court will lie as of right only from a “final decision” of that court.
No definition of “final decision” is contained in the statute but this court has previously construed it to mean, “one which finally decides and disposes of the entire merits of the controversy, and reserves no further questions or directions for the future or further action of the court.” Bates & Son Construction Co. v. Berry, supra, p. 324; Cusintz v. Cusintz, 195 Kan. 301, 302, 404 P. 2d 164. See also, Connell v. State Highway Commission, 192 Kan. 371, 388 P. 2d 637.
The overruling of a motion to quash an order of garnishment is not a final decision of the district court. No issue in this dispute was finally decided by the court’s ruling. The effect of the denial of the motion was simply to require the garnishee to answer the order of garnishment and set forth any defenses to the action he might have, and to allow the garnishment action to proceed through the regular prescribed procedure toward final judgment. The issues raised by Harrison in his motion to quash are not lost to him but can still be raised in any later appeal from the district court’s final decision of the garnishment action. (K. S. A. 60-2102 [a] [4].)
As stated in Connell t>. State Highway Commission, supra (p. 374), “The policy of the new code [of civil procedure] leaves no place for intermediate and piecemeal appeals which tend to extend and prolong litigation. Its purpose is to secure the just, speedy and inexpensive determination of every action.” To allow an appeal from an interlocutory order such as is presented in this case would be contrary to the policy of the code and set a precedent for future appeals which would serve only to delay and render more expensive the judicial process.
The appeal is dismissed for lack of jurisdiction.
approved by the court
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Foth, C.:
Plaintiff Jackie Gonzalez brought this action against Allstate Insurance Company, with whom he had an automobile collision policy, claiming it had defrauded him in repairing his car after an accident. His complaint is that the company, unbeknown to him, had the repair shop substitute used parts for the new ones he thought would be installed. A jury awarded him $1,500 in actual damages and $25,000 in punitive damages.
On Allstate’s posttrial motion the trial court set aside the award of punitive damages, finding that plaintiffs evidence fell short of the clear and convincing standard required to prove fraud. It did find it sufficient to establish a contract to repair which was breached, and permitted the verdict for actual damages to stand. Plaintiff has appealed from the order denying punitive damages; Allstate has cross-appealed from the judgment for actual damages.
The primary question is whether plaintiff’s evidence of fraud could reasonably have been found by the jury to have been clear and convincing. Taking that evidence, as we must, in the light most favorable to plaintiff it reveals the following:
On July 8, 1972, plaintiff damaged his 1970 Nova automobile. He called the Topeka Allstate office and was told to call their office in Kansas City. He called the number .given him and was told by a man there to get an estimate. He secured an estimate the same day from Larry’s Body Shop in Topeka, owned by Larry Purvis. The cost for body repairs and a new radiator was $523.15, plus a windshield for $95.10, or a total of $618.25.
On July 10 he called the Kansas City office again. He told them how much the labor would be and that all parts would be new except for the right front fender. They said “that was okay,” but he should get another estimate from the Topeka Chevrolet dealer. He did, and a few days later reported back that the second estimate was some $150 more than Larry’s. They said they would call him back.
In about two days they did call him, and the ensuing conversation is the critical piece of evidence in this lawsuit. As plaintiff recounted it:
“A. . . . they said, ‘Let’s have Larry’s Body Shop do the work;’ and I contacted Mr. Purvis, the owner of Larry’s Body Shop. I told him that they have accepted the estimate, and he told me to have a man from Allstate caE him and which I told him that they were going to do it because that’s what they said because, we are going to caE Larry's Body Shop to' teE them they approve the estimate.
“Q. What specificaEy did they say about Exhibit 1 (the estimate)?
“A. You mean the second time I called I talked to them?
“Q. Yes.
“A. Well, they said, ‘Let’s have Larry’s Body Shop do the repair of the car. We wiE contact Larry’s Body Shop,’ and then after that I caEed Mr. Purvis and told them, told him about it.”
On the strength of plaintiff’s assurances that Allstate would approve the job Larry Purvis started work on the repairs. He was in the early stages when, on July 17, there appeared on the scene one Ted Lemon, an Allstate claim adjuster from St. Joseph, Missouri. Lemon was handling Allstate^ Topeka claims while its Topeka adjuster was on vacation.
Lemon examined the car and prepared his own estimate o£ what should be done to restore it to its precollision condition. This called for used parts rather than new — in particular a re-cored radiator at $65 rather than a new one at $85, a used fender, and a re-chromed face bar. The windshield was excluded from this estimate since it was a separate loss and would come under plaintiffs comprehensive rather than his collision coverage. Some of the saving, on parts was offset by an increase in the labor charge, so that the final estimate came to $511.60, compared to Larry’s original $523.15 for the same work.
Lemon and Larry Purvis discussed the revised estimate and Purvis agreed to do the work according to the revision. It was his understanding that Lemon had or would secure an agreement on the changes with plaintiff. (Plaintiff testified that he never heard from Lemon, never talked to him, and never saw him until the day of trial.) After the agreement was reached with Purvis Lemon subtracted from the estimate $50 under the deductible clause of the policy, added $17.50 for towing charges, and gave Purvis a draft for $479.10, payable jointly to him and plaintiff. The windshield was replaced in a separate transaction.
Purvis completed the repairs, and on July 20, plaintiff picked up the car. Purvis had him endorse the draft and sign an Allstate release form. Plaintiff also gave Purvis a check for the $50 deductible, less a credit for towing charges he had already paid. He did not examine the car closely and did not know about the substitution of used parts. That night he had trouble with a water loss from the radiator; the next day, July 21, Purvis remedied this by tightening a hose clamp.
Just when plaintiff discovered the used parts is not clear although he found Lemon’s revised estimate in the glove compartment. In any event, on Sunday, July 23, he took the car back to Larry’s Body Shop and confronted Purvis. He was accompanied by his uncle, F. G. Manzanares, a Topeka attorney. Purvis then told him about Lemon’s visit, and that he thought Lemon had cleared the whole thing with plaintiff.
Plaintiff left the car there and returned with his uncle two days later for a second confrontation, this time with both Purvis and Allstate’s Topeka adjuster, Herbert Bolyard. Plaintiff, through his uncle-attorney, insisted that the repairs should have been made with new parts. Bolyard explained that the company had a right under the policy to use used parts, and it was their practice to use used parts whenever they could. The meeting was inconclusive. Plaintiff left the cm there a few more days. Then, because he needed it, he picked it up and started driving it. He continued to drive it until the following May, when he permitted the finance company to repossess it.
In the meantime plaintiff brought this action. He made no claim that Allstate had breached its original contract of insurance with him. (That contract limited Allstate’s liability for a partial loss to “what it would then cost to repair or replace the property or part with another of like kind and quality.” Used parts would, at least arguably, fulfill Allstate’s obligation under this clause.) Rather, his cause of action, particularly the punitive damage claim, was bottomed on fraud.
There were two possible hypotheses under which plaintiff could be entitled to punitive damages. Hess v. Jarboe, 201 Kan. 705, 443 P. 2d 294, established that a breach o,f contract, standing alone, does not call for punitive damages even if intentional and unjustified. But such damages are allowable if there is some independent tort indicating “malice, fraud or wanton disregard for the rights of others.” (Id., Syl. ¶2.) Under this doctrine plaintiff could recover punitive damages by showing that Allstate, through its Kansas City office, agreed with plaintiff to repair the car with new parts in accordance with Larry’s first estimate, and that Lemon knew of 'the agreement when he surreptitiously arranged for the substitution of the used parts. Lemon’s knowledge of the agreement and concealment of its breach would supply the element of fraud. The trial court examined this hypothesis and found plaintiff’s evidence that Lemon knew of the alleged promise by the Kansas City office was not of the requisite quality.
The second hypothesis would require a showing that when the Kansas City office agreed to repair with new parts the unknown agent who made the agreement knew that the company never intended to honor such an agreement. This would amount to fraud at the inception of the alleged agreement. Although contractual fraud requires the false representation of a material existing fact, rather than a promise of something to be done in the future, an exception exists when the promissor has no intention of carrying out the promise at the time it is made. Under those circumstances the promissor’s intent is the existing fact which is fraudulently misrepresented. See, Edwards v. Phillips Petroleum Co., 187 Kan. 656, 360 P. 2d 23, and cases cited at p. 660.
We take it that this was really plaintiff’s theory. Thus plaintiff’s uncle testified that when he complained to plaintiff’s Allstate agent about how the matter had been handled, “he said that’s the way the insurance companies do work and that we lawyers didn’t know anything about insurance.” To the same effect he testified that when he confronted Bolyard with the two estimates, ‘He said this is the way the insurance company works that they put used parts whenever they can. He either said that they used used parts whenever they can or whenever they can get by with it. I can’t remember his precise words, but they tried to use used parts.” The thrust of this testimony was to show that using used parts was 'the company’s standard procedure. The inference would be, under plaintiff’s theory, that the Kansas City agent knew this when he was telling plaintiff to have Larry’s Body Shop do the work.
It may be seen that under either hypothesis it was essential to establish that the Kansas City agent actually entered into an agreement, independent of the insurance contract, that the work would be done according to Larry’s original estimate, complete with the new parts it contemplated. It would not be enough to sustain either theory that he merely agreed to repair the car in accordance with the policy, and that Larry’s Body Shop would do the work.
Proof of this new and independent contract, like the other elements of fraud, had to be by “clear and convincing” evidence. In re Estate of Shirk, 194 Kan. 424, 399 P. 2d 850, on rehearing 194 Kan. 671, 401 P. 2d 279; Fox v. Wilson, 211 Kan. 563, 507 P. 2d 252; and cases cited in each. In the first Shirk opinion, following our earlier decisions, we said that “The term ‘clear and convincing evidence’ means that the witnesses to a fact must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the details in connection with the contract must be narrated exactly and in order; the testimony must be clear, direct and weighty, and the witnesses must be lacking in confusion as to the facts at issue.” (Syl. If 2.)
It is on this point that plaintiff’s proof fell short. The only evidence of what the Kansas City agent told plaintiff came from plaintiff’s own testimony, quoted above. Of this testimony the trial court said, “Plaintiff oscillated between the statement that defendant would call to authorize the estimate and the statement that the defendant would merely call to ‘have Larry’s Body Shop do the repair of the car.’ ” There is, as pointed out above, all the difference in the world between these two versions. Under the first there might have been an agreement to use new parts; under the second there was merely an agreement to have Larry’s do the work. The latter version was the one given when plaintiff was asked “specifically” what he was told. We do not see how this “oscillating” testimony can reasonably be called clear and convincing under the test laid down in our cases. The facts are not “distinctly remembered,” and the “details in connection with the contract” cannot be said to have been “narrated exactly and in order.” This is not a matter of reweighing the evidence but of determining whether what evidence there was could reasonably be said to meet the standard required by law. We hold it could not.
It follows that the trial court correctly found that plaintiff did not sustain his burden of proving fraud, and did not err in rendering judgment for the defendant on the punitive damage issue, notwithstanding the verdict.
On its cross-appeal most of Allstate’s points deal in one way or another with the issue of punitive damages. In view of our disposition of that issue all such points are moot.
Allstate relies on Fieser v. Stinnett, 212 Kan. 26, 509 P. 2d 1156, for the proposition that its release was a complete defense. Such reliance is misplaced. That case follows long-established precedent in holding that a unilateral mistake of fact will not vitiate a release where there is no fraud, duress, undue influence or mental incapacity. The doctrine presupposes that the parties have an equal motive and opportunity to discover the facts. Here, under plaintiff’s testimony, at the time he signed the release he had no reason to believe he was not getting what he thought he had bargained for. More importantly, under plaintiff’s testimony there was a failure of consideration. He gave the release in return for a repair job with new parts; what he unwittingly received was something less. To him, it was as if the company had stopped payment on its settlement draft. Compare Reynard v. Bradshaw, 196 Kan. 97, 409 P. 2d 1011; Grohusky v. Atlas Assurance Co., 195 Kan. 626, 408 P. 2d 697. And see, 66 Am. Jur. 2d, Release, § 13; 76 C. J. S., Release, § 20. We think the validity of the release was properly submitted to the jury, who resolved the issue against the company.
Although plaintiff’s evidence of the terms of the claimed bargain was not “clear and convincing,” it was sufficient to support a finding, by a preponderance of the evidence, that such an agreement was in fact made. Hence there was a submissible jury issue and the trial court did not err in overruling defendant’s motion for a directed verdict on the claim for actual damages.
Finally, on the amount of actual damages, there was opinion testimony that making the repairs with used parts instead of new reduced the value of the car by $250 to $300. The difference was largely attributable to the fact that a knowledgeable prospective buyer could more easily tell that the car had been involved in a collision. There was also a claim for unreasonable delay in completing the repairs, valued in the testimony at $10 per day. Under the general verdict rendered there is no way of telling how much, if anything, the jury allowed for this element. Repairs according to the claimed contract were, of course, never completed. In addition, the jury was instructed without any objection appearing in the record that “In any event you should award plaintiff such sum as will fairly and adequately compensate him. The amount of the award rests within your said [sic] discretion.” The only limit imposed was the $2,000 claimed in the petition. Despite the scantiness of the evidence on actual damages we are not convinced that a remittitur is required.
The judgment is affirmed.
APPROVED BY THE COURT.
Fromme, J., not participating. | [
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Per Curiam.
Affirmed.
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The opinion of the court was delivered by
Price, J.:
This is an appeal by a landowner and arises out of a condemnation proceeding.
The landowner, Gutting-Greenlease Investment Co., Inc., hereafter referred to as plaintiff, owned 359.16 acres of land immediately south of Topeka, being bounded by U. S. Highway 75 on the west, 37th Street on the north, Adams Street on the east, and a public road on the south known as 45th Street. The Kansas Turnpike Authority found it necessary to acquire a portion of the land for construction of what is known as the South Topeka Interchange. In so doing it took a total of 32.25 acres, including 901 feet of highway frontage.
The court-appointed commissioners made a total award in the amount of $69,046.14. Plaintiff landowner, being dissatisfied, appealed to the district court.
The trial resulted in a verdict in the amount of $60,848, and, in addition, the jury answered nine special questions. Plaintiff’s motion for a new trial being overruled, it has appealed.
The jury allowed $52,060 for the 901 feet of highway frontage taken and $8,788 for other land taken. It found the value of the remaining 1216 feet of highway frontage, both before and after the taking of the 901 feet, to be $56,800 — in other words, that the remaining highway frontage had not been damaged by the taking of a portion thereof. The jury also found that the reasonable market value of the approximately 320 acres remaining east of the Santa Fe right-of-way, both before and after the taking, was $160,000 — in other words, that such remainder had not been damaged by the taking. In answer to question 9, the jury found there had been “no change” in the reasonable market value of the approximately 327 acres remaining immediately after the taking.
From these special findings it will be seen that the jury allowed what it thought to be proper amounts for highway frontage and other land taken, and further found that the remaining highway frontage and remaining land had not been damaged by reason of the taking.
In its brief plaintiff states that the gist of its complaint “is that it was paid a grossly inadequate compensation for its property taken and allowed nothing for severance damages.”
Although there are seven specifications of error, most of plaintiff’s contentions appear to be that the court erred in its rulings on evidence. No complaint is made as to the court’s instructions or concerning special questions given or refused. And neither do we have any question concerning “access” rights or concerning any theory of “unit use” of the property in question. Plaintiff concedes that none of the alleged errors, standing alone, is of sufficient gravity to require a reversal, but contends that all taken together — they require the granting of a new trial.
Considerable evidence was introduced by both sides, much of it being in the nature of testimony by expert witnesses well qualified to testify as to land values in the area. As usually is the case in matters of this kind, their testimony varied considerably. Perhaps there were a few instances in which, from a purely “technical” view, plaintiff might be considered to have a valid complaint concerning some of the trial court’s rulings. From a study of the record, however, it may not be said that any prejudice resulted. Both sides appear to have been given a wide latitude in the introduction of testimony as to values. The jury’s special findings were well within the evidence, including those findings that no damage whatever resulted to the remaining highway frontage and other land because of the taking.
In the absence of any complaint concerning instructions it must be presumed the jury was fully and correctly instructed on all issues in the case, including the various elements to be taken into consideration in assessing damages. During the course of the trial the jury viewed the property in question and its special findings clearly indicate that it had a full comprehension of the entire matter.
Various other complaints are made concerning matters occurring at the trial. They have been examined and considered but are found to be without merit and therefore will not be discussed. An examination of the entire record convinces us that nothing approaching prejudicial error occurred at the trial and that the chief complaint appears to be merely that the jury did not allow as much damage as plaintiff thought it was entitled to receive. This, of course, is a “gamble” which every landowner or condemner takes in an appeal from the award of commissioners in a condemnation case.
The special findings and general verdict having been approved by the trial court, and no error of a prejudicial nature being shown, the judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
The plaintiff, Howard B. Fine, commenced two actions in the district court; one against the Neale Construction Company, Inc., and the other against the appellant, the Telephone & Power Supply Co., Inc., to recover certain salary and expense money. The actions were tried together, and the trial court made findings of fact and conclusions of law in the case of Fine v. Telephone & Power Supply Co., Inc. and entered judgment for the plaintiff. This appeal involves the latter case only.
It is unnecessary to set forth the pleadings of the parties except to say that the plaintiff alleged the defendant Telephone & Power Supply Co., Inc. (telephone company) was indebted to him for salary and wages in the amount of $1,750, representing seventeen and a half months’ employment at $100 a month, which indebtedness was denied by the telephone company, and it alleged that plaintiff was an officer and director of the company and that he and other officers agreed to cancel and relinquish all salaries and claims for service and reimbursement for expenses incurred by them after May 31, 1953, and until the financial condition of the company improved which had not occurred at the time of plaintiff’s resignation on November 15, 1954. It was also alleged plaintiff was indebted to defendant in the sum of $152.34 for goods and merchandise.
A summary of the evidence follows. Dory J. Neale, Senior, and R. Ellen Neale, his wife, were the principal stockholders of the Neale Construction Company, Inc., and the defendant telephone company. Neale was president and Mrs. Neale was secretary of both companies.
In the early part of 1952, Fine, a man with 20 years experience in the telephone industry, investigated the Neale Construction Company, Inc. (construction company) preparatory to investing $27,000 in it. Following his investigation of the books of the construction company, and in March, 1952, Fine invested $25,000 in cash and assigned to it a jeep trencher machine worth $2,000. As a result of this investment, Fine commenced work for both the construction company and the telephone company, although he did not invest in the telephone company at that time. He was employed full time by the construction company at a salary of $685 a month, and was elected a director and made third vice president of the telephone company at a salary of $10 a month.
Plaintiff fulfilled a number of duties for the telephone company: he hired and helped to train new personnel; assisted in the office; made public relation contacts with contractors, and perhaps most important, he spent three months total time preparing a quotation or a type of sales catalogue which was used extensively by the telephone company and was used continuously following his resignation on November 15, 1954.
On May 8, 1953, Fine’s salary as vice president of the telephone company was increased to $100 a month retroactive to June 1, 1952. When that salary was paid to him in July, 1953, he used the $1,200 to purchase stock in the telephone company.
On March 31, 1954, at Neale’s direction, all accrued officers’ salaries in the amount of $2,880 were canceled on the general journal of the telephone company. That figure represented total salaries due officers, including plaintiff’s salary of $100 a month, from June 1, 1953, to March 1, 1954. There is nothing in the record to indicate that Neale’s action was the result of a meeting of the directors or officers of the telephone company. On the contrary, the record indicates his action was prompted by a letter from the telephone company’s accountants.
Neale testified that in March, 1954, he and Fine agreed to cancel all officers’ salaries retroactive to June 1, 1953, and to discontinue future salary payments until the telephone company’s capital and credit improved. Fine denied that he agreed with Neale to cancel his salary, but admitted that about April 4, 1954, Neale told him the board of directors of the telephone company had discontinued officers’ salaries. However, the record indicates the board of directors did not take formal action on the salary matter until December 28, 1954, after Fine had resigned from the board of directors on November 15, 1954. At that meeting the following resolution was adopted to ratify the purported agreement of officers and directors to serve without salaries:
“Resolved, that verbal agreement of the Directors and Officers, to serve without salary in previous year, to continue for corporate year 1954, or such time as corporation shows a reasonable profit.”
The trial court found, among other things, that plaintiff was an employee of the telephone company; that there was no agreement entered into between the plaintiff and the defendant whereby plaintiff agreed to cancel all or any part of his wages or expenses owed him by the defendant, and that the defendant was entitled as a set-off against the amount owed from the defendant to the plaintiff the sum of $152.34. In harmony with its findings the trial court entered judgment in favor of the plaintiff for $1,597.66 with interest at 6 percent. Following the overruling of its motions for a new trial and to vacate the judgment, the defendant telephone company perfected this appeal.
The defendant’s nine specifications of error were consolidated in its brief and argued under two principal points: First, that the trial court erred in its finding of fact that (a) plaintiff was an employee of the defendant, and (b) no agreement was made to cancel the officers’ salaries; and second, that plaintiff is estopped to assert his salary claim to the prejudice of other stockholders and creditors of the defendant.
In reviewing this record we conclude the case must be decided upon whether there was substantial evidence to support the trial court’s finding that there was no agreement entered into between plaintiff and defendant whereby plaintiff agreed to cancel all or any part of wages or expenses owed to him by the defendant. This is particularly true in view of the testimony of Neale, president of the telephone company and its principal witness, that the only reason Fine should not recover was because he had agreed to cancel his claim for salary and reimbursement for expenses until the financial condition of the company had improved and that it had not improved prior to Fine’s resignation.
In this connection Neale testified that the telephone company was operating at a loss; that it needed working capital and did not have funds to pay salaries; that in March, 1954, he and Fine agreed to cancel all accruals of officers’ salaries retroactive to June 1, 1953, and to discontinue future salary payments until the company’s credit could be improved; that appropriate entries were made on the company’s books under the direction of its accountants, and that the financial condition of the company had worsened since 1954. On the other hand, Fine testified that Neale told him the board of directors had discontinued officers’ salaries, but he denied any agreement with Neale to cancel and waive his claim for salary at $100 a month and for reimbursement for expenses.
The trial court heard the testimony and observed the witnesses, and in its letter to counsel indicating it was rendering judgment in favor of the plaintiff, said:
“. . . After getting into the record of this case it finally resolved itself into a question of whether or not the parties 'had entered into an agreement to cancel and forego certain wages and expenses owed by the defendant to the plaintiff. On this question the plaintiff testified and the defendant testified. There is no other evidence which I consider competent upon which I can determine the fact as to whether or not such contract was entered into; the wit ness for the defendant claims that such contract was entered into and the plaintiff denies any such contract. The burden of proof being upon the defendant on this issue, I have resolved that issue in favor of the plaintiff, and for that reason am entering the judgment as indicated by the enclosed Findings of Fact and Conclusion of Law.”
During the examination of Neale, the court had the following colloquy:
“The Court: Now, Mr. Neale, were you pretty well acquainted with Mr; Fine at the time he was with your company? A. I just had a very casual acquaintance. The Court: What I mean is, did you know anything about his financial standing? A. No, his personal finances, well, I take that back, sir, we did have a financial statement from Mr. Fine which he presented us with when we were trying to get a small business loan and that was, they required a personal statement of Mr. Fine, myself and Mrs. Neale. The Court: What I am leading up to, did you know whether or not Mr. Fine had any independent income other than his salaries from the company? A. No, I had no way of knowing whether he had or not. The Court: Was there any discussion between you how this man was going to live during all these months without a salary and keep on working? You can answer yes or no. A. I think that was probably discussed to some extent. The Court: Did he tell you where he was going to get everyday living expenses? A. No. The Court: Or where he was going to get the money that he was advancing for expenses for the company and which he was waiving? A. No. The Court: That was never gone into? A. He never told me that, sir. . . .”
While this interrogation may have had an effect on the trial court’s findings, it was the function of the trial court to weigh Neale’s testimony together with all other testimony and evidence shown by the record that had any bearing upon the question. As trier of the facts, it is the province and duty of the court to determine what weight and credence is to be given the testimony of the witnesses on both sides (Collins v. Hayden, 104 Kan. 351, 179 Pac. 308; Commerce Trust Co. v. Dern, 120 Kan. 135, 242 Pac. 131; In re Estate of Grobbe, 167 Kan. 640, 654, 208 P. 2d 243). Appellate courts cannot determine from the cold records submitted the persuasiveness of testimony which a trial court may have believed. The demeanor of a witness may be, and sometimes is, most persuasive. In the instant case there was substantial evidence to support the finding that Fine made no agreement to cancel wages or expenses owed to him by the defendant, and we cannot say the trial court erred upon that question.
We think it immaterial to the decision in this case that the trial court found the plaintiff to be an employee of the telephone company. During the period in question, he was a member of the board of directors, and, under the trial court’s finding, was entitled to the wages and salary due him.
The defendant lastly contends that plaintiff was estopped to assert his claim for wages and salary. We do not agree. We have no quarrel with the authorities cited concerning the fiduciary status of directors and officers of corporations that they may not utilize the knowledge gained from their official positions or the power they have as members of the board to gain an undue advantage over other creditors; that they may not misappropriate its assets, but must use every honorable means to enhance its general interest for the special advantage of the stockholders and creditors; that in dealing with the corporation, they must give it the benefit of their careful and best judgment and must exercise the highest and most scrupulous good faith, and that self-interest must be sacrificed for the corporate good. While those principles are sound and we adhere to them, they are not applicable to the facts and circumstances presented by the record. An officer’s right to a salary, like any other known right, may be waived, if such clearly appears to have been his intention (Fletcher Cyc. Corp. Perm. Ed., Vol. 5, § 2145, p. 606). But, Fine’s knowledge of Neale’s statement that officers’ salaries had been canceled is no indication of his acquiescence in the cancellation made solely at Neale’s direction. Moreover, the payment of a corporate officer’s salary, where it is not a device to defeat other stockholders and creditors, is not a misappropriation of the corporate assets. Here, Fine was authorized payment of salary at $100 a month, and, until such time as that claim was satisfied, or he waived his right to it, it was an enforceable claim against the telephone company. And, as we have seen, the trial court’s finding that Fine did not agree to waive or forego his claim for salary and reimbursement for expenses was supported by substantial evidence and will not be disturbed on appellate review.
It not having been made to affirmatively appear that the trial court erred in any respect, the judgment in favor of the plaintiff is affirmed.
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|
The opinion of the court was delivered by
Habman, C.:
This is an appeal by the state corporation commission from a district court order vacating a commission order denying interim rate relief to Kansas-Nebraska Natural Gas Company, Incorporated, pending final decision by the commission on Kansas-Nebraska’s application to make certain changes in its charges for natural gas service. Meanwhile the corporation commission complied with the district court’s order by permitting the requested interim rates to go into effect under a refunding obligation.
Kansas-Nebraska (referred to hereafter as K-N or appellee) is engaged in the production, purchase and gathering of natural gas in Kansas, Nebraska, Oklahoma, Colorado, Wyoming and Texas, its sale at wholesale in Oklahoma, in its transmission, sale at wholesale and retail distribution in Kansas, Nebraska and Colorado, and its transmission and retail distribution in Wyoming. It provides gas service to customers in the four states through a system of interconnected pipelines extending from the various sources of supply in those states and Texas. Its facilities for the transportation of natural gas in interstate commerce and its sales for resale in Nebraska and Colorado and to three gas distribution companies in Kansas are subject to regulation by the Federal Power Commission. To the extent the company’s facilities and sales in Kansas, Colorado and Wyoming are not subject to FPC jurisdiction, they are under the regulatory authority of the respective state utility commissions in those states (in Nebraska retail gas rates are regulated by each municipality served).
By way of prelude to the present proceeding it may be noted that on July 5, 1972, K-N filed with the Kansas corporation commission (sometimes referred to hereafter as KCC) an application for increased rates for natural gas services to its Kansas customers whose rates are regulated by KCC, based on a test year ending February 29, 1972, in which a 9.47% rate of return was sought (Docket No. 95,765-U). KCC approved an annual increase of approximately $703,000 effective May 7, 1973, and a purchased gas tracking increase of approximately $205,000 and it made a finding that a rate of return within the range of 8.03 to 8.35% on the Kansas jurisdictional rate base was reasonable. Application for judicial review filed with the Finney county district court resulted in an additional annual revenue increase of $100,000. The new rates, reflecting a rate of return of 8.10%, went in effect September 26, 1973.
On October 26, 1973, K-N filed another application with KCC requesting permission for a further increase in rates (Docket No. 95,957-U). The proposed increase was based on a test year of May 1, 1972, through April 30, 1973. A rate of return of 9.78% was sought. The date the application was filed KCC issued an order assessing the costs of investigation of the application against K-N and thereafter employed Elmer Fox and Company, certified public accountants, to assist its staff in reviewing K-N’s books and records. Fox, through its partner at Russell, Mr. Don L. Arnold, commenced its review of K-N’s records March 4, 1974, and completed the field work on April 12, 1974. Meanwhile, on March 6, 1974, K-N filed its motion for interim relief with KCC seeking permission to place into effect on a temporary basis, subject to refund on final decision, the proposed new rates sought in the October 26, 1973, rate application. The motion, which is the subject of this appeal, cited increased costs, delay in Fox’s investigation with consequent delay in decision of the main application, and gas conservation measures adopted by its customers as factors reducing its earnings to such a level that interim rate relief was necessary to prevent confiscation of its property by denial of a fair rate of return.
The motion for interim rate relief was heard by KCC on April 16 and 23, 1974. Several utility customers of K-N were permitted to intervene, including Central Kansas Power Company, Inc. At the hearing K-N offered four exhibits and the testimony of James Asbury, its vice-president of operations, and Hassel Sanders, its vice-president of accounting. Their testimony was directed toward showing that as a result of its customers’ recent conservation efforts there had been a drastic reduction in sales volumes. Mr. Asbury predicted an annual reduction of six percent in domestic and commercial sales volume. The predictions were based principally on a test comparing a three-day average peak consumption in three Kansas towns (Quinter, Leoti and Tribune) during the months of January, 1973, and December, 1973 (K-N used January, 1973, in making the test rather than December, 1972, because in the latter month an unusual amount of gas had been delivered for commercial grain drying operations). This test indicated a ten percent decline in deliveries for the winter season. Mr. Sanders testified he revised K-N’s initial proposed rate schedules taking into account increased costs of service and decreased revenue due to customer conservation efforts. His conclusion was that after projected adjustments K-N was earning only 1.26% return on its property in Kansas under the present rates. The rates proposed in the October 26, 1973, application were based on a new allocation formula used in arriving at a rate base for Kansas customers. In previous rate cases K-N had started with only that part of its facilities in Kansas, Oklahoma and Texas which were utilized for delivery of gas to its Kansas customers. Facilities located in Wyoming, Colorado and Nebraska, not utilized for delivery of gas to Kansas customers, were excluded as not being used or useful to them. In the current application K-N started with its entire plant system except for an isolated local distribution system in Texas, and then allocated its system-wide plant and expenses between its Kansas jurisdictional customers and its other customers on the basis of annual, peak and winter heating season volumes and annual and peak MMcf-miles. K-N had not previously used this method of allocation before KCC. In its motion for interim rate relief K-N asserted that based on its new projections it can expect to receive $6,728 per day less revenue until its proposed rates are put into effect.
On May 29, 1974, KCC denied K-N’s motion for interim rate relief. In its memorandum order it summarized the evidence before it and then made the following findings of fact and conclusions of law:
“2. There is no specific statutory provision for the granting of interim rate relief on an emergency basis as sought by Applicant and although the Com mission is vested with broad power to regulate public utility rates, adjustments in rate cases cannot be made on speculation and conjecture.
“3. That the Commission has jurisdiction to consider and determine the question of interim rates on an emergency basis. The burden, however, is upon the Applicant to prove the need for emergency rate relief with evidence indicating that earnings have declined to such a point that the utility cannot be expected to continue to render efficient and sufficient service to its customers.
“4. That the Applicant has not sustained its burden of proof, and that the decline in the company’s earnings is not of such an adverse nature as to warrant the extraordinary remedy of emergency rate relief. Such decline does not threaten the financial integrity of the company, nor does it threaten the continuation of reasonably efficient and sufficient service to the public. The company is not suffering a usurpation or confiscation of its property by reason of its existing rates. The record is devoid of any threatened reduction of service to customers resulting from a lack of sufficient capital or operating revenues.
“5. That at least a portion of Applicant’s financial problem has been brought on by the management policy decision to husband natural gas in a period where conservation measures by residential users have decreased sales to that class of customers. At the same time, interruptions of industrial customers are at the highest level in the company’s history. This policy has contributed substantially to Applicant’s decrease in revenue. The Applicant has proven reserves of over 16 years. It cannot be said that conservation measures by residential customers are entirely responsible for the company’s decreased revenue picture.
“6. The Applicant has based its Motion, in large part, on studies of sales through one heating season to show the effect of conservation on sales and has annualized the results. No concrete data was available to indicate what effect conservation measures would have on usage during summer months. The Applicant has merely speculated as to what the total annual effect conservation measures will have on sales. In fact, there was no evidentiary data that conservation efforts exercised during the last heating season, from which Applicant made its study, will be permanent or have any lasting effect. Again, such an assumption by the Applicant is purely speculative. Emergency rate relief, or for that matter permanent rates, cannot be granted on speculation or conjecture. The Applicant has the burden of showing by concrete evidence that the company is in such a position that if emergency rate relief is not forthcoming, the company will not be able to reasonably serve its customers, meet day to day operating expenses, or meet current payroll requirements. Here the Applicant has not met the required burden.
“7. There has been no showing that the Applicant cannot acquire adequate capital. On its face, the 1973 Annual Report issued by the Applicant, is favorable, indicating a dividend of $1.09 per share on common stock, based on company earnings per share in 1973 of $2.10.
“8. In the past, such as in Docket No. 95,765-U, this Applicant’s last request for rate adjustments', the Commission adopted a specific Mcf mile allocation formula appropriate to Kansas-Nebraska. Applicant now urges a new allocation procedure in this case that has never before been proposed by the Applicant or considered by this Commission. For this Commission to grant interim rate relief before fully analyzing and evaluating the untested allocation procedure presented by the Applicant would be patently reckless. Such an authorization is not in the public interest and is not a sound regulatory act by this Commission.
“9. Company figures indicate that for the test year ending April 30, 1973, revenue from Kansas jurisdictional sales was $10,326,293 and that for the same period jurisdictional cost of service was $12,865,302, which left a deficiency of $2,539,009. Kansas-Nebraska’s witnesses indicated that since the end of the test year, that the company made a study of the eifect conservation measures have had on the deficiency in revenue. The company indicated that when conservation measures are taken into consideration the Kansas jurisdictional revenue would be $9,612,995, the cost of service would be $12,464,029, which results in a deficiency of $2,851,034. Both sets of figures for the test year are predicated on the new allocation formula proposed by the Applicant and in order for this Commission to arrive at the computations presented by the Applicant, this Commission must subscribe to all of the adjustments made to the base period to arrive at the test period and accept as presented, the proposed allocation procedure, including construction in progress. The Applicant has not considered in any of its calculations reduction of expenses due to increased curtailments which resulted in an increase in unsold gas, its figures for purchased gas, or increased revenues from extracted products. This Commission believes that to grant interim rate relief on the evidence presented would be entirely too tenuous.
“10. The Applicant suggests that it is losing $6,278 per day in increased revenue and that since December 1, 1973, this has added up to loss of increased revenue of $860,085. These figures are also presented by the Applicant based on the supposition that this Commission will be in total agreement with all respects of the proposed allocation formula. This Commission would indeed be derelict in its duty to approve interim rate relief, an extraordinary remedy, without first fully considering this new allocation formula.”
K-N thereafter filed an application for rehearing which was denied. It then filed an application for judicial review in the district court of Finney county, requesting that KCC’s order be vacated and set aside. K-N also filed in that court an application for stay of KCC’s order of denial and requested that KCC be enjoined from preventing it from implementing the interim rates pending determination of its application for an increase in rates.
Transcripts of the hearings before KCC were filed in the district court. On August 9, 1974, following an informal hearing that court entered an order staying KCC’s order denying the interim rates and it remanded the matter to KCC with directions to issue a proper interim rate order within twenty days or the interim order requested by K-N would go into effect. KCC promptly filed notice of appeal to this court from the district court’s August 9th order and also requested this court to stay that order. After a hearing held August
20 — 217 Kan. 28, 1974, this court denied KCC’s request for stay, reserving ruling on the merits of the appeal.
Rather than issuing its own order implementing interim rates KCC on August 29, 1974, accepted and filed the rates tendered by K-N. On October 15, 1974, the district court heard K-N’s application for review of KCC’s order denying interim relief. The district court’s final order of that date included the following:
“The Court, being fully advised in the premises, makes the following Findings of Fact and Conclusions of Law for the-purpose of deciding the Application of Judicial Review:
FINDINGS OF FACT
[Findings 1, 2 and 3 recite procedural history].
“4. [Here the district court identified the witnesses and exhibits presented at the hearings held before KCC on April 16 and 23, 1974].
“The Court’s factual determinations are based upon the testimony of the above named witnesses and the contents of the exhibits outlined above.
“No evidence was presented to the Commission in the proceeding regarding the current earnings of the company pertaining to its Kansas jurisdictional customers except that presented by Kansas-Nebraska’s witnesses.
“5. [Recites further procedural history],
“6. The evidence presented showed that as a result of conservation energy programs established by the Federal Government that sales by Kansas-Nebraska were reduced and probably would be reduced in the future and that the energy conservation program would have a detrimental effect upon Kansas-Nebraska’s sales and revenue.
“7. Kansas-Nebraska’s Rate Application was prepared and filed prior to the initiation of conservation measures by its customers and reflected without regard to any such conservation measures a claimed annual revenue deficiency of $2,539,009.00. Adjustment of that revenue deficiency to reflect the effect of energy conservation increases the anticipated claimed annual revenue deficiency of $2,851,034.00, resulting in current earnings by Kansas-Nebraska on its property in Kansas under existing rates of only 1.26%. The result is a claimed average daily loss of revenue to Kansas-Nebraska of $6,278.00. The above mentioned claimed return of 1.26% on Kansas-Nebraska’s property in Kansas is not a fair return and is not sufficient to enable Kansas-Nebraska to attract additional capital and will seriously hinder the company’s efforts to secure new and additional supplies of natural gas and to render efficient and sufficient service to its customers.
“8. The Court finds that the evidence presented by Kansas-Nebraska was sufficient to show a serious deterioration in Kansas-Nebraska’s sales and revenue and was sufficient to require the Corporation Commission to apply its discretionary authority to the question of whether or not an interim rate should be established. The Corporation Commission refused to consider an interim rate increase based upon the Commission’s legal conclusion that the proper standard to be applied in determining whether interim rate increase should be con sidered was that the decline in sales and revenue had to be sufficient to threaten the financial integrity of the company, threaten its ability to continue reasonably their efficient and sufficient service to the public and sufficient to threaten a reduction of service to customers resulting from a lack of sufficient capital or operating revenues. In addition, the Corporation Commission found that it would be necessary for the company to show it could not meet day to day operating expenses or meet the current pay roll requirements before an interim rate increase could be considered.
“conclusions of law
“1. [Recites venue and jurisdiction].
“2. The State Corporation Commission of the State of Kansas had jurisdiction to entertain Kansas-Nebraska’s Motion for, and to grant, interim rate relief on a showing by the Company of a significant current deficiency in the return on its Kansas property yielded by existing rates.
“3. The Court concludes that by virtue of the failure of the Corporation Commission to apply a proper standard for determining when interim rates should be considered and that by its use of the very severe standard which it adopted the Corporation Commission has in effect refused to apply its discretionary consideration to the question of whether or not interim rate increase should be considered. The Court finds that this action is arbitrary, capricious, unlawful and will result in the confiscation of property of Kansas-Nebraska without due process of law. The Court further finds that in view of the long delay in determining what action should be taken upon Kansas-Nebraska’s original application for rate increase that the failure to fairly consider the granting of an interim rate increase compounds the error of the Commission and makes its failure to fairly consider an interim rate increase more arbitrary, capricious, unreasonable and unlawful.
“4. This Court finds that the May 29, 1974, Order of the State Corporation Commission denying Kansas-Nebraska’s Application for Interim Rate Relief is unlawful and unreasonable in its entirety and said Order should be vacated and set aside, and the Order of this Court granting stay, which provided that in the event the Commission does not promulgate and issue a proper interim rate order within twenty days from August 9, 1974, that the interim rate order requested by Kansas-Nebraska go into effect, thereby permitting Kansas-Nebraska to collect new rates on all gas delivered on or after August 29, 1974, should continue in full force and effect.
“5. [Approves refunding bond filed by K-N].
“6. This decision of the Court and the findings made by the Court based upon the evidence presented at the hearings before the Commission on April 16 and 23, 1974, apply only to the question of whether or not the Corporation Commission should have considered in its discretion the granting of an interim rate and do not in any way concern the ultimate decision as to what the proper final rate should be.”
KCC appealed from the final order granting interim relief and upon its application this appeal has been consolidated with its appeal from the trial court’s August 9,1974, order. K-N filed a cross-appeal from that portion of the court’s October 15, 1974, order limiting application of the new rates to gas delivered on or after August 29, 1974, contending instead the new rates should have been applicable to billings for gas made on or after August 29, 1974.
All parties before this court agree on a preliminary matter — that despite the lack of specific statutory authority spelling it out, KCC has power to grant interim or temporary rates for public utilities regulated by it — they urge this court to so rule. We state no new principle in obliging. In its order KCC ruled it had this authority, and correctly so under our statutes and case law.
In Southwestern Bell Tel. Co. v. State Corporation Commission, 192 Kan. 39, 386 P. 2d 515, it was stated:
“The regulation of public utilities, including the fixing of rates, is a legislative function. The legislature has seen fit to delegate its authority, with broad powers, to the State Corporation Commission. (G. S. 1949, 66-101.) The only statutory standard controlling the Commission in fixing rates for public utilities is that the rates must be just and reasonable. . . .” (p. 46.)
K. S. A. 66-101 states that the corporation commission is given full power, authority and jurisdiction to supervise and control public utilities and “is empowered to do all things necessary and convenient for the exercise of such power, authority and jurisdiction”. K. S. A. 66-110 makes it the duty of the commission to investigate all rates and upon a finding after full hearing that such rates are unjust, unreasonable, unjustly discriminatory or unduly preferential, gives the commission power to fix such rate as shall be just and reasonable. K. S. A. 66-117 provides that to make any change in any rate a schedule showing the desired change must be filed with the commission and that no changes shall be made in any rate without the consent of the commission. K. S. A. 66-141 states:
“The provisions of this act [public utilities] and all grants of power, authority and jurisdiction herein made to the commissioners, shall be liberally construed, and all incidental powers necessary to carry into effect the provisions of this act are hereby expressly granted to and conferred upon the commissioners.”
Finally on this point, in Elliott v. Empire Natural Gas Co., 123 Kan. 558, 256 Pac. 114, it was contended the public service commission (predecessor of KCC) had no power to fix temporary public utility rates. In rejecting the contention this court quoted approvingly from Chicago Rys. Co. v. City of Chicago, 292 Ill. 190, 126 N. E. 585, as follows:
“ ‘To sustain the judgment of the circuit court, it is insisted that the commission had no authority to fix a temporary rate based upon increased operating expenses, and could only make a change upon a full hearing and examination which would demonstrate what a permanent rate ought to be. So far as we have been informed, every court which has considered that question has decided to the contrary.’ [Citations.] (p. 202.)” (p. 563.)
KCC contends upon appeal that the trial court erred in its findings Nos. 6, 7 and 8 in that it substituted its judgment for that of KCC contrary to the scope of judicial review prescribed in K. S. A. 66-118d; that it similarly erred in its conclusions of law 2 and 3, and further erred in rendering the judgment that it did after failing to find there was no substantial competent evidence to support KCC’s order. The thrust of its argument is that its denial order was based upon substantial competent evidence, mandating judicial approval. In opposition appellee K-N counters that the current rate of return was so inadequate as to amount to a confiscation of its property; that the trial court correctly applied the just and reasonable standard and correctly concluded K-N had sustained its burden of proof; and that KCC had set too stringent a standard for the grant of interim relief. We deal with the latter contention first.
KCC did state in its order that K-N had the burden of showing it was in such a position that if emergency relief was not forthcoming it would not be able reasonably to serve its customers, meet day by day operating expenses or meet its current payroll expenses. As already indicated the only statutory direction for rate determination is that the rates be reasonable and just. Although KCC must have some flexibility in determining what is reasonable and just under the particular circumstances, we think requiring a showing of virtual impending bankruptcy is indeed too stringent a standard to be fixed before interim rate relief can be granted. K-N does point out the delay necessarily involved in the rate-making process despite the best efforts of all concerned and the deleterious effect meanwhile of spiraling inflation. Rate-making agencies in other states have come up with various criteria to be used in granting interim relief, few of which have been the subject of judicial review. This latter situation may derive from the fact interim rates are generally placed into effect under a refunding obligation so that it is difficult for those on either side of the fence to demonstrate damage from the grant of interim rates.
Both sides here do cite a broad path taken by the Michigan public service commission in Re Michigan Consolidated Gas Co., 88 PUR 3d 168. There it was ruled that to warrant a temporary rate increase in the course of fixing final rates, there should be at least one of the following conditions in existence, besides the obvious requirement of a revenue deficiency: (1) Inability to arrange debt financing at reasonable rates without improved revenues, (2) distinctive and sudden decline in revenues, (3) evidence of unreasonable and harmful loss of revenues if partial rate relief is deferred, (4) reasonable grounds to believe that denial of such interim relief would cause irreparable harm to the utility. Although some of these criteria are specific in nature there is an overlapping of a sort which can scarcely be avoided in attempting to prescribe general guidelines. Necessarily, the determination as to whether a situation warrants the grant of interim rate relief to a public utility rests in the sound discretion of the corporation commission within the perimeter of reasonableness and justice to the utility and those served by it. We think that whether an interim rate should be granted pending final decision should ordinarily depend on whether irreparable harm would result to the utility by reason of a distinctive and sudden deficiency in revenue which is not subject to. recovery. The fact that a utility is unable to arrange necessary debt financing at reasonable rates without improved revenues manifestly could be a condition warranting the grant of interim rate relief. This condition is mentioned only by way of illustration and it is not meant that others of like import are to be excluded as grounds for such relief.
This conclusion with respect to the standard to be applied does not necessarily mean that mention of an improper standard by KCC in its order of denial of interim rate relief invalidates that order. As suggested by intervenor Central Kansas Power in its brief, mention by KCC of the standard in the particular fashion may have been simply in responsive denial of K-N’s portrayal in its motion that it was in dire financial straits and its claim to the proposed increased rates “to protect its financial integrity” and to permit it “to render efficient and sufficient service. . . .” In its denial order KCC summarized the evidence pro and con and made detailed evidentiary findings of fact. It does not appear that use of the standard we have just disapproved evidenced bias or prejudice by KCC in reaching those findings so as to taint their validity. Those findings clearly reflected that K-N had not made sufficient showing that its current rates were no longer just and reasonable. The district court did not set those findings aside for want of evidence to support diem. The fact remains, KCC based its denial order on far more than the failure to meet the challenged standard respecting the burden of proof.
K. S. A. 66-107 provides:
“Every . . . public utility governed by the provisions of this act shall be required ... to establish just and reasonable rates . . . and every unjust or unreasonable discriminatory or unduly preferential . . . rate . . . demanded, exacted or received is prohibited and hereby declared to be unlawful and void. . . .”
K. S. A. 66-115 provides that all rates fixed by the commission shall be prima fade reasonable until changed or modified by the commission or pursuant to court proceedings. Thus K-N, as applicant, had the burden of making a prima fade showing that its current rates, due to existing circumstances, were no longer just and reasonable and that interim rate relief was necessary. Acceptable methods of accounting procedures are to be used in determining and allocating costs and rate bases. See Southwestern Bell Tel. Co. v. State Corporation Commission, supra, Syl. ¶ 3. The fact that rate increases cannot be made retroactive and failure to grant interim increases may result in an unrecoverable loss of revenue during the interim period does not relieve an applicant from this burden. We do not mean to say that a full-blown hearing on every possible issue is necessary before interim rate relief can be granted but at least a showing of need, acceptable on its face, should be made. The difficulty here lies largely in the fact that at the same time K-N applied for interim relief on the basis of projected income calculated largely on tests of a limited nature it also chose to use a new and questionable method of allocation of rate structure and expense.
In its denial order KCC made express findings that K-N had failed for a number of stated reasons to support the contentions its current rate of return was inadequate and further that its evidence was speculative and conjectural in several areas. These findings upon which its denial order was essentially based were supported by substantial competent evidence. KCC found that part of K-N’s drop in revenue was brought about by the latter’s policy decision to increase substantially interruptibles to its industrial customers— in Kansas these have been increased 30 to 40% and at the same time substantial gas reserves have been maintained. The principal reason for the requested interim relief was residential customer conservation measures evidenced during a three-day peak period in three Kansas towns; this brief period was immediately following presidential, gubernatorial and other appeals for gas conservation which were given wide publicity. The evidence showed that in making the tests certain physical factors which might affect gas usage were not taken into account; no evidence was shown as to the effect, if any, on gas usage during the rest of the season. In projecting its revenues K-N did not take into consideration certain concomitant reduction of expenses nor certain increased revenues such as from sales of extracted products. More importantly, in presenting its case K-N had chosen to use a new method of allocation in determining the rate base applicable to Kansas, as already mentioned. The propriety of the use of this method was not supported or justified in the record — in fact it was seriously challenged. Several substantial items of expenditure and rate base adjustments under it were questioned and answers were not supplied. For example, no information as to terms, time of payment, use of payment, connection with Kansas, etc., was shown for an addition to K-N’s net utility plant of $10,000,060 for an “advance payment” to a wholly-owned subsidiary, supposed to* be used over a three year period in drilling wells in Montana near the Canadian border, many miles beyond K-N’s transmission system. This was one of several controversial items used in determining and allocating actual investment which were left largely unexplained.
The trial court in findings Nos. 6, 7 and 8 did make certain factual findings which were at odds with those made by KCC. In findings Nos. 6 and 7 it laid the blame for decreased revenues at the hands of consumer conservation measures. No mention was made of the integrity of the three-day test period, the speculative nature of the projection for the full year based thereon, the questioned rate base and cost of service adjustments, the loss of revenue due to factors other than customer conservation, and finally, the new unsubstantiated method of allocation. Clearly it would appear the trial court reweighed the evidence in the record and came up with a different set of facts from those determined by KCC as set out in its evidentiary findings 5 through 9. In doing so and in its conclusions as well the court erred.
K. S. A. 66-118d. limits the review of a district court of an order of the corporation commission to determining whether the order is lawful and reasonable. An order is lawful if the prescribed statutory and procedural rules are followed in making the order (Southern Kansas Stage Lines Co. v. Public Service Comm., 135 Kan. 657, 11 P. 2d 985). An order of the corporation commission based upon substantial competent evidence will generally be considered reason able. On review of an order of the state corporation commission, the district court may not vacate or set aside such order merely on the ground that such court would have arrived at a different conclusion had it been the trier of facts. It is only when the commission s determination is so wide of the mark as to be outside the realm of fair debate that the court may nullify it (Graves Truck Line, Inc., v. State Corporation Commission, 215 Kan. 565, Syl. ¶ 5, 527 P. 2d 1065).
When the record before KCC is viewed in the light of the foregoing standards of judicial review the trial court’s judgments must be set aside and KCC’s order of May 29, 1974, reinstated as a lawful and reasonable order.
Once it is determined K-N failed to make the requisite showing for a need for interim rate relief, we do not reach its contention of confiscation based as it is on K-N’s proposed adjustments and new rate structure nor is there anything left in its cross-appeal to be determined.
The judgments are reversed and the cause remanded for further proceedings in accord with the views herein expressed to include direction of refund by appellee of the interim rate increase received by it.
APPROVED BY THE COURT.
Fromme, J., not participating. | [
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Per Curiam:
This is an original proceeding in discipline. The respondent, Richard L. Hilton, a member of the bar has been practicing in Wichita, Kansas, since 1963. This proceeding is the result of two complaints filed against respondent.
The first complaint was lodged by Tommie Gene Padgett. It was predicated on a conflict of interest charge arising from respondent’s continued representation of Padgett in a criminal case after a conflict appeared between the position of Padgett and a codefendant, Gerald Ray. Padgett filed a complaint with the disciplinary administrator charging that respondent continued to represent him, as well as Ray, after it was discovered that the state would deal with Ray, but not with Padgett, on plea negotiations. Padgett also claimed that respondent failed to return to him or his subsequently retained attorney, Russell Shultz, papers which he claims were pertinent to his defense.
The second complaint against respondent stems from a charge made by Mary V. Jenkins concerning a fee arrangement made with respondent in connection with respondent’s representation of Claude Jenkins, the complainant’s son. Respondent was charged with the wrongful appropriation of $1,000.00 advanced by Mrs. Jenkins, which she claims was to be used for the posting of a bond. Respondent was also accused of entering into an agreement which was alleged to amount to the representation of the defendant in a criminal action for a contingent fee.
A hearing was held on the complaints by a three-member panel of the State Board of Law Examiners (hereafter referred to as the Board). The panel filed its report containing its findings and a recommendation that the respondent should be disciplined by public censure. The Board, after considering the report of the hearing panel, adopted the same and recommended to this court that the respondent should be disciplined by public censure. The respondent filed his exceptions to the report of the Board and the matter is now before this court for determination.
A voluminous transcript of the proceedings before the hearing panel is in the record before us; however, a brief summarization of the facts developed is sufficient for a determination of the matter.
Turning to the first or Padgett complaint, respondent became involved in the case when he was approached by John Pichinson, a Texas attorney practicing in Corpus Christi, who asked respondent to act as local counsel. Padgett and Ray had been arrested and charged with attempted arson and other offenses. Padgett and Ray were arrested in a building which had been “staked out” by police officers under the direction of the attorney general. At the time of their arrest, on March 15, 1973, Padgett and Ray were in the possession of twenty-five gallons of inflammable materials and a pass key to the building. Identical charges were filed against Padgett and Ray, and apparently they were in identical situations except that Ray had a previous criminal record involving arson in 1971. Padgett and Ray had become acquainted with Pichinson in Texas several months before their arrest in Wichita.
The evidence discloses that respondent accepted employment in the case with the understanding that he would act as local counsel and that Pichinson would be the lead counsel for defendants at trial. A preliminary hearing was held on May 17, 1973. Pichinson and respondent both appeared at the first day of the preliminary hearing. Pichinson left the evening of the first day and respondent appeared alone as counsel for Padgett and Ray on the second day. During the second day of the hearing the charges were dismissed for technical reasons and were refiled. A second preliminary hearing commenced on July 3, 1973. Respondent appeared without Pichinson at this hearing and represented both Padgett and Ray. Padgett and Ray were bound over after the second preliminary hearing and were directed to appear for arraignment before the district court on July 18,1973.
After the second preliminary hearing Attorney General Miller requested respondent to talk with him and one of his deputies concerning the possibility of working out a plea for Padgett and Ray. There is testimony indicating that the state desired Ray to give testimony involving a Mr. Daugherty whom state officers thought was the central figure in an arson ring. The evidence discloses that respondent represented both Padgett and Ray and advised them during the discussions involving negotiations. Respondent attempted to get immunity for Ray. The attorney general would not give immunity, but only offered a suspended sentence and probation for Ray. The attorney general refused to-deal with Padgett. Respondent testified that at this point in the proceedings he declared there was a conflict of interest and that Padgett should get another attorney. The precise date of respondent’s withdrawal, as Padgett’s counsel, is not shown. Padgett retained Russell Shultz, another Wichita attorney, to represent him. Respondent testified that he turned over his files to Mr. Shultz and authorized him to pick out anything pertaining to Padgett’s case. Padgett, on the other hand, flatly denied respondent’s testimony on this point. Padgett testified that respondent did not cooperate with Shultz and further that respondent even claimed that he had no material pertaining to Padgett’s case.
Padgett and Ray went to trial in November 1973. At the close of the voir dire examination Ray changed his plea to guilty— respondent continued to represent Ray throughout the proceedings. Padgett was represented by Mr. Shultz and was acquitted of all charges filed against him. Correspondence offered in evidence before the hearing panel indicates a dispute between Padgett and respondent concerning an attorney fee, but it has no bearing upon the issue herein.
The thrust of the panel’s findings with respect to Padgett’s complaint is that respondent, even though he had withdrawn as an attorney for Padgett, continued to represent Ray in a criminal trial at which Padgett was a codefendant; the respondent continued plea negotiations for Ray, but did not communicate this fact to Padgett or his newly appointed attorney, Mr. Shultz; and that respondent during the plea negotiations agreed that Ray would plead guilty and would give state’s evidence against the remaining codefendants.
The hearing panel concluded that, from the facts within his knowledge at the time, respondent should have realized that matters to the advantage of one client might become disadvantageous to the other; thus, impairing his independent professional judgment toward the case of one client or the other in violation of No. 5 of the Canons of Professional Ethics adopted by the American Bar Association (198 Kan. XVII, XVIII [now Supreme Court Rule No. 501]), and more specifically Disciplinary Rule DR 5-105 (B) and (C), of the Code of Professional Responsibility. (214 Kan. lxxxvi.)
The gist of respondent’s exceptions to the Board’s decision on the Padgett complaint is that the evidence does not justify the finding of a violation of DR 5-105 (B) and (C). Respondent further asserts that the facts show there was no impairment of professional judgment towards either client.
Canon 5 of the Code of Professional Responsibility reads as follows:
“A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client.”
Disciplinary Rule DR 5-105 (A), (B) and (C) reads:
"(A) A lawyer shall decline proffered employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by the acceptance of the proffered employment, except to the extent permitted under DR 5-105 (C).
“(B) A lawyer shall not continue multiple employment if the exercise of his independent professional judgment in behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under DR 5-105 (C).
“(C) In the situations covered by DR 5-105 (A) and (B), a lawyer may represent multiple clients if it is obvious that he can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of his independent professional judgment on behalf of each.”
It is respondent’s position that he did withdraw as Padgett’s counsel, as soon as a conflict between Ray and Padgett became apparent and that, in any event, Padgett’s case was not prejudiced since he was acquitted. Respondent further claims that even though Ray testified as a state’s witness, his testimony did not harm Padgett, but in fact strengthened his defense of entrapment. Respondent says he never disclosed anything that was harmful to Padgett.
There are many inconsistencies in the testimony of Padgett and respondent before the hearing panel. We are, however, able to ascertain from the record that soon after the second preliminary hearing, at which respondent represented both Ray and Padgett, the attorney general approached respondent concerning immunity or a negotiated plea for Ray. Respondent asked immunity for both defendants, which was declined by the attorney general. However, the attorney general continued to seek an arrangement with Ray in further discussions with respondent. At this point, early in July 1974, respondent knew there was a strong likelihood that Ray would, either be granted immunity or enter a plea of guilty after negotiations with the state. While Padgett, on the other hand, had declared that he would not plead guilty under any circumstances. Respondent continued to represent both parties through arraignment on July 18, 1973.
Within a few weeks after arraignment, Padgett retained Russell Shultz, as his attorney. Respondent continued to participate in plea negotiations for Ray, but did not inform Shultz or Padgett concerning his activities in this regard.
Respondent knew — or should have known — that a serious conflict of interest would arise at the first indication that Ray might become a state’s witness as a result of plea negotiations or the granting of immunity. Respondent should have withdrawn immediately as Padgett’s counsel; and if he had received privileged communication from Padgett that might have been used to Ray’s advantage and to Padgett’s disadvantage, he should have withdrawn as counsel for both parties.
In undertaking to represent codefendants in a criminal case counsel should always be aware of conflicts which may and frequently do arise. The most serious conflict that might arise is that which occurred in this case — i. e., one defendant takes a plea and becomes a state’s witness while the other goes on to trial on a plea of not guilty to the same charge.
While counsel may, under the circumstances prescribed in DR 5-105 (C), ethically represent multiple defendants in a criminal case, where all defendants stand in the same position and join in the same theory of defense, he must, nevertheless, recognize the appearance of any conflict and act accordingly. The unmistakable intent of DR 5-105 (C) is exemplified in “Ethical Considerations” [EC] 5-15 (ARA Standards, Code of Professional Responsibility). It reads in pertinent part:
“If a lawyer is requested to undertake or to continue representation of multiple clients having potentially differing interests, he must weigh carefully the possibility that his judgment may be impaired or his loyalty divided if he accepts or continues the employment. He should resolve all doubts against the propriety of the representation. . . .” (p. 60.)
This court noted the potential hazards involved in multiple representation in Stump v. Flint, 195 Kan. 2, 402 P. 2d 794, wherein we said:
“. . . [W]e think it imperative, if the legal profession is to attain the public respect to which it legitimately aspires, that attorneys act with the greatest circumspection in the representation of multiple clients where there exists a possibility that their interests may conflict or be at cross purposes.” (p. H.)
In the instant case both Padgett and Ray were caught “red-handed” in possession of arson materials in a building which had been “staked out” under the supervision of the attorney general. Under such circumstances it was apparent on respondent’s initial entrance into the case that entrapment was the only available defense. Since Ray had a previous arson record (of which respondent was aware), he was in a different position from that of Padgett with respect to the defense of entrapment. Under such circumstances respondent could not ethically accept dual representation. Actual prejudice to Padgett is immaterial except as to its bearing on the degree of discipline. We believe public censure, as recommended by the Board, to be an appropriate measure of discipline under the circumstances.
The second complaint concerns respondent’s representation of Claude Jenkins, eighteen years of age, who was charged with burglary and theft. Claude’s mother, Mrs. Mary V. Jenkins, employed respondent to represent Claude and paid him $750.00 on a general retainer of $1,500.00. The balance was to be paid before final disposition of the case.
On the date set for Claude’s preliminary hearing, respondent and Claude agreed that the hearing should be waived and a plea of guilty entered. From this point on respondent’s principal efforts in Claude’s behalf were directed toward securing probation or a suspended sentence for Claude.
Respondent asked Mrs. Jenkins to come to his office to discuss her son’s case — at which time, at his request, Mrs. Jenkins paid him the additional $750.00 by check marked “payment in full.” In the meantime, Claude’s case had been set down for sentencing in district court. Respondent asked Mrs. Jenkins for an additional $1,000.00, which was to be used to offer to the court as a “probation bond.” Mrs. Jenkins then gave respondent a check in the amount of $1,000.00, marked “cash bond to court.” Respondent testified that he deposited the two checks in the Southwest National Bank where he maintained two accounts; one entitled “personal” and the other “business.” He testified that he also had an account entitled “clients account” in the Union National Bank where he deposited some collections to be turned over to clients.
On May 24, 1972, Claude entered pleas of guilty in district court, and sentencing was set for June 22, 1972, when sentence was im posed. The judge rejected the $1,000.00 probation bond idea and took Claude’s application for probation under advisement. Immediately following the sentencing hearing, respondent had a conference at the counsel table with Claude and Mrs. Jenkins. The testimony concerning the counsel table conference and subsequent events is in conflict. The hearing panel’s findings of what took place is summarized as follows:
“At the counsel table respondent said an additional $1,000.00 was needed and suggested that the payment of $1,000.00 ‘cash bond to court’ could be used for that purpose; that complainant and Claude agreed this money could be used as fee if respondent ‘got Claude out.’ The next day, June 23, 1972, the judge granted probation. The respondent transferred the money to apply on fee in compliance with the agreement. Complainant has no remembrance of the counsel table conference. Claude testified he would agree to anything ‘just to get out’ and he promised he would pay back his mother. Respondent presented several witnesses to support his testimony as to the counsel table conference agreement. During four or five months following the probation of June 23, complainant made many demands of respondent to refund the $1,000.00 ‘cash for bond to court’ money. She stated that more than once he said he would return it. Respondent denied this. In November, 1972, Claude was picked up for parole violation. He called respondent who agreed to represent him without any more fee. The bondsman’s fee for bond on this offense was $250.00 Respondent gave his check for that amount drawn on his Union National Bank account payable to Claude and complainant. Complainant refused to endorse it, saying she was entitled to a refund of the entire $1,000.00. Complainant sued respondent for return of the $1,000.00 alleging it to be unearned fee. The suit was settled without trial.”
The panel concluded that respondent’s failure to deposit the $1,000.00 “cash bond to court” check in his client’s account was a violation of DR 9-102 (A) (214 Kan. xcii), and further that the so-called new fee arrangement for the $1,000.00 to be used as a fee if probation was effected was a contingent fee arrangement in violation of DR 2-106 (C) (214 Kan. lxxxii).
Disciplinary Rule DR 2-106 (C) reads:
“A lawyer shall not enter into an agreement for, charge, or collect a contingent fee for representing a defendant in a criminal case.”
Disciplinary Rule DR 9-102 (A) reads:
“(A) All funds of clients paid to a lawyer or law firm, other than advances for costs and expenses, shall be deposited in one or more identifiable bank accounts maintained in the state in which the law office is situated and no funds belonging to the lawyer or law firm shall be deposited therein except as follows:
“(1) Funds reasonably sufficient to pay bank charges may be deposited therein.
“(2) Funds belonging in part to a client and in part presently or potentially to the lawyer or law firm must be deposited therein, but the portion belonging to the lawyer or law firm may be withdrawn when due unless the right of the lawyer or law firm to receive it is disputed by the client, in which event the disputed portion shall not be withdrawn until the dispute is finally resolved.”
Concerning the violation of DR 9-102 (A), respondent maintains that the $1,000.00 bond check was a “cost or expense” of litigation and was, therefore, within the exception of the rule. We cannot agree. The $1,000.00 was not advanced for costs or expenses of litigation, but for the specific purpose of providing a cash bond to be offered to the court in support of Claude’s application for probation. If the proposition was rejected by the court the $1,000.00 was to be returned to Mrs. Jenkins. At the time the $1,000.00 was tendered it was funds belonging to Mrs. Jenkins and remained as such unless accepted as a cash bond by the court. It should have been initially deposited in the client’s account under the mandate of DR 9-102 (A). Respondent points out that at all times pertinent his business account never fell below a balance of $4,600.00. His argument at best fails to take into consideration the rule against commingling of funds. (See, State v. Barrett, 207 Kan. 178, 483 P. 2d 1106, and ABA Standards, “Ethical Considerations,” [EC] 9-5.)
Concerning the contingent fee accusation, respondent says there is no evidence to support the panel’s finding that there was an agreement that the $1,000.00 would be used as a fee if respondent “got Claude out.” We are inclined to agree with respondent on this point. However, respondent’s demand for an additional fee of $1,000.00 at the time and under the circumstances existing cannot be condoned. Respondent made demand for the additional fee at the conclusion of the first day’s hearing on probation. The court still had the matter under advisement and the issue whether probation would be granted was not to be decided until the following day. Claude and his mother were faced with going to court the next day without a lawyer and, thus, apparently agreed to the additional fee, although Mrs. Jenkins denied any such agreement. The demand, at this point in the proceedings, for an additional fee that was not contemplated in the retaining agreement violated the spirit, if not the letter of DR 2-106 (C).
Finally, respondent contends public censure is excessive and unjust punishment under the facts presented in this case. While the record fails to show that his clients suffered actual prejudice, nevertheless, respondent’s conduct fails to measure up to the standards of the applicable Disciplinary Rules. In evaluating the conduct of an attorney, it must be kept in mind that the Disciplinary Rules state the minimum level of conduct below which no lawyer can fall without being subject to disciplinary action. (State v. Alvey, 215 Kan. 460, 524 P. 2d 747.) We take note that respondent was previously before this court on another disciplinary matter. (In re Hilton, 213 Kan. 27, 521 P. 2d 600.) Under the circumstances, we believe the Board’s recommendation of public censure is appropriate.
It is therefore by the court considered, ordered and adjudged that Richard L. Hilton be and is hereby censured by this court. Costs of this proceeding are taxed to respondent.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a criminal action by Julian Bey (defendant-appellant) from a conviction of first degree murder (K. S. A. 21-3401) while perpetrating the crime of aggravated robbery (K. S. A. 21-3427).
The questions raised on appeal pertain to: (1) the use of transcript testimony of a prosecution witness who testified at the preliminary hearing but was unavailable to testify- in person at the trial; (2) the lineup identification procedures; and (3) the sufficiency of the evidence to support the appellant’s conviction under the felony-murder rule.
Testimony received at Bey’s trial disclosed that on September 11, 1973, John Lomax, Wilbert Etier and appellant drove to the offices of the Prolerized Steel Corporation in Kansas City, Kansas, to commit a robbery. Lomax and Bey entered the office building while Etier waited behind the wheel of the get-away car. As Bey and Lomax entered the office a young man, Roy Lake, ran from the building and shouted that a robbery was taking place. Etier emerged from the driver’s side of the waiting automobile and fired his rifle at Lake, resulting in his death.
The appellant was charged and tried for the robbery and the killing. Two men working in the Prolerized Steel office at the time of the robbery, Mr. Richard Glasscock and Mr. Rudy Roth, identified the appellant as one of the robbers. Lomax admitted participating in the robbery and testified for the prosecution. Etier was killed by unknown persons prior to the trial of Bey. According ao Lomax’s testimony, Lomax, Julian Bey and Wilbert Etier drove in a blue Pontiac to the Prolerized Steel plant on the morning of September 11, 1973. After arriving Lomax entered the business office and requested a job application but was told they were not hiring. Lomax testified he started to leave the office when the appellant entered the office. The appellant was armed with a shotgun; Lomax had a .32 chrome revolver; and Etier, who stayed with the car, had a rifle and a pistol. Lomax further stated as die appellant was about to enter the office, there was a young man standing just inside the door. When the appellant entered the young man ran out the door. The appellant told Lomax to “stop him,” but Lomax just let him go. Once inside Lomax and the appellant ordered the men in the office to lie down and then took money from a drawer and the safe, a total of approximately $500.
When the robbery was completed Lomax and the appellant returned to the car and departed with Etier driving. According to Lomax, as the three were riding in the car, Etier asked why Lomax and the appellant had “let the dude run?”, and Etier then stated that he “had to do away with him.” Lomax testified that he neither saw nor heard the shooting.
Additional evidence before the juiy included a reading of the transcript of one Bobby Arnold’s testimony from the preliminary hearing. Arnold was an independent truck driver who was present outside Prolerized Steel’s business office at the time of the robbery. He testified that he saw a blue Pontiac parked by the office and observed a white boy walking toward the car when two black men got out of the Pontiac and walked toward the office with the boy. He next saw the boy break away from the two men and start running in Arnold’s direction shouting “Holdup run”. The two men continued on into the office building. Arnold then saw another black person get out from the driver’s side of the Pontiac and fire several shots at the running boy.
Predicated upon the evidence presented the jury found Bey guilty of first degree murder under the felony-murder rule, and he was sentenced to life imprisonment. Bey moved for a new trial. That motion was overruled by the trial court and Bey has duly perfected this appeal.
The appellant contends the trial court erred in refusing to exclude the reading of the preliminary hearing testimony of Bobby Arnold because Arnold was not properly served with a subpoena for appearance at the trial, and that a diligent effort was not made to secure his appearance.
The provisions of K. S. A. 60-460 (c) (2) permit testimony of a witness given at a preliminary examination to be used at the trial only if it is shown that the witness is unavailable to testify personally. K. S. A. 60-459 (g) provides in part that:
“ ‘Unavailable as a witness’ includes situations where the witness is . . . (5) absent from the place of hearing because the proponent of his statement does not know and with diligence has been unable to ascertain his whereabouts.”
This court has considered the admissibility of the testimony of an absent witness given at a preliminary hearing, or at a former trial, on many occasions. In State v. Washington, 206 Kan. 336, 479 P. 2d 833, the rule is stated as follows:
“Under the federal constitutional standard as applied to the states, the test of unavailability, for the purposes of the exception to the confrontation requirement, is whether the prosecutorial authorities have made a ‘good faith effort’ to obtain the witness’s presence at trial (Barber v. Page, 390 U. S. 719, 20 L. Ed. 2d 255, 88 S. Ct. 1318). Consistent with the federal mandate is our long-standing rule that before the state may use the testimony of an absent witness given at a former trial or preliminary hearing, it must be made to appear the witness cannot, by the exercise of reasonable diligence, be produced at trial (State v. Lesco, 194 Kan. 555, 400 P. 2d 695; State v. Guthrie, 192 Kan. 659, 391 P. 2d 95; State v. Brown, 181 Kan. 375, 312 P. 2d 832; State v. Bonskowski, 180 Kan. 726, 308 P. 2d 168; State v. Streeter, 173 Kan. 240, 245 P. 2d 1177. Also, see K. S. A. 60-459 [g]).” (p.338.)
(See also State v, Kirk, 211 Kan. 165, 505 P. 2d 619; State v. Calvert, 211 Kan. 174, 505 P. 2d 1110; State v. Ford, 210 Kan. 491, 502 P. 2d 786.)
This court has not attempted to define the term “reasonable diligence” with the preciseness that other legal phrases have been characterized. Analysis of our previous decisions establishes that each case turns on its own facts and circumstances to determine the availability of a witness. (State v. Kirk, supra.)
To support its motion requesting the trial court to authorize the reading of the transcribed testimony of Arnold at the preliminary hearing to the jury, the state called Joseph A. Horvat, an investigator in the Wyandotte County district attorney’s office, to testify concerning efforts he made to contact Arnold for the trial.
According to Horvat following the preliminary hearing, he and the district attorney talked with Arnold to verify the fact that he would be available to testify at the trial. Arnold was cooperative, and gave his street address in Marshall, Missouri, and his phone number.
In preparing for the trial the investigator issued a subpoena to Arnold at the given address on January 8 (trial commenced on January 14). After learning the subpoena was not served, the in vestígator attempted to telephone Arnold at the number .given but the line had been disconnected. An officer of the Marshall, Missouri, police department was then contacted and asked for assistance in locating Arnold. The Marshall police officer learned that Arnold no longer lived in Marshall but had moved to Fair Play, Missouri, which is located in Polk County.
Through directory assistance the investigator obtained a phone number for Arnold, but he was unable to get an answer when he called, so the aid of the Polk County sheriffs office was solicited. A deputy from the Polk County sheriffs office drove to Arnold’s residence on several occasions over a five day period. He left a note on one occasion directing Arnold to contact the Wyandotte County district attorney or the sheriffs office, and the note apparently was picked up but Arnold did not contact any of the authorities. The Polk County deputy also made numerous telephone calls to Arnold’s house but they were never answered.
The investigator also sought assistance from two friends of Arnold’s who worked at Prolerized Steel, Arnold’s brother and nephew, and others.
The investigator also stated a subpoena was not issued to the sheriff of Polk County to be served upon Arnold.
The appellant objected to the reading of the transcript into evidence on the grounds that the legal requirements for showing unavailability of a witness had not be fulfilled, no subpoena having been issued to Mr. Arnold at his Polk County address.
The appellant was represented at the preliminary hearing by counsel and Arnold was subjected to some cross-examination at that time.
In sustaining the state’s motion, the trial court said:
“Well, I believe I would have to find that the County Attorney has made a diligent effort to locate this witness. I think it would probably have been a useless gesture to issue a subpoena to another county to be served when the sheriff down there had been unable to locate or contact the man at all.”
In our opinion the trial court was correct in concluding that the issuance of a subpoena to Arnold’s Polk County address would have been a useless act in view of the efforts made by the Polk County sheriff’s office. Though the state might well have allowed itself more time in which to serve Arnold, Arnold had given the impression of being a willing and cooperative witness and there was no reason to anticipate difficulty in serving him. We think the evidence was sufficient to establish that reasonable diligence had been used by the state in seeking to ascertain the whereabouts of Arnold and to procure his attendance at the trial.
The appellant next argues that his rights to due process were violated by pretrial identification procedures with respect to Rudy Roth, who was employed and present at the office of Prolerized Steel at the time of the robbery.
Four days subsequent to the robbery a lineup comprised of four suspects, including the appellant, was conducted by the Kansas City Police Department and witnessed by Mr. Roth. Roth testified that at this lineup the suspects were requested to speak and make some movement. After viewing the lineup, Roth was unable to positively identify any of the suspects as one of the robbers, though he testified at the trial that he thought he could identify the appellant.
Five days later a second lineup was conducted and Roth was present with Mr. Glasscock, who had been present in the office at the time of the robbery, but had not been present at the first lineup. On this occasion, Roth was able to positively identify the appellant as one of the holdup men, as was Glasscock.
Roth could not account for the fact he was able to identify the appellant during the second lineup but was unable to do so on the first occasion. Roth could not recall whether or not any individuals appearing in the second lineup, other than the appellant, had also appeared in the first, though to the best of his knowledge the appellant was the only individual to appear in both. He testified that when he viewed the second lineup he remembered having seen the appellant in the previous lineup. It should be noted the appellant was represented by counsel at both lineups in accordance with United States v. Wade, 388 U. S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926, and Gilbert v. California, 388 U. S. 263, 18 L. Ed. 2d 1178, 87 S. Ct. 1951.
Evidence taken by the trial court on the appellant’s motion to suppress the lineup testimony of Roth was not in the presence of the jury. The trial court ruled Roth’s testimony concerning the second lineup and his in-court identification of the appellant should be presented to the jury.
The appellant argues the appearance of a single familiar face at the second lineup is a violation of constitutionally fair line up standards as enunoiated in the cases of Stovall v. Denno, 388 U. S. 293, 18 L. Ed. 2d 1199, 87 S. Ct. 1967 (1967); Foster v. California, 394 U. S. 440, 22 L. Ed. 2d 402, 89 S. Ct. 1127 (1969); and Neil v. Biggers, 409 U. S. 188, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972).
In Stovall, supra, it was recognized that, judged by the “totality of the circumstances,” the conduct of identification procedures may be “so unnecessarily suggestive and conducive to irreparable mistaken identification” as to be a denial of due process of law. In Biggers, supra the central question before 'the court was whether under the “totality of the circumstances” the identification was reliable even though the confrontation procedure was suggestive, and it was stated that factors to be considered in evaluating the likelihood of misidentification include:
“. . . [T]he opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. . . .” (pp. 199, 200.)
In Stovall and Biggers the court held, upon facts inapposite to those in the case at bar, that due process had not been violated.
In Foster the defendant was placed in a lineup in which he stood out from the other men. There was a contrast by reason of his height and by the fact that he was wearing a jacket similar to that worn by 'the robber. When this did not lead to an identification the police permitted a one-to-one confrontation between the defendant and the sole witness to the crime. The witness’ identification remained tentative and a few days later a second lineup was arranged in which defendant was the only member who had appeared in the first lineup. This finally produced a positive identification. The court, in refusing to hold that the lineup procedure constituted harmless error, stated:
“The suggestive elements in this identification procedure made it all but inevitable that David [the witness] would identify petitioner whether or not he was in fact ‘the man.’ In effect, the police repeatedly said to the witness, ‘This is the man.’ See Biggers v. Tennessee, 390 U. S. 404; 407 (dissenting opinion). This procedure so undermined the reliability of the eyewitness identification as to violate due process.” (p. 443.)
The appellant argues that although Roth had ample opportunity to view the two robbers during the crime, he was completely unable to make an identification at the original lineup, and he admitted that nothing in particular caused him to make the identification at the second lineup, all of which suggests that this identification was merely the identification of a familial- face and not the identification of an assailant at the scene of the crime. The appellant asserts that under a fair reading of the totality of the circumstances rule, the circumstances surrounding his identification were suggestive and improper to the extent that his right to due process was violated.
The state’s position is 'that the lineup procedures with respect to witness Roth were not violative of the appellant’s due process rights within the cases discussed above, and further that Roth’s in-court identification was capable of supplying the requisite identification regardless of any alleged deficiency in pretrial confrontations.
On the basis of the record before us we are unable to conclude that the appellant’s constitutional rights were violated. The facts in the instant case do not go to the extreme proportions as they did in Foster, supra; consequently it is not controlling authority that the procedures utilized in this case were impermissibly suggestive.
In the case at bar, Roth’s testimony on cross-examination concerning whether or not anyone other than the appellant appeared in both lineups went as follows:
“Q. Can you recall if anybody other than the defendant was in both the first and the second lineups you viewed?
“A. No.
“Q. He was the only one in both those lineups, wasn’t he?
“A. Well, as far as I could tell. I can’t remember, you know. You mean the same party in both lineups?
“Q. I am saying the same party, that is right.
“A. I really don’t know whether there was.
“Q. You don’t recall?
“A. I can’t recall it, no, whether there was or not.
“Q. To your knowledge, then, the defendant was the only individual who was in both the first and second lineups?
“A. As best I can recall now, yes.
“Q. And when you viewed the second lineup, did you recall having seen the defendant in the first lineup?
“A. Yes.
“Q. And did you recognize anybody else in the second lineup as having been in the first lineup?
“A. Not that I can recall now.”
It is obvious from the foregoing testimony that the fact that the appellant appeared in both lineups did not make a significant impression on Roth and he was unsure as to whether other members of the original lineup also appeared in the second one.
We do not agree with the appellant’s contention that the fact he may have been the only person appearing in both lineups ipso facto invalidates Roth’s identification at the second lineup. Indeed the United States Supreme Court decisions cited by the appellant and discussed above require us to review the “totality of the circumstances,” and in so doing we note the appellant was represented by counsel at both lineups; the exhibits before the trial court included a photograph of the second lineup and the height and weight of each suspect was listed on the lineup waiver; there is no contention by the appellant that he stood out from the other three men in the lineup because of any physical contrast; Roth had an ample opportunity to view the robbers at'the time of the crime; and both lineups were conducted within nine days of the holdup. While it may be preferable for the authorities to use the same participants in each lineup, that would frequently be impossible due to the fact that the participants other than the primary suspect are usually persons who happen to be in custody at the time of the lineup and they would not be available for any length of time. After personally hearing the testimony the trial court concluded the 'procedures utilized were not unduly suggestive, and we are not persuaded otherwise.
It should also be noted that in the present case Roth was not the sole witness to the robbery. The appellant was identified by Glass-cock, another Prolerized Steel employee, and his accomplice, Lomax.
In addition, it must be pointed out that Roth identified the appellant during the trial as one of the men who* robbed the office. This court has held that in-court identifications may be capable of standing on their own even though preceded by deficient pretrial confrontations. (State v. Kelly, 210 Kan. 192, 499 P. 2d 1040; State v. Calvert, 211 Kan. 174, 505 P. 2d 1110; and State v. Lora, 213 Kan. 184, 515 P. 2d 1086.) Under these circumstances, Roth’s in-court identification would be sufficient regardless of any alleged deficiency in pretrial confrontations, though Roth’s failure to identify the appellant at the. first confrontation was properly a basis for cross-examination and jury argument.
The appellant’s final point is that the trial court erred in refusing to grant his motion for judgment of acquittal because the evidence was legally insufficient to uphold a conviction under the felony-murder rule (K. S. A. 21-3401).
In a murder committed during the commission of a felony the felonious conduct itself is held tantamount to the elements of deliberation and premeditation which are otherwise required for first degree murder. Therefore, to support a conviction for felony murder all that is required is to prove that a felony was being committed which was inherently dangerous to human life, and that the homicide was a direct result of the commission of that felony. (State v. Reed, 214 Kan. 562, 520 P. 2d 1314 and the cases cited therein.)
The appellant argues the felonious conduct must have a factual connection with the conduct which caused the death, and that in this case the state’s evidence failed to bring forth a sufficient link between actions taken by the parties inside the office at Prolerized Steel and the actions taken by Etier outside the office which resulted in Roy Lake’s death. It is argued that other than the testimony of Lomax there is no> clear and convincing proof that the appellant was involved in the perpetration of a felony which had any factual link to Lake’s death.
This court has long recognized that uncorroborated testimony of an accomplice is sufficient to- sustain a conviction. (State v. Shepherd, 213 Kan. 498, 516 P. 2d 945.) The credit to be given such testimony is a matter for the jury’s determination. Lomax’s testimony discloses that Etier, Lomax and the appellant had conspired to rob the Prolerized Steel office and had driven there together for that purpose on the morning of September 11, 1973. Etier, who was armed with a rifle and a pistol, remained in the driver’s seat of the automobile for the obvious purpose of allowing the threesome to make a quick get-away, and also toi be on the alert in the event they were discovered. In performing these duties Etier was a participant in the robbery and was as guilty as Lomax and the appellant. (State v. Turner, 193 Kan. 189, 392 P. 2d 863; and K. S. A. 21-3205.)
In State v. Turner, supra, it was held that where the evidence disclosed the defendant participated in the commission of a burglary, during which the victim was killed by another participant, the defendant was equally guilty of the murder of the victim, and it was only necessary for the state to- produce evidence which tended to connect the defendant with the commission of the crime of burglary, and show that the victim was murdered in the perpetration of such acts. (See also, State v. Boone, 124 Kan. 208, 257 Pac. 739; and State v. Bundy, 147 Kan. 4, 75 P. 2d 236.)
Furthermore in The State v. Roselli, 109 Kan. 33, 198 Pac. 195, it was held that if, in the execution of a common purpose of two persons to rob, one of them murders the victim, the other is guilty of murder.
Accordingly we conclude Etier’s murder of Lake was in furtherance of the threesome’s common design to rob the office. Etier remained in the get-away vehicle armed with a rifle and a pistol which shows he was expected to prevent any exposure of the crime being committed inside the office, and the shooting of Lake who discovered the robbery was a natural and probable consequence of the common propose.
The judgment of the lower court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Owsley, J.:
Defendant, Joe Brooks, appeals from a conviction of the possession of heroin with intent to sell, and sale of same, in violation of K. S. A. 1974 Supp. 65-4127a. The issue on appeal concerns the admissibility of certain testimony by the state’s expert witness.
As part of its case-in-chief, the state called Ronald Jones, a forensic chemist for the Kansas Bureau of Investigation, who analyzed the drugs in question for the state. After testifying in detail as to his background and qualifications as a forensic chemist, Jones stated his opinion of the chemical composition of the substance sold by defendant to an agent of the Kansas attorney gen eral’s office and identified at trial as state’s exhibit 1-A. It was his conclusion, based on his testing, that the substance analyzed contained “lactose, and a brown material which contains heroin.”
Defendant first claims there was insufficient foundation established for the introduction into evidence of Jones’ opinion as to the nature of the substance tested. Defendant does not question his general expertise in the field of forensic chemistry, but argues it was incumbent upon the state to first introduce the written results of the tests performed before the witness could state his opinion as to what the substance contained.
In support of his argument defendant relies upon the case of Lefebvre v. Western Coal and Mining Co., 131 Kan. 1, 289 Pac. 456, wherein this court held it was error to permit a medical expert to testify as to what was shown by an electrocardiogram without first producing the written product of the test in court and submitting it to the opposing party for the purpose of cross-examination in case there was an erroneous interpretation of the test results.
As the state correctly points out, the Lefebvre case arose prior to the adoption in Kansas of the Rules of Evidence under Article 4 of the Code of Civil Procedure. The Kansas Code now provides certain guidelines for the admissibility of expert testimony. K. S. A. 60-456 states in part:
“(b) If the witness is testifying as an. expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
This section must be read in conjunction with K. S. A. 60-458:
“Questions calling for the opinion of an expert witness need not be hypothetical in form unless the judge in his discretion so requires, but the witness may state his opinion and reasons therefor without first specifying data on which it is based as an hypothesis or otherwise; but upon cross-examination he may be required to specify such data.”
These sections clearly provide that a witness may express his opinion without first specifying the data on which the opinion is based. If opposing counsel desires to inquire as to such data specifically, 60-458 allows him to do so on cross-examination.
In Casey v. Phillips Pipeline Co., 199 Kan. 538, 431 P. 2d 518, we held that when an expert witness testified as to value, relying in part on market data and trade journals, such data and journals did not have to be admitted in evidence before his testimony was admissible.
As a general rule, the qualifications of an expert witness and the admissibility of his testimony are matters for determination by the trial court in the exercise of its discretion. (Howard v. Stoughton, 199 Kan. 787, 433 P. 2d 567; Ziegler v. Crofoot, 213 Kan. 480, 516 P. 2d 954.) Here, the witness Jones gave his opinion as to the nature of the substance, based on numerous tests personally performed by him. He further testified in detail as to his qualifications as a chemist and as to what tests were performed. He recounted the step-by-step procedures followed in conducting the chemical spot test and the infrared spectrophotometer test.
It is our conclusion, based upon a thorough examination of the record, briefs, and authorities cited therein, that the trial court properly exercised its discretion in this matter. The foundation established by the state for the introduction of the expert testimony was clearly sufficient. Had defendant desired to inspect and compare the written test results he could have required such evidence to be introduced upon cross-examination of the expert witness. No error or abuse of discretion appears.
Defendant in his second point complains that the evidence developed by the state did not correspond with the allegations set forth in the information under which he was charged. Defendant was charged with the unlawful possession and sale of “a narcotic drug, to wit: heroin, in violation of K. S. A. 65-4105 (c) and Chapter 259 Section 1 of the 1973 Session Laws of the State of Kansas.” (Now K. S. A. 1974 Supp. 65-4127a.) At the trial, the state offered the testimony of its expert witness, Jones, who stated that the substance identified as state’s exhibit 1-A contained heroin. On cross-examination, Jones was questioned by the defense counsel as to the reason for the difference between the infrared spectrograph of the state’s exhibit 1-A, and the one obtained by the defense from an outside source which purported to be a spectrograph on “heroin.” In response, Jones indicated for the first time that the substance contained in state’s exhibit 1-A was not in fact “free” heroin, but was a hydrochloric salt of diacetyl morphine, or what is commonly referred to as a “salt” of heroin. Defendant contends it was error for the trial court to admit state’s exhibit 1-A into evidence because the testimony given on cross-examination was at variance with the charges set forth in the information, thereby misleading defendant to his prejudice and depriving him of the right to effective assistance of counsel.
We have often stated that the evidence in a criminal case must correspond with the allegations that are essential and material in charging an offense. (State v. Miles, 203 Kan. 707, 457 P. 2d 166.) We have held, however, that only a material variance between pleading and proof which tends to mislead an accused in the preparation and conduct of his defense is of consequence upon appellate review. Where the variance is immaterial a conviction will not be overturned upon appeal. (State v. Johnson, 189 Kan. 571, 370 P. 2d 107; State v. Kearns, 211 Kan. 158, 505 P. 2d 676, cert. den. 414 U. S. 841, 38 L. Ed. 2d 77, 94 S. Ct. 96.)
In the instant case defendant was properly charged in the language of the statute prohibiting the possession and sale of a narcotic drug, K. S. A. 1974 Supp. 65-4127a, in compliance with the requirements of K. S. A. 22-3201 (2). In addition, the information included reference to K. S. A. 65-4105 (c), which lists heroin and all heroin salts, isomers and salts of isomers as controlled substances within the purview of the Controlled Substances Act. As the state points out, the distinction between a salt of heroin and free heroin is very subtle. A salt of heroin is a derivative of heroin, and although a salt of heroin contains molecules of heroin, heroin does not necessarily contain molecules of salt. The state charged defendant in the general language of the statute and offered proof consistent with that charge.
Defendant argues he was prejudiced by the state’s failure to originally specify that the narcotic drug was a salt of heroin in that he was unduly surprised and unable to effectively cross-examine the expert witness as to the various tests made on the substance. If, in fact, defendant was surprised and misled by Jones’ testimony it would have been proper for defendant to request a continuance at that stage in the trial. Instead of requesting a continuance, defense counsel proceeded with a thorough cross-examination of the witness. We cannot assign error on this point.
The judgment of the trial court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal by the Union Public. Service Company from a judgment of the district court of Anderson county upholding on review an order of the public service commission fixing a schedule of rates for gas in the city of Colony. After a hearing and rehearing of the matter of rates to be charged in Colony, the public service commission made the following final order fixing the schedule of rates: “Service charge, 75‡ per mo. per customer; 40^ per M cu. ft. for local gas; 60‡ per M cu. ft. for pipe-line gas.” The rate for local gas, forty cents per thousand, was the same as that charged in the schedule filed by the Union Public Service Company.
There was no controversy between the parties as to the rates for local gas. No increase for such gas was asked by the appellant, but the contention of the" appellant was that there was not enough available local gas in the Colony field and hence it was necessary to furnish pipe-line gas at a higher rate purchased from the Cities. Service Company. If there was sufficient local gas to supply the needs of Colony, there was no occasion to use the pipe-line gas or to charge customers more than the local gas rate. The commission held that the Union Public Service Company, which had been taken over by and was a subsidiary of the Cities Service Company, which has a pipe-line from Texas to Kansas City passing through Colony, had made no effort to acquire and furnish local gas to the consumers in the Colony field; that it had ceased the use of local gas and had begun furnishing pipe-line gas, charging the higher rate for it. The commission found that there was abundant local gas in the local field to supply Colony and that it could be procured by the company for twenty cents per thousand cubic feet, which was about half the cost of pipe-line gas. The commission held that the rate being charged consumers by the Union Public Service Company was unreasonably high and that the schedule fixed by the commission, as already stated, was a fair and reasonable return on the investment of the gas company.
On the hearing the present controversy was narrowed to the question whether there was local gas which could be procured at around twenty cents per thousand, or approximately twenty cents less than the pipe-line price paid to the Cities Service Company; and that the citizens of Colony should- receive the benefit of the local gas produced within the city and its immediate vicinity. This appears from the statement of counsel for the Union Public Service Company, in which he said at the final hearing before the commission that:
“As I understand the situation, the only question at issue now is whether there is any local gas at Colony available to the Union Public Service Company for the supply of that town, the former matters of connection to customers have been disposed of and so far as the valuation is concerned the company will accept the commission’s valuation for the purposes of this case, and the only issue is as to local gas.”
That being the issue, the principal consideration on this appeal is whether there 'is evidence sufficient to show that there is enough local gas in the vicinity of Colony to supply the consumers of that city. Considerable testimony was submitted to the commission upon the question and most of it was to the effect that a quantity far in excess of the requirements of Colony was produced within the corporate limits and the immediate vicinity of that place.
The rate fixed by the commission for local gas was in accordance with the schedule filed by the company itself. The consumers at Colony were entitled to local gas at the rate named in the schedule fixed by the company. The Union Public Service Company was a subsidiary of the Cities Service Company and the latter company furnished pipe-line gas to the former company and charged the consumers the scheduled and higher rate for such gas. Necessarily there was greater profit in gas furnished at the higher rate, but because of the relationship of the two companies the earnings of the Colony station all went into the same pocket. The plaintiff company had recognized that a concession should be made for gas obtained in the city and its vicinity and that if local gas was insufficient to supply the demand of the consumers the company could make up the deficiency by obtaining the quantity needed from the pipe line. For the supply of such a deficiency the company was entitled to the higher rate. But if there was sufficient local gas to supply Colony, the consumers should not be required to pay more than the local gas rate. At the hearings the controversy centered upon whether there was enough local gas to meet the demands of the consumers at that place. That was a question of fact which was determined by the triers of the facts and was determined by the public service commission, and also by the trial court from whose decision this appeal has been taken. Much testimony was produced by the parties and that of the defendant greatly preponderated over that offered by the plaintiff. It is unnecessary to set it out at length, but it may be said that if we were vested with the power and the duty to weigh the evidence, settle conflicts in it, and determine the facts as ■ did the commission and trial court, we would feel constrained to uphold the findings of the commission. The trial court affirmed those findings, holding: “That the order of the commission under review is reasonable and lawful. It is therefore ordered and adjudged by the court that said order of the commission be, and the same is hereby sustained.”
An objection is raised because of a comment of the commission that it would take judicial notice that the Cities Service Company, the owner of the Union Public Service Company, had entered into a contract at Parsons to furnish gas to consumers at fifty cents per thousand, based partially on the presence of local gas in that vicinity. Whether or not the commission may take judicial notice of such a contract shown by the records of the commission need not be decided. It is enough to say that there was abundant evidence apart from the Parsons matter to show that there was local gas in and about Colony to supply the customers-at-that place. The issue was framed and tried out on the theory that there was enough gas to supply the demand at Colony, and in view of that issue and the evidence produced it must be held that the comment of the commission objected to, even if erroneous, is. not sufficient to overturn the findings. There was other competent evidence abundant to sustain the findings, and the comment as to the Parsons contract cannot have affected or prejudiced the substantial rights of the plaintiff. In this situation the error, if any, was not material. (Whiteley v. Watson, 93 Kan. 671, 145 Pac. 568.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Sloan, J.:
This is an appeal from the order of the district court of Miami county affirming the award of the commissioner of workmen’s compensation wherein the commissioner allowed compensation to the workman.
The appellee was an employee of the Williams Brothers Construction Company, and the Zurick General Accident and Liability Insurance Company was the insurance carrier. The evidence is to the effect that on October 24, 1930, the appellee was lifting and rolling heavy rocks into a pipe-line ditch and while so engaged felt a burning, stinging sensation in his right groin. He immediately became nauseated and was unable to continue his work. He was examined by a physician, who found that he was suffering from an inguinal hernia which was of recent origin. The appellant offered to pay all the necessary expenses of an operation to relieve the condition caused by the injury. The appellee refused the offer, assigning as his reason that he was “deathly scared of hospitals.” Dr. A. W. Fairchild testified that he had examined the appellee and found he was suffering from a recent hernia; that the recognized treatment for such hernia is a surgical operation; that in practically all cases a cure would be effected and barring unexpected developments, such as in fection, the patient would be able to work in six or eight weeks. Doctor Nesselrode’ testified that he did not examine the appellee, but from the history and description of the injury which resulted in the hernia the only and proper treatment is a surgical operation; that it is not a dangerous operation, and a complete recovery is expected in 100 per cent of the cases.
The commissioner found that the appellee sustained personal injury by accident arising out of and in the course of his employment, and was entitled to compensation for twelve weeks at the rate of $14.70 per week. “It is further found that the commissioner of workmen’s compensation cannot compel the claimant to submit to a hernia operation.” An award was made in accordance with the findings of the commissioner. An appeal was taken to the district court, and the court, without additional findings, adopted the findings of the commissioner and entered judgment accordingly.
The finding with reference to the surgical operation is a conclusion of law. In the light of the circumstances we construe it to mean that the commissioner, or the trial court, has not the power to withhold compensation from an injured workman who refuses to submit to a surgical operation, although it is established that the danger to life is very slight and the probabilities of a permanent cure very great.
The appellant contends that this conclusion is error and insists that under the facts in this case the court should have withheld compensation on the refusal of the appellee to submit to a surgical operation. Many of the states that have adopted a workmen’s compensation act similar to ours have a statutory provision regulating surgical operations. In other states we find no such express provision and there is none in our statute. The purpose of the compensation act is to protect the public, the employer and the employee, and to establish a just and equitable basis for compensation for the workman who is engaged in a hazardous employment. The public is interested in the rehabilitation of injured workmen and the preservation of human life, consequently the first duty imposed on the employer is to provide the service of a physician or surgeon and such medical, surgical and hospital treatment, including nurses, as may be reasonably necessary to cure and relieve the workman from the effect of the injury. (R. S. 1931 Supp. 44-510.) Thus the legislature recognized the necessity and value of- medicine and surgery in effecting relief and restoration of injured workmen. The primary duty which the workman owes to himself and society is to make use of every available and reasonable means to make himself whole. If he is not subject to unusual risk and danger from the anesthetic to be employed, or from the nature of the proposed operation, it is his duty to submit to it if it fairly and reasonably appears that such operation will effect a cure.
This question was before the court in Strong v. Iron & Metal Co., 109 Kan. 117, 198 Pac. 182, 18 A. L. R. 415, in which it was said:
“The unreasonable refusal of an injured employee to permit a surgical operation where the danger to life from the operation would be very small, and the probabilities of a permanent cure very large, justifies a court in refusing compensation under the workmen’s compensation law from and after the trial.” (Syl. |f 1.)
In the opinion Mr. Justice Marshall reviewed the authorities, together with similar statutes in other states, and reached the conclusion that the court had the power to withhold compensation where the refusal of the workman to submit to a surgical operation was unreasonable. The court had under consideration in that case the old workmen’s compensation act, but we see no reason why the decision should not apply with equal force to the present statute.
We hold, therefore, that the commissioner, or the trial court, .has the power to withhold compensation where the refusal of the workman to submit to an operation is unreasonable. The reasonableness of the refusal is a question of fact to be determined by the trier of facts. Upon a finding that the proposed surgical operation will not be attended with danger to life or health, or extraordinary suffering, and, according to medical and surgical opinion, offers a reasonable prospect of restoration or relief from the incapacity from which the workman is suffering, it is the duty of the court, or the commissioner, as the case may be, to withhold compensation where the employer offers to pay the expense of such surgical operation and the employee refuses to submit thereto.
The judgment of the district court is reversed, and the court is directed to proceed with the trial of the case in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Harvey, J.;
This is an action in the nature of specific performance to establish and enforce an alleged parol contract between plaintiff and William Laupheimer by which plaintiff was to have his Kansas property at his death. The trial court made findings of fact and rendered judgment for defendants. Plaintiff has appealed.
Briefly the material facts may be stated as follows; William Laupheimer, for many years a traveling salesman for a wholesale shoe firm, accumulated property which, at the time of his death, March 6, 1930, the trial court found to be of the value of $167,000. It consisted of business properties in Emporia, a third interest in a farm near Emporia, government bonds, stock in building and loan associations, and cash in bank, all held at Emporia, and a $15,000 residence property in St. Louis, Mo. This last property had been purchased as a home for his mother and his only sister, who lived with and cared for the mother for many years. At the time of his death he was a widower. He had no children. He had two stepchildren, one living at Parsons, Kan., and the other at St. Louis, Mo. His only immediate relatives were his brothers, Martin Laupheimer, husband of plaintiff, Alex Laupheimer, who lived at St. Louis, and a sister, Fannie Bamberger, and three nieces, being daughters of his sister, just mentioned. For several years prior to his death he had been afflicted with paralysis agitans, commonly called palsy, which grew worse gradually. About six years prior to his death he retired from active business life except to care for and manage his Emporia property, and, until the change later to be mentioned, made his home at the Mit-Way hotel. For perhaps forty years he had been intimately acquainted with L. J. Buck, a banker at Emporia, and kept his account at the bank with which Mr. Buck was connected. He had made it a practice for many years often and repeatedly to discuss with Mr. Buck his financial affairs and details thereof, although he was himself a shrewd business man and was spoken of as being “hard-headed” in ultimately forming his own judgments and carrying them out. In October, 1923, he executed his will, which he had prepared by one of the leading attorneys of Emporia, whom he had known many years. By this will he gave the St. Louis home to his sister, should she survive him; if not, to her daughters. He gave to each of his brothers one dollar and stated as his reason for doing so that each had sufficient property to supply his every need. He gave each of his stepchildren $1,000. The remainder of his property he placed in trust for the use and benefit of his nieces, the daughters of his sister. He named his banker friend, L. J. Buck, and his step-son, Tracy Pritchard, executors of his will. When the will was executed he placed it in his box at the bank, but wrote a letter to L. J. Buck advising him where the will would be found, authorizing him to open the box, take the will out and have it probated, and giving specific directions for his burial, one being that he be buried at St. Louis by the side of his mother.
Martin Laupheimer had lived at Wichita, where his wife obtained a divorce from him in November, 1923. Soon thereafter he married plaintiff, many years his junior. In 1927 they were living in Indiana and were in hard circumstances financially. They had pawned or pledged their diamonds and some other personal effects, and plaintiff was running a rooming house. Martin visited William at Emporia in June, 1927, and returned to Indiana. There was later correspondence between them, but the letters were not produced at the trial. On several occasions Martin wrote or wired William for money. These communications annoyed William. He repeatedly talked with Mr. Buck about them and wanted to know: “Do I have to send this money?” Mr. Buck inquired: “Do you owe him anything?” William vehemently asserted that he did not. Mr. Buck’s reply was: “Then you don’t have to send it to him.” Although it is not clear just when it was done, William did send Martin money in the way of loans. In December, 1927, William sent Martin $50. Soon thereafter Martin’s wife, plaintiff herein, disposed of her rooming house and both of them came to Emporia, arriving there about December 14, 1927. William was living at the hotel, being assisted and cared for as needed by the manager and the help. Shortly before that he had fallen, and was bruised but not seriously injured. Previously he had not known or met plaintiff. Plaintiff and her husband had come from Indiana to take care of William. It is not contended the contract relied upon in this action had been made at that time. It is clear from the evidence it had not been made. How ever, they had been promised by William that they would be paid, or would be well paid, for their services. At plaintiff’s suggestion an apartment was rented and plaintiff and her husband and William Laupheimer moved into. it. Thereafter, until the death of William Laupheimer, about twenty-seven months later, the parties lived together in an apartment, with one change of location. Plaintiff prepared the meals, kept house for her husband and William Laupheimer, and she and her husband waited on him and took care of him until his death. William Laupheimer paid the rent on the apartment and paid for groceries and laundry and all other household expenses during this time, aggregating $3,208.91. He also gave checks to plaintiff amounting to $511 and to her husband amounting to $569. On February 17, 1930, William Laupheimer canceled a note payable to him which had been executed by Martin Laupheimer, plaintiff’s husband, in the sum of $1,735.98, which represented moneys loaned to Martin from time to time, including money loaned to redeem the diamonds pledged by plaintiff and her husband. On that date he also executed a check for $1,500 payable jointly to plaintiff and her husband, which he gave to them, and suggested that they deposit it to their joint account in the building and loan association. Both of them indorsed this check and deposited it as suggested. On March 3, 1930, Martin Laupheimer asked William for a check for $300 to pay rent and other household expenses. William thought a check for $150 would be sufficient, but on the advice of his physician and Mr. Buck, who were present at the time the request was made, and with some reluctance, he did make the check for $300. He was a man who “didn’t like to let go of his money.” William Laupheimer had made no change in his will since it was executed in 1923, nor had he discussed any change or modification of his will with the attorney who prepared it, or with Mr. Buck, or with anyone with whom he ordinarily consulted about his business affairs. When William Laupheimer died, March 6,1930, Mr. Buck followed the letter of instructions to him with respect to his burial, also opened his box at the bank, took from it his will, which was duly probated, without any objections from plaintiff or her husband, although he was present and he and others present were asked if there were any objections to its probate. This action was brought the following October.
As to the specific.contract relied upon in this action plaintiff’s evidence was to this effect: After the parties had moved from the hotel into the apartment William Laupheimer spoke to plaintiff, expressing appreciation of the way she prepared his meals and took care of him, and expressed the desire that he wanted her to continue to do that as long as he lived; told her that he was worth a lot of money, spoke in a general way of his real estate and personal property, and told her in substance that if she would continue to care for him as long as he lived that he would leave her all of his property. Plaintiff rather demurred to it at first, suggested that he might not be satisfied with the care he would receive from her; he assured her he would be, and she suggested that the people in St. Louis might object. As to that he said he would make his own contracts and run his own business. The matter was discussed in a general way on two or more occasions until December 28, 1927, when William Laupheimer pressed plaintiff for a definite understanding about the matter. She asked him to state his proposition, and he said, in effect: If you will stay here and take care of me as long as I live I will pay all the household expenses and at my death will leave you all of my Kansas property. Plaintiff agreed to that. Plaintiff’s husband, sitting within hearing, testified to this conversation, and that then William Laupheimer spoke to plaintiff’s husband and asked him if he heard that. Pretending he did not hear clearly, William repeated it to him. Plaintiff testified to the statements made by William to her husband. The woman in charge of the apartments was in and out frequently, and she testified that soon thereafter William Laupheimer told her of the contract he had recently made with plaintiff. There is testimony that one day early in 1928 L. J. Buck called to see William Laupheimer, told plaintiff and her husband that he had some business to transact with him and would like to talk with him alone. They retired to the room of the manager of the apartments, and in about an hour Mr. Buck advised them he was through with his business, and soon thereafter left the apartment; that soon after Mr. Buck left William Laupheimer told them that he now had the papers fixed to carry out the contract he had made with plaintiff. With respect to that transaction Mr. Buck testified that he did go there in February, 1928, to transact business, but that the business transacted was the making out of the income tax report for William Laupheimer, and he produced data and computations which he testified were gone over or made at that time in that connection, and further testified that was the only business transacted. Mr. Buck called to see William Laupheimer often, sometimes being sent for. Other friends called, some of them frequently. Several witnesses on behalf of plaintiff testified of the good care given William Laupheimer by plaintiff and her husband; that he had expressed appreciation of the care and stated that they would lose nothing by it, or would be well paid for it; that he had it fixed so they would be well paid for it, or words to that effect.
From the evidence the court found, among other things:
“The evidence to establish the making and entering into, or the execution of the oral contract is insufficient and is far from satisfactory. I am not convinced by the evidence introduced that the contract set out in the petition was in fact-made.”
Appellant complains of this finding of the trial court. We commend the court for having made it. Inherently the testimony to support the contract relied upon by plaintiff contains many elements of improbability. Shortly before plaintiff and her husband came to Emporia, obviously the business they were engaged in was not successful, for they had pledged their personal effects and plaintiff’s husband was borrowing small sums from his brother. They came to Emporia to care for him, with the understanding that they would be paid for it — not with the understanding they were to have all his Kansas property. In addition to actual living expenses they were paid sums, including the canceled note of plaintiff’s husband, aggregating $4,315.98. If they deemed this insufficient they could have presented a claim for further compensation to the probate court.
To establish the fact that this man — shrewd, capable and painstaking in business matters, who always consulted his banker and frequently his lawyer, and who “didn’t like to let go of his money” even up to three days before his death — should, in addition to what he paid, give plaintiff his Kansas properties of the value of $152,000, without making any change in his will or consulting his business advisers, requires clear and convincing evidence. If plaintiff was to have all of his Kansas properties, why was he so particular, on February 17, about two weeks before his death, when he must have known the end was near, to give plaintiff and her husband $3,235.95 by check and canceling a note? If plaintiff’s contention be true, that was a useless formality. If plaintiff owned all this property immediately on the death of William Laupheimer, why did she permit the will, which gave it to others, to be probated without protest, and the estate to be administered thereunder for seven months before taking steps to protect her rights? These and other considerations naturally forced themselves upon’ the attention of the court. This case is of that class in which trial courts are called upon to examine with care the evidence offered to.sustain the contract relied upon. This court, and others, have frequently so ruled. (Cathcart v. Myers, 97 Kan. 727, 732, 156 Pac. 751; James v. Lane, 103 Kan. 540, 549, 175 Pac. 387.) Where the evidence to establish the parol contract relied upon consists of the testimony of plaintiff and his near relatives and immediate friends there is all the more reason for careful scrutiny. Some courts have ruled that the testimony must come from disinterested witnesses. (Andrews v. Aikens, 44 Ida. 797, 260 Pac. 423.)
From what we have said we do not want to be understood as passing upon the weight of the evidence in this case. We are simply pointing out some items of evidence necessarily considered by the court in reaching its conclusion of fact and which justify and sustain it. There are other items of evidence in this case, the consideration of which would lead to the same conclusion, but we shall not take space to enumerate them.
Appellant complains that the court did not make requested findings that the conversations between plaintiff and her husband and William Laupheimer took place on December 28, 1927, as testified to by them. The fact that these specific findings were requested, and the court refused to make them, but in lieu thereof made the finding above quoted, is tantamount to a finding that no such conversations took place.
Appellant complains of some of the other findings of fact made by the trial court. We have examined these complaints and find no substantial merit in them. In fact, none of them becomes important if the contract relied upon is not established. The basis of plaintiff’s claim is the contract, and if she cannot establish that she has no right to recover. “The contract is the foundation of plaintiff’s right to recover.” (Dreher v. Brumgardt, 113 Kan, 321, 214 Pac. 419.)
Parol contracts of the character relied upon in this action, when compliance with them requires the transfer of title to real estate, are normally unenforceable under the statute of frauds. They are enforced by a court of equity only when the evidence to establish that the contract was made is clear and convincing, that it has been complied with by the promisee, and the services performed thereunder are fairly commensurate to the amount claimed; that the promisee has no other adequate remedy to recover compensation for the services performed, or that they are of such a character they cannot be measured in money, and that under all the circumstances it would be inequitable and against good conscience and fair dealing not to enforce them. In this case, when we consider the amount already paid, the value of the property claimed is out of all proportion to services rendered. Appellant does not argue the point, neither is there any attempt to show that plaintiff could not have recovered any additional compensation due her, if the amount already paid was insufficient, either by an action at law, or by presenting her claim to the probate court.
There was testimony on the question of whether the physical condition of William Laupheimer affected his mental ability. The court found that his mental ability was impaired to some extent, and in view of that, and of the situation of the parties at the time the alleged contract was made, the rule requiring independent advice was applicable. Appellant complains of that holding. We find it unnecessary to consider that carefully for the reason, unless plaintiff had the contract relied upon, she is not entitled to recover in any event.
Appellant complains of the manner in which the trial was conducted, and this presents the only question of consequence is this case. At the beginning of the trial the following colloquy between the court and counsel took place:
Court: “Before we begin I am wondering shall we proceed in the way we did in the Duncan case in Chase county, reserving rulings and numbering them, or would it be better to rule on them as we go along? Personally I would rather reserve the ruling and preserve the numbers.”
Attorney for defendants: “I am sure, as I stated before, that some close legal questions will be developed in this case. I would suggest that where your honor has any doubt about it you should reserve your rulings; where your mind is clear, rule as we go along.”
Attorney for plaintiff: “That is agreeable to us.”
When defendants began offering their evidence counsel for plaintiff made numerous objections. Some of these were ruled upon at the time, but the rulings of the court were reserved on 212 objections, which were carefully marked for_identification and numbered. Fifty of these objections were later withdrawn. At the time the testimony was being taken no objection was made to the court withholding its rulings. When the evidence was completed a transcript of the testimony was prepared. The trial court took the transcript and the exhibits, carefully went through each one of the reserved rulings, and as to each one made a statement of the question ruled upon, and included a statement of its rulings in the findings of fact. In 118 cases obj ections were sustained. In twenty instances they were overruled. In eighteen instances relating to correspondence objections were sustained as to contents of letters, but overruled as to the fact that correspondence was had between the parties. There were two duplications of numbers. Appellant contends that because of the reserved ruling on so many questions she was unable to know the views of the court as to the evidence, and therefore uncertain what rebuttal evidence, if any, to offer. If plaintiff found herself so handicapped it would have been well to have called it to the attention of the court while the trial was in progress. No showing is made that any other witnesses would have been called or any different testimony introduced on rebuttal had the rulings been made as the trial progressed. Plaintiff called witnesses in rebuttal and no complaint is now made that either in her case in chief, or in rebuttal, was any evidence offered on plaintiff’s behalf excluded. In its findings the trial court specifically stated that in making the findings it did not consider any of the evidence objected to by plaintiff. In view of these facts we do not see how it is possible for plaintiff to have been prejudiced, by the trial court reserving a number of rulings in the manner above stated. We wish to make it clear, however, that we do not commend that practice. Certainly it might be confusing to counsel, even to the court. Occasionally a trial court may find it to the interest of justice and as tending to promote a fair trial to reserve a ruling as to certain objections, or to a certain class of evidence. A few of such reservations may be readily kept in mind by counsel and the court, but when the number becomes large the difficulty of doing so is greatly increased.
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The opinion of the court was delivered by
Smith, J.:
This was an action, among other things, to construe the terms of a will. Judgment was for defendant. Plaintiff appeals.
The will which the action was brought to construe is that of Richard Coughlin. The pertinent parts of the will are as follows:
“Fifth: All the rest and residue of my property, real, personal and mixed, of every kind and nature wheresoever situate, after the payment of my debts, and the three specific bequests above mentioned, I give, devise and bequeath to my wife, Eliza A. Coughlin, and to my son, David R. Coughlin, to be by them, and each of them, held during their natural lives, and after their death, to the heirs of the body of my said son, David R. Coughlin, share and share alike as is more specifically'hereinafter designated.
“Sixth: It is my will that my executors hereinafter named shall, upon my death, take possession and control of all of my estate, real, personal and mixed, as aforesaid, and shall out of the income therefrom, or out of the sale, if necessary, of any portion of the personal property thereof, first pay my debts, the expenses of administration, and the three bequests before mentioned. That they shall handle the rest of said property, real and personal, as may to them seem for the best interests of my estate, and of the beneficiaries thereunder. That they shall invest and reinvest the personal property, monies, and the proceeds therefrom, and shall rent the real estate and collect the rents therefrom, and invest the same, and shall, semiannually up until the death of both of the above-named Eliza A. Coughlin and David R. Coughlin, pay one-half of the said income to the said Eliza A. Coughlin and one-half to the said David R. Coughlin.
“In the event of the death of either the said Eliza A. Coughlin or David R. Coughlin, then the survivor shall receive during her or his life all of said rents and profits and income as aforesaid.
“My said executors hereinafter named shall not by these presents be construed to have authority to sell or dispose of any of the real estate of which I may die seized, unless such act becomes necessar3f for the payment of debts due from my estate.
“After the death of both the said Eliza A. Coughlin and David R. Coughlin, then the trust reposed in my executors, or their successors, shall cease, and all of my property, real, personal and mixed of every kind and nature, its proceeds and accumulations shall pass to and become .the absolute property of the heirs of the body of my said son, David R. Coughlin, share and share alike, and the trust so reposed in my said executors, as aforesaid, shall cease.
“I designate and appoint as executors my wife, Eliza A. Coughlin, and my son, David R. Coughlin.”
Eliza Coughlin predeceased Richard. David Coughlin accepted under the will and took up his duties as executor and trustee. A short time after the death of Richard Coughlin, David Coughlin conveyed the real estate devised in the will to W. S. Lower. Immediately W. S. Lower and wife reconveyed to David Coughlin. David now claims that his father’s will created an estate tail in him and that these conveyances severed the entailment and vested him with the fee-simple title.
This action was brought by a grandson of Richard Coughlin and a son of David Coughlin. He claims that the will of his grandfather only created a life estate in his father, David Coughlin, and that the property which David Coughlin took under the will he took only in trust for him and his brothers, all sons of David. There are other questions raised in the briefs, but the answer to this question does away with the necessity to answer the others. We must examine the will, then, to determine whether it creates an estate tail in David Coughlin. The fifth clause devises the property. In it appears these words:
“I give, devise and bequeath to my wife, Eliza A. Coughlin, and to my son, David R. Coughlin, to be by them, and each of them, held during their natural lives, and after their death, to the heirs of the body of my said son, David R. Coughlin, share and share alike, as is more specifically hereinafter designated.”
An estate tail has been defined by this court as “a freehold estate in which there is a fixed line of inheritable succession limited to the issue of the body of the grantee .or"devisee,.and in which the regular and general succession of statutory'heirs at law is cut off.” (Gardner v. Anderson, 116 Kan. 431, 227 Pac. 743.) We can see nothing that can be added to this definition. Certainly the language quoted above from the will in question comes within the terms of that definition. There is only one place for this property to go after the death of David Coughlin, and that is to the heirs of his body. If there should be no heirs of his body living at the time of his death, that is, if appellant in this case and all his brothers should have predeceased David Coughlin, and left surviving them wives or adopted children, who would have inherited from David Coughlin under the law of descents and distribution, under this will these heirs would not take anything. This question has been before this court a number of times. The deciding question has always been, Does the language used in the will limit the succession of statutory heirs to the heirs of the body of the devisee? (See Ewing v. Nesbitt, 88 Kan. 708, 129 Pac. 1131; Wiggins v. Powell, 96 Kan. 478, 152 Pac. 765; Gardner v. Anderson, 114 Kan. 778, 227 Pac. 743; Allen v. Pedder, 119 Kan. 773, 241 Pac. 696; Woodley v. Howse, 133 Kan. 639, 3 P. 2d 475.) Following these cases, the question here must be answered in the affirmative.
The appellant realizes the force of those cases, but seeks to avoid the effect of them by arguing that from the language of the will besides that last quoted, the words “heirs of the body of my son David R. Coughlin” are words of purchase and not limitation. That is, that they are intended to designate a class which the testator intended should have the real estate in fee after the death of those to whom he was devising a life estate and not to limit the succession of the property. If this court should hold that these words were words of purchase and not of limitation, then an estate tail was not created.
There is some language in the will that indicates an intention to create a life estate in his wife and son with a remainder to his grandchildren. In seeking to apply this construction to this will, however, we are met by the fact that the testator used language that has been held specifically to create an estate tail. (See cases herein cited.)
Without doing violence to the rule that the entire will must be examined, and the intent of the testator gleaned from that, we have heretofore held that the use of language such as that contained in the will under consideration created an estate tail. The court ex amines the language and if the provisions would have the effect of cutting off some of the succession of legal heirs, then the rules with reference to an estate tail must be applied to it.
We hold, therefore, that the will in question created an estate tail, and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action originated as a suit to set aside the will of the late M. R. Diver, of Wichita, on the ground of want of testamentary capacity and undue influence. Among the original defendants were the Fourth National Bank in Wichita, executor of the will, and Frank R. Diver, one of the legatees under the will.
Plaintiff alleged that she was an heir of M. R. Diver; that he died seized of real and personal property in Kansas, California, Arkansas and Oklahoma, of the value of $300,000; that certain persons had procured deeds to certain of M. R. Diver’s real estate through undue influence. Plaintiff also pleaded the facts of the litigation brought by Frank R. Diver to set aside the will of M. R. Diver as far as it had then progressed, and alleged that he claimed to be an heir at law of M. R. Diver. The prayer of plaintiff’s petition read;
“Wherefore, plaintiff prays that the alleged and purported will of said M. R. Diver, deceased, hereinbefore referred to as Exhibit A, be canceled, set aside and held for naught, and that the probate of said purported will be canceled, set aside and held for naught; that the defendants the Fourth National Bank in Wichita be required to execute such deeds of conveyance to the lands acquired by them belonging to the estate of M. R. Diver, deceased, to such persons as may to the court seem proper, and that the plaintiff have such further, other or different relief to which she may in law or equity be in good conscience entitled.”
Defendant Frank R. Diver filed an answer and cross petition in which he admitted the infirmities in the will, and alleged that it had been set aside and held for naught in an action which he as plaintiff had prosecuted to final judgment in the district court of Sedgwick county, Kansas. But in his cross petition he alleged that he was the owner of the legal and equitable estate in certain described lands and lots in Wichita; also in Sumner county, Kansas; Crawford county, Arkansas; Oklahoma county, Oklahoma; and in the city of Los Angeles, California, described in plaintiff’s petition, and that he was entitled to the quiet and exclusive possession of every part thereof. He also alleged that plaintiff claimed some right, title or interest in the described lands and lots, the exact nature of which he did not know, but that any and all of plaintiff’s claims thereto had no basis in law or in fact, and that they were asserted by plaintiff for the sole purpose of harassing defendant and clouding his title to the aforesaid properties. He prayed that his title be quieted and for an adjudication that plaintiff had no title or interest therein and for other proper relief in equity.
After this lawsuit was begun, the litigation growing out of an abortive marriage between M. R. Diver and Ida A. Wilhite (Fourth Nat’l Bank v. Diver, 131 Kan. 113, 289 Pac. 446) was concluded; likewise the litigation brought by Frank R. Diver to set aside the will of M. R. Diver (Diver v. Fourth National Bank, 132 Kan. 36, 294 Pac. 924). Thereupon Ben Lampl, as administrator of the estate of M. R. Diver, was substituted as defendant in this action for the Fourth National Bank in Wichita, as executor and trustee. The administrator filed an answer and cross petition in which he made substantially the same allegations as those pleaded by the defendant, Frank R. Diver, and prayed for relief consistent therewith.
Plaintiff filed motions to strike the cross petitions of the administrator and of Frank R. Diver on the ground that they were not proper set-offs to plaintiff’s action, nor new matter in defense thereto, nor germane to the subject matter of plaintiff’s action, and that they were unauthorized by the code of civil procedure. These motions were overruled, and plaintiff then filed separate answers to the cross petitions denying their allegations, challenging the court’s jurisdiction to entertain the causes of action alleged therein, and denying that Frank R. Diver was an heir at law of M. R. Diver. Plaintiff also alleged that she was the natural daughter of Joe Diver, deceased, only son of M. R. Diver, and that she had been recognized by Joe Diver as his daughter and that such recognition was general and notorious, and that she was the sole and only heir of M. R. Diver, and that—
“As such heir is entitled to take all of the property, real, personal or mixed, of which the said M. It. Diver died seized or possessed.”
Before the case was called for trial plaintiff dismissed her petition as against all the defendants except Ben Lampl, as administrator, and on the day of the trial she dismissed her petition against him. The cause then proceeded to trial on the issues raised by the cross petitions and plaintiff’s answers thereto. In his opening statement for plaintiff, her counsel said:
“The issues as framed here present, as I think, nothing more than a suit to determine adverse claims or quiet title suit as it is sometimes spoken of and we have contested by our answer and we do contest both the heirship of Frank Diver and assert our own heirship. That is the issue as I understand it.”
Evidence at length was then adduced in behalf of the cross petitioners. The mother of Frank R. Diver testified that he was the son of Joe Diver, only son and heir of M. R. Diver; that she and Joe were married when their son was about four years old and took up their abode in Wichita; that Joe openly acknowledged Frank as his son. Although she separated from Joe when Frank was about twelve years old, and has lived apart from him for twenty-five years, she was able to produce a considerable number of Joe’s letters to her in which he referred to Frank in terms of paternal endearment. Several other witnesses testified that Joe openly, uniformly and frequently spoke of Frank as his son, that he exercised paternal control over him, and frequently expressed pride in the lad. Joe’s wife (mother of Frank) left him after having lived with him for about eight years, but that did not alter Joe’s interest in Frank. After that separation, on a certain occasion it was reported to Joe that Frank, then about twelve years old, was in a Wichita saloon. Joe brought him out and spanked him, saying: “I guess I will do the drinking for the Diver family.” M. R. Diver himself, whose intestate estate is the prize which plaintiff in this action sought to obtain, was apparently of the same rough, unconventional character as his son. On one occasion when his wife chided him for paying a fine for Joe he said with emphasis needless to repeat:
“Joe is my only child and Joe’s child is my only grandchild and ... I will spend money on them 'as long as I have it.”
Joe followed the business of a hack driver in Wichita, and he was accustomed to carry Frank with him about town. His paternal interest in the lad did not cease until Frank was seventeen years old, by which time Joe’s health had greatly declined. At that final meeting he gave his son $2. A few months later, on March 25,1902, Joe died in Hot Springs, Ark.
It is needless to rehearse at greater length the evidence showing the relationship of Frank Diver to Joe Diver and that Joe Diver openly and notoriously acknowledged him as his son, not only by words but by a life-long course of conduct as consistent as could be expected of a person of Joe’s wayward and irregular habits. .
The plaintiff sought to establish her pedigree as the illegitimate daughter of Joe Diver and to prove that he had openly and notoriously acknowledged her as such. The evidence to that effect was meager and unconvincing. Plaintiff was the daughter of one Jennie Evans, and was born in a Wichita hotel in February, 1897. Having this baby for her cradle but no husband for her bed, Jennie named it Marie Evans, and when it was two weeks old she gave it to a childless couple in Wichita, J. T. Holmes and his wife, to rear as their own. When the child was four months old, Jennie and Mr. and Mrs. Holmes appeared before the probate court of Sedgwick county and proceedings for the formal adoption of the baby were consummated. Thereafter plaintiff was reared in the family of Mr. and Mrs. Holmes as their daughter and so remained until her marriage. Mrs. Holmes testified:
“After I adopted this baby, I lived in Wichita from 1897 until the fall of 1900; and from there I went to Granite, Okla., taking this child with me; and she has remained with me from that time on until she grew into womanhood. And during that time Joe Diver never made any inquiry concerning this child; or contributed anything to its support. Joe Diver did not during any of that time come to see this child; nor did I ever receive any letter from him concerning it, or concerning anything else. She has lived with me from the time she was two and a half weeks old until she was married. She was married when she was seventeen years 'old.”
The principal bit of evidence to prove that plaintiff was the daughter of Joe Diver was given by a Mrs. Sarver, who testified that she was a girl of fifteen years when plaintiff was born in the Occidental hotel in Wichita. Joe Diver came into the hotel and said to witness:
“I am a daddy; I’ve got a girl.”
‘‘Cross-examination:
“Q. What day of the month was it that you say he made that statement, ‘I am a daddy’? A. I could not tell you the month.
“Q. Couldn’t even tell the month? A. It was in February.
“Q. What part of February? A. I could not tell you.
“Q. But you do tell the court that you remembered a thing that happened when you were fifteen years old, some thirty-four years ago? A. Yes.”
To overcome that testimony defendants called one Jones, who had been a constable, deputy policeman, and city fireman, and who was intimately acquainted with Joe Diver for many years. He testified that when plaintiff was born, he had twitted Joe about the baby and its mother, insinuating that he was the baby’s father. Joe hurled at the witness a stream of profanity, adding—
“You were at the Santa Fe depot when I met that woman and took her from there to the Occidental hotel. You know-well, it isn’t my baby. . . . You know-well, that I am not the father; that it isn’t my kid . . . the father of that child is a Jew. I don’t look like a-Jew, do I?”
Again we must say that as this court has nothing to do with determining the preponderance of evidence it would serve no purpose to reproduce it at great length.
The trial court made findings of fact in favor of defendants — that Frank R. Diver was the only child of Joseph R. Diver, deceased; that Joseph had recognized Frank R. Diver as his son; that such recognition was general and notorious and in writing; that Joseph R. Diver was the son and only child of M. R. Diver, deceased; that neither M. R. Diver nor Joseph R. Diver left surviving them or either of them any widow or other heirs except Frank R. Diver, defendant herein; and that Frank R. Diver was entitled to inherit the M. R. Diver properties (described in detail) in Wichita, in Sumner county and Wallace county, in Crawford county, Arkansas, in Oklahoma county, Oklahoma, and in Los Angeles, California. The court also found that plaintiff, Maurea Solomon, was not a child of Joseph R. Diver, and was never recognized by him as his child; that there never was a general and notorious recognition of her as his child; that plaintiff was not entitled to inherit any of the property of M. R. Diver, deceased, and that she had no right or interest therein; that the title to all of the real estate situated in Kansas which had been owned by M. R. Diver at the time of his death should be quieted in Frank R. Diver and against plaintiff; and that Frank R. Diver should be adjudged to have the sole ownership of the Kansas real estate and all and entire the assets, real, personal and mixed, of the M. R. Diver estate, wherever situated, and that plaintiff should be barred and enjoined from asserting any interest therein.
Judgment was entered accordingly, and plaintiff appeals, urging certain errors which will be noticed in the order of their presentation.
It is first contended that the trial court committed error in not striking the cross petitions of the administrator and Frank R. Diver. The argument is made that the sole purpose of plaintiff’s petition was to obtain an adjudication that the will of M. R.. Diver was a nullity, and that the matter alleged in the cross petitions was not germane thereto. That contention is not tenable. Plaintiff brought defendant Frank R. Diver into court. By reference and otherwise she pleaded the fact that Frank R. Diver had brought suit to set aside the will of M. R. Diver. In the prayer of her petition she asked that certain defendants who had acquired deeds from M. R. Diver be required to convey the properties covered by those deeds “to such persons as may to the court seem proper.” This necessitated an adjudication as to whom those properties should be conveyed. Plaintiff also sought such further relief as she might be entitled to in law, equity and good conscience. In law, equity and good conscience, under our elastic code of civil procedure the defendant Frank R. Diver was entitled to traverse the allegations of plaintiff’s petition and to seek relief as broad and all-inclusive as she. So, too, was the administrator, who was properly brought into the litigation. There was nothing in the issues as first joined which would confuse the plaintiff in the maintenance of her action to justify a severance. If there had been, a severance might have been obtained, and the cross actions of Frank R. Diver and the administrator could have been separately docketed and separately tried. {Campbell v. Durant, 110 Kan. 30, 35, 202 Pac. 841, and syl. ¶ 5; Sentney v. Commercial Nat’l Bank, 128 Kan. 107, 110, 111, 275 Pac. 1081; Scott v. Devine, 129 Kan. 808, 811, 284 Pac. 594; 1 Bancroft’s Code Practice and Remedies, 613.)
Counsel for appellant direct our attention to some provisions of the code which in their opinion do not sanction the trial court’s ruling on the motion to strike nor the procedure we have just suggested. A motion to strike for misjoinder, is equivalent to a demurrer, and as to it our code says:
“When, a demurrer is sustained on the ground of misjoinder of several causes of action, the court on motion of the plaintiff shall allow him, with or without costs, in its discretion to file several petitions, each including such of said causes of action as might have been joined; and an action shall be docketed for each of said petitions, and the same shall be proceeded in without further service.” (R. S. 60-709.)
As it turned out, the plaintiff first abandoned part of her action and eventually the whole of it, which was her privilege, but that did not require the principal defendant and the administrator to submit to having their cross petitions stricken and to commence their cross actions anew. We are well aware that in some other jurisdictions procedure and practice still cling more or less to the age when the mechanics of procedure were regarded as of more concern than the aims and ends of justice — which procedure was designed to achieve. In this jurisdiction we make no fetish of procedure. Under the genius of our code it is only a means to an end — -to give every litigant a fair chance to present his cause and make his defense so that justice may speedily and economically be administered. Applying that judicial slant to the trial court’s ruling on the motion to strike the cross petitions from the files, where does it appear that plaintiff did not have'a fair chance to present her cause because of the cross petitions? Nowhere. She abandoned or sought to abandon the litigation altogether. The will of M. R. Diver was set aside without her help and at no expense to her. If defendants’ cross petitions had been stricken and refiled as separate actions, or if a severance had been granted and the cross petitions separately docketed, it is not conceivable how such a maneuver could have helped her. She had laid claim to an interest in the Diver estate, and the cross petitioners were entitled to have an adjudication on that claim.
The practice followed in the case at bar has long been recognized as proper in this jurisdiction. In Venable v. Dutch, 37 Kan. 515, 15 Pac. 520; 1 Am. St. Rep. 260, plaintiff brought an action in ejectment; defendant filed a general denial, pleaded possession, set up a tax deed, and prayed that his title be quieted. Plaintiff moved to strike that part of defendant’s answer which set up title under the tax deed. This motion was overruled, likewise plaintiff’s demurrer thereto. Plaintiff then dismissed his action without prejudice, but the court permitted the cause to stand on the allegations of defendant’s answer. It proceeded to judgment in favor of defendant, and plaintiff appealed, making substantially the same contention as that urged by counsel for appellant in the case at bar — that the answer was not a counterclaim. (R. S. 60-709 was not then enacted.) This court held otherwise, citing that part of section 95 of the code of 1868 (R. S. 60-711) which extends the meaning of a counterclaim to include a claim “connected with the subject of the action.” Part of the syllabus reads:
“In such an action [in ejectment] when the plaintiff dismisses his cause of action the defendant has the right to proceed to the trial of his claim for the purpose of determining his interest in the land as against the plaintiff. He then assumes all the burdens of a plaintiff, and is entitled to his rights so far as amending his pleadings is concerned.” (Syl. ¶ 2.)
Other cases illustrating and elaborating the same rule are: Thrashing-Machine Co. v. Currey, 75 Kan. 365, 89 Pac. 688; Wilkinson v. Mears, 77 Kan. 273, 94 Pac. 136; Lawson v. Rush, 80 Kan. 262, 101 Pac. 1009; Blair v. Craddock, 87 Kan. 102, 105, 123 Pac. 862; Miller v. Thayer, 96 Kan. 278, 282, 150 Pac. 537; Dalsing v. Leib, 116 Kan. 44, 46, 47, 225 Pac. 1074; Hendrix v. Wyandotte County Commissioners, 121 Kan. 85, 245 Pac. 1052. See, also, San Antonio Suburban Farms v. Shandy, 29 F. 2d 579, where Judge McDermott, then federal district judge, discussed the elastic character of a cross petition under the Kansas code. The error predicated on the trial court’s ruling on plaintiff’s motion to strike the cross petitions is not sustained.
It is next contended that the trial court erred in admitting in evidence a certified copy of the journal entry of judgment in the case of Diver v. Fourth National Bank, which was the action where Frank R: Diver obtained judgment (affirmed in this court, 132 Kan. 36, 294 Pac. 924) setting aside his grandfather’s will. Plaintiff makes the point that she was not bound by that judgment. Granted. Nevertheless Frank R. Diver had a right to show the basis of his title to the properties which were the subject matter of the cross action. Even plaintiff’s own counsel, in his opening statement, said that the issues as framed presented a suit to determine adverse claims or to quiet title. It was necessary and proper for Frank R. Diver to show his title step by step, and one proper step was to show that he had vindicated his claim of heirship to the Diver estate in another action in which that claim was properly drawn in question. That judgment was some evidence of his title, not conclusive against plaintiff, of course, but certainly admissible. In 34 C. J. 1052, 1053, 1054, it is said:
“Although a judgment is not admissible against strangers to prove the facts on which it is based, it is admissible against them to prove the fact and time of its rendition, and the legal consequences resulting therefrom. . . .
“Although a party cannot prove the ultimate facts on which his title depends by a judgment rendered in an action to which his present opponent was not a party, or in cases where the latter does not claim under parties to the former action, yet a judgment is admissible, even against a stranger, where it is offered as a link in a chain of title, or as a muniment of title. ... It will serve only to aid or supply the particular link which without the decree would be defective or absent.”
Moreover, plaintiff’s original pleading brought into this case the fact of Frank R. Diver’s lawsuit to set aside the will of M. R. Diver, and it was perfectly proper for Frank to show how that litigation terminated. Plaintiff does not now show in what possible respect she was prejudiced by the introduction of judgment in that action. The judgment in this case is in no sense dependent on the evidentiary matter contained in that judgment, and were it wholly inadmissible it would not avail to disturb the judgment presently under review. {Giacomini v. Giacomini, 128 Kan. 699, 280 Pac. 916, syl. ¶ 3; Huycke v. Kramer, 133 Kan. 41, 298 Pac. 787, syl. ¶ 6.)
The next contention is that the decision was contrary to the evidence. We have briefly outlined above a small part of the evidence touching Frank R. Diver’s relationship to Joe Diver and Joe’s open and notorious acknowledgment of Frank as his son. We have also touched briefly part of the evidence touching plaintiff’s claim of relationship to Joe Diver. This court has nothing to do with the evidence further than to decide whether the trial court’s findings of fact, general or special, are supported by substantial and competent evidence. We have read the record with painstaking care, and have no hesitation in holding that the trial court’s finding in favor of Frank R. Diver was supported by evidence, and that feature of this appeal is foreclosed by precedents without number. In State, ex rel., v. Telephone Co., 115 Kan. 236, 269, 223 Pac. 771, Mr. Justice Marshall estimated that this court had decided “probably five hundred times” that where a finding of fact by jury, referee or trial court had the support of competent though disputed testimony this court would not disturb it. In Pittman Co. v. Hayes, 98 Kan. 273, 277, 157 Pac. 1193, the court pointed out how impossible it is for this court to weigh evidence which it must gather from the printed page, and how irregular it would be to substitute our judgment as to the ultimate facts for that of the trial court which gathers its facts from the lips of living witnesses.
“And thus it is that month by month and year by year, in this court and in other courts of appeal, the elementary rule has to be restated that the decision of the trial court on matters of fact based upon substantial though conflicting testimony cannot be disturbed.” (p. 277.)
See, also, Agricultural Ins. Co. v. Ætna Ins. Co., 119 Kan. 452, 457-459, 239 Pac. 974, and citations; Stanley v. Stanley, 131 Kan. 71, 239 Pac. 406, syl. ¶ 2, and citations; City of Fort Scott v. Brown, 133 Kan. 401, 300 Pac. 1093.
It is next urged that error was committed in overruling plaintiff’s amended and supplemental motion for a new trial. In support of this motion plaintiff produced certain affidavits, one of which was by a witness who deposed that plaintiff’s mother, Jennie Evans, lived with Joe Diver as his wife in the summer of 1897, and that there was an infant child in their home that Joe carried about the house and seemed very fond of. . This witness also deposed that Joe talked to her about the baby having been given in adoption, but that he and Jennie intended to get the baby back as soon as Jennie had better health. Another witness deposed that in 1896, when Jennie Evans was pregnant, he had seen her and Joe Diver coming into a restaurant to eat, and that Joe and Jennie lived together in Wichita after the baby (plaintiff) was born, that he had seen Joe and Jennie with a small child “which was a few months old.” This witness also deposed that in 1897, shortly after a baby had been born to Jennie Evans, Joe invited the witness and six or seven friends to drink with him, saying the drinks were on him and his baby girl. There were other affidavits of the same general tenor, and which to some extent amplified the unimportant fact adduced at-the trial touching the irregular connection between Joe Diver and Jennie Evans which sprang up after plaintiff was given in adoption to Mr. and Mrs. Holmes. A reperusal of the testimony of Mrs. Holmes, plaintiff’s adoptive mother, set out above, will show that if credence was given to her testimony the facts narrated in these affidavits were necessarily disbelieved. That was apparently the trial court’s conclusion when in overruling the motion for a new trial the court said:
“Regardless of the newly discovered feature of the evidence, the court, I think, should take into consideration the plausibility of it, and taking all these matters into consideration, I do not believe that a new trial would result in any different judgment, even if the testimony as generally outlined in the affidavits were produced.”
This court has often said that it has no means of constraining a trial court to give credence to evidence whose truth does not commend itself to its judgment, and we discern nothing about the belated evidence in support of a new trial to justify the invention of such a specific in the case at bar. Moreover, the showing of diligence to produce this newly discovered evidence was not at all persuasive. It is suggested that it was discovered and brought to light because of the publicity of the trial itself. But the trial court doubtless took into consideration the fact that publicity of matters and claims pertaining to the Diver estate was stale news in Wichita when this cause was tried, since the Wilhite case and the case to set aside M. R. Diver's will had preceded this case.
A final suggestion is made in the brief of plaintiff’s counsel. They express the “hope that this court is painfully conscious of the unsatisfactory state of the proof with regard to the identification of the father of Frank Diver.” It is also suggested that if'permitted plaintiff's counsel will produce new evidence to this court (not yet revealed to the trial court) to show that Frank was not the son of Joseph R. Diver. There are several answers to that suggestion. One is that it would be a useless labor so far as plaintiff is concerned, for the issue has been squarely raised and squarely determined in this action that plaintiff is not the openly and notoriously acknowledged daughter of Joe Diver, so she has no concern with the Diver estate. Moreover, this court is not trying this case. It is reviewing the errors alleged to have been committed by the court which did try this case. We do not receive and consider testimony in appealed cases which was not submitted to the trial court. (Wideman v. Faivre, 100 Kan. 102, 107, 108, 163 Pac. 619; State Bank v. Gonder, 132 Kan. 636, 639, 640, 296 Pac. 338.)
The industry and zeal of plaintiff have suggested some other matters for our consideration, none of which are of controlling significance, and scarcely within the proper scope of an appellate review, and we would not be justified in taking further time and space to discuss them. There is no error in the record and nothing appears therein to raise any misgiving that justice may have miscarried.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover money on an alleged contract to harvest and thresh wheat and to enforce a thresherman’s lien.
The petition alleged a contract between plaintiff and E. D. Mustoe, agent for Benjamin B. Foster, the owner of the wheat, for its harvesting and threshing at an agreed price. It also alleged the filing of a thresherman’s lien. It also alleged the sale of the wheat that was harvested and threshed to Fred Mosher and V. M. Harris. E. D. Mustoe and Benjamin B. Foster answered by way of a general denial and further alleged in their answer that they employed one A. M. Stephens to harvest and thresh the wheat; that said Stephens did harvest and thresh it and that settlement had been made for that work with Stephens.
Fred Mosher and V. M. Harris answered denying the allegations of the petition and admitting that they bought wheat from E. D. Mustoe, but stating that they did not know where this wheat was grown, and that it was purchased long before the filing of the lien, and that they did not know that plaintiff claimed any lien till the filing of this suit.
Motions of appellees Mosher and Harris for judgment on the pleadings were sustained on the ground that the petition did not allege any demand on them by plaintiff. This order is complained of in the brief of appellant, but it was not appealed and is not properly here for review. A similar motion on the part of E. D. Mustoe was sustained on the ground that he was only agent for Benjamin Foster.
Before the trial William Walker, Jr., died and the suit was revived in the name of William Walker, his executor. On the trial of the case a demurrer of defendant Foster to the evidence of plaintiff was sustained. From that order this appeal is taken. When the opening statement of appellee was made counsel stated that the contract sued on had been made between Mustoe and Stephens, but that Stephens with the knowledge of Mustoe had turned it over to Walker. In view of this, the burden of proof which appellant was compelled to sustain was that the contract had been made between Stephens and Mustoe and that it had been assigned to Walker by Stephens with the knowledge of Mustoe. There is evidence in the record from which it could be inferred that Walker sent men to operate a combine machine on the land owned by Foster, but there is a failure of proof that Mustoe, the agent of Foster, knew that these men were working under a contract between Mustoe and Stephens, which had been assigned to Walker.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
After the appeal in the above-named cause was argued and submitted, counsel for appellee filed a motion to dismiss on the ground that the appeal was not taken in time, and in consequence that this court had no jurisdiction to consider it.
Judgment was entered in the trial court on March 28, 1931, and notice of appeal was filed on June 22, 1931, which was.two months and twenty-four days after judgment.
The pertinent statute reads:
“Any society authorized to do business under the provisions of this article refusing or neglecting to make the reports provided in this code, or which shall exceed its powers, or shall conduct its business fraudulently, or which shall fail to pay any judgment rendered against it in any court in this state, there being no appeal pending, within sixty days of the rendition of such judgment, or which shall fail to comply with any of the provisions of this act, shall be excluded from doing business within this state. . . .” (R. S. 1931 Supp. 40-713.)
The section just quoted is part of the insurance code enacted in 1927. Prior thereto a similar provision of statute enacted in 1898 (R. S. 40-716) read:
“Any association authorized to do business under this act refusing or neglecting to make the reports provided for in this act, or which shall exceed its powers, or shall conduct its business fraudulently, ... or which shall fail to pay any judgment rendered against it in any court in this state, unappealed from, within sixty days from the rendition of such judgment, or which shall fail to comply with any of the provisions of this act, shall be excluded from doing business within this state.” .
The only change in this statute made by the insurance code, so far as here pertinent, is the substitution of the words “there being no appeal pending” for the words “unappealed from” in the earlier statute. Is this change in the statute so substantial as to permit of a new interpretation of its terms? Under the statute of 1898 certain consequences followed when a fraternal insurance association failed to pay any judgment unappealed from within sixty days after its rendition. Now the statute says those same consequences are to follow when such fraternal insurance society shall fail to pay any judgment, there being no appeal pending, within sixty days after its rendition.
Among the consequences which flowed from disregard of the duty to pay a judgment unappealed from within sixty days, according to the interpretation heretofore given, was a forfeiture of the defendant’s right of appeal. In other words, the sixty-day provision was construed to be a limitation as to the time in which an appeal could be taken. (Modern Woodmen v. Heath, 71 Kan. 148, 79 Pac. 1091; Daughters of Justice v. Swift, 73 Kan. 255, 84 Pac. 984; Hannon v. United Workmen, 99 Kan. 734, 163 Pac. 169.) ■
In resisting the motion to dismiss appellant argues that there is a sufficient difference between the present provision of the statute of 1927 (insurance code) and that of 1898 to warrant a different interpretation of the consequences flowing from failure to pay a judgment in sixty days when there is no appeal pending, and the consequences formerly resulting from failure to pay a judgment unappealed from in sixty days. We think the difference between the two statutes too shadowy to justify any difference in their interpretation. Appellant makes a better argument that the former decision is unsound and should not be followed. To assent to this, however, it would be necessary to overrule the three decisions cited above, in each of which the very point now made — that the statute does not literally declare that sixty days is the time limit for appeal — was stoutly argued and repeatedly considered by the court. Our last decision on this point was in 1917. The legislature has been content to let our ruling stand; and, indeed, when it was actually redrafting this very provision of statute it showed no disposition to specify another interval for appeals in this class of cases.
These considerations lead us to adhere to our precedents and to stand by the interpretation of the sixty-day provision the court has repeatedly made. It follows that appellee’s motion must be sustained, and the appeal is therefore dismissed. | [
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The opinion of the court was delivered by
Smith, J.:
This action was to recover an amount claimed to be due -the plaintiff for services in securing oil and gas leases. Judgment was for plaintiff. Defendant appeals.
The petition was in four causes of action. Only the first two concern us here.
The first cause of action was based on an alleged contract between appellant and appellee, whereby appellant was alleged to have agreed to pay appellee twenty-five cents an acre for obtaining oil and gas leases for him. The only dispute in the pleadings whs that appellee claimed that appellant agreed to pay him twenty-five cents an acre for aU leases he should obtain for him. Appellant answered that he only agreed to pay appellee for leases he secured for him which appellant was able to sell.
•• The error of which appellant complains on that cause of action is that there was a variance between the allegations of the petition and. the proof of„appellee. His foundation for that is that in the petition the contract alleged does not limit the territory in which the leases should b'e obtained, while in the testimony of appellee he limits it to Reno, northern Kingman and Sedgwick counties:
¡R. S. 60-753 provides as follows:
“No variance between the allegations, in a pleading, and the proof is to be deemed material, unless it have actually misled -the adverse party, to his prejudices, in maintaining his action or defense upon the merits. Whenever it is alleged that a party has been so misled, that fact must be proved to the satisfaction of the court, and it must also be shown in what respect he has been misled, and thereupon the court may order the pleading to be amended, upon such terms as may be just.”
The petition.in this case set out in an exhibit the exact leases for which appellee claimed he should be paid. Appellant knew just where the leases were which appellee was claiming pay for obtaining. He had ample time and opportunity to make any defense he could make. It does not appear that appellant could have been misled by the variance pointed out. The only defense alleged in his answer was the difference in the contract which has been pointed out heretofore. That issue was found against him by the jury.
Appellant urges that the court gave an erroneous instruction to the jury on the first cause of action. This argument is based on the claim made as to the variance between the pleading and proof. We have seen that this argument is not good.
Appellant makes the further contention that appellee in his cross-examination agreed with the statement of the contract as pleaded by appellant. We have examined the record and have concluded that the particular question and answer do not warrant such an interpretation.
The second cause of action pleads another contract Whereby appellant is alleged to have agreed to pay appellee for obtaining oil and gas leases for him. That paragraph in the petition is as follows:
“That on or about the- day of April, 1929, plaintiff and the defendant entered into an oral agreement whereby the plaintiff was to procure for and in the name of the defendant oil and gas leases covering land in the Mid- Continent field, which would be paid for by the said defendant, and that for his services in procuring said leases the plaintiff was to receive an amount of money equal to forty (40%) per cent of the sale price less the purchase cost of said leases and the abstract expenses. That immediately after entering into said oral agreement the- said plaintiff did proceed to procure for and in the name of the said defendant certain oil and gas leases and royalties in Cowley, Harvey, Sumner, Sedgwick, Kingman and Barber counties in the state of Kansas. A list of which leases is hereto attached marked ‘Exhibit B’ and made a part of this action.” ' ■
The allegation in the answer with reference to this was -as follows:
“That on or about the-day of- 1929, this defendant did employ the plaintiff to procure oil and gas leases and royalties in- such section of the Mid-Continent field as this defendant should desire, and; did. agree to pay said plaintiff as full compensation for his services forty per cent (40%) of the net profit derived from the:sale of such leases as were-té'ásed' entirely by said plaintiff, but said plaintiff was to receive a commission on any and all leases secured by him for this defendant and which this defendant specifically designated the said pl&mtóff should obtain.”
It will be noted that the only substantial difference pleaded is that appellee claimed that he was to be paid for any leases that he obtained, while appellant claimed that appellee was only to obtain such leases as appellant should designate.
The first error complained of in this cause of action is one of the instructions of the court. It is as follows: .
“The number of leases obtained and the amount to be paid therefor is all agreed to, the agreement being that the plaintiff was to be paid 40 per cent profit. The leases purchased and sold and the profits are agreed to, and if the plaintiff’s contention be true he would be entitled to a balance due on this cause of action of $971.69.”
Appellant urges that this instruction is not correct because it states that the parties had agreed, when as a matter of fact they had not. The fact is, however, that in the next paragraph of the instruction the court deals with the disputed questions in this cause of action.
In this cause of action, as in the one heretofore discussed, each lease was set out in- an exhibit attached to the petition and the amount claimed was set out in detail. Here, also, we must observe that the only defense to this cause of action alleged in the answer was decided in favor of appellee by the jury. Appellant urges that there are such discrepancies between the petition and the proof as to require a reversal of this casé. We have examined the record in this respect and are unable to find where the appellant was prejudiced.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action brought by the administrator of a deceased owner of a stock of merchandise in the town of Belle Plaine to recover for the loss thereof by fire on a policy issued thereon to him by the defendant insurance company.
The answer of the defendant admitted the issuance of the policy and the occurrence of the fire, but alleged that the fire was caused by the owner, H. E. White, voluntarily, maliciously and intentionally setting it out to damage and partially destroy the goods for the purpose of cheating and defrauding the defendant, and to recover the value thereof from the defendant insurance company. The reply was a general denial and a waiver of any claim under the policy beyond $2,995, interest, costs and reasonable attorney fee.
The jury rendered a verdict for plaintiff and answered a special question stating that the owner did not 'set fire to the property. Judgment was rendered thereon and the defendant appeals, urging error of the trial court in two particulars, viz., that the verdict and special finding are contrary to the evidence and in giving instruction number ten concerning the presumption of innocence.
The evidence shows that the owner committed suicide in a room over the main storeroom, during or about the time of the fire, by shooting himself. There was no controversy about the amount of the loss, proof of loss, appointment and authority of administrator and the demand for payment. The theory of the defendant is that the owner set out the fire in three places in the store, near the cash register along the west wall, near the southwest corner of the main storeroom and near the head of the stairs next to the rack of window shades, and that paint cans were opened and placed at two of these places. There was evidence of the embarrassing financial condition of the owner and his nervous attitude a few hours before the fire. About 1 o’clock in the night the deceased met the city marshal while it was raining very hard and told the marshal he had a leaky roof over the store and he was going down to see if it might be leaking through. He asked the marshal when he went off duty in the morning and was told between 5:30 and 6. He went into the bakery and got a cup of coffee, telling in there about his leaky roof. The night marshal and an employee of the bakery passed the store about 5:30 and saw no indications of fire, and the usual electric light or lights were burning. The fire was discovered about 5:40, or ten minutes after the marshal passed. It was not raining then, as the storm had ceased about 4 o’clock. Some of the books near the cash register were considerably burned and the safe door was closed but not locked. From this and other undisputed evidence in connection with the evidence about which there is some conflict, thé appellant insists that the general verdict and the special finding of the jury are contrary to the evidence and that the trial court should have set aside the verdict and finding and granted the defendant a new trial, reasoning that it was a pure case of arson and that upon the discov ery of the fire before the conflagration was fully under way and fearing detection of his acts the assured owner took his own life. Appellant further urges that the theory of the appellee, which was accepted by the jury, was based upon mere conjecture and not upon substantial facts.
The theory of the plaintiff is that the fire originated in the woodwork above the metal ceiling and was caused by a “short” in the electric wire, brought about by lightning which also burned the telephone wires in two, destroyed the telephone instrument, and that the fire so caused had been developing for some time in the woodwork above the ceiling and was therefore not observed by the witnesses passing the store building between 5:30 and 5:40 a. m.
The evidence showed there had been a very severe thunder storm and pretty sharp lightning during the night and continuing until 3 or 4 a. m.; that the telephone wire in the building had been burned through in five places, where it entered the metal ceiling. The receiver cap was blown off. The telephone wires did not have a lightning arrester on this line. The wire was grounded to the cold-water pipes in the building. The electric light for the building was furnished by four or five drop lights from metal ceiling. It was all open wiring through the building. The knobs were tarnished, the fuse box was “blowed” and the brass ends were loose.
There was evidence showing that immediately after the discovery of the fire the main fire was in the southwest corner of the storeroom; that it appeared to be sweeping across the upper comer of the west wall; that the metal ceiling was red hot; some of it was hanging down; that the fire could be seen up under the ceiling; that the main part of the fire seemed to be in the joists above the middle ceiling along the west wall; that the window frame in the southwest corner was burned more at the top than the bottom; that goods on the upper shelf near the southwest corner were burned apparently from the top; that after the fire it was observed that several two-by-twelve joists in the rear of the storeroom were nearly burned through; that the fire near the cash register was comparatively slight and upstairs at the window-shade rack the worst burning seemed to be at the upper part rather than the lower; that there was a slanting roof over the back part of the storeroom to the ceiling of the second story over the stairway and window-shade rack.
The deceased was said to have been timid about fires, that there was nothing unusual about his actions at home the evening before and that he had three years before the fire reduced the size of the policy on his stock of goods.
There was a conflict in the evidence as to some of the matters here enumerated, but the jury gave credence to the theory -of the fire being caused by lightning rather than by arson and the trial court concurred, so that our sole and only duty is to determine if there was sufficient evidence to support such finding, and we think there was.
The lightning theory does not seem to us to be mere conjecture or surmise, as urged by appellant, but many of the features in support of it appear to be supported by cold facts that are not easily otherwise explained. Of course, the conclusion reached must not be based upon conjecture or surmise, but the facts of there being sharp lightning about two hours before the discovery of the fire, the blowing off of the telephone receiver cap, the burning in two of the telephone wire in several places, the red hot metal ceiling and the deeply burned joists as found immediately after the discovery of the fire, seem to be substantial and reasonable features sustaining the lightning theory, even against the unexplainable conduct of the deceased owner.
Appellant assigns error in the giving of the instruction on the presumption of innocence without qualifying it with an instruction that it was a legal presumption only and disappears where there is evidence that the assured did willfully set fire to the goods. The appellant cites some very eminent authority in support of its contention, among which is 5 Wigmore on Evidence, 2d ed., sections 2491 and 2511, and in a note to the latter section, the case of State v. Wolfley, 75 Kan. 406, 89 Pac. 1046, and on rehearing, 75 Kan. 413, 93 Pac. 337, is cited as following a slightly modified rule in harmony with some other courts. Also the very recent case of Frankel v. New York Life Ins. Co., 51 F. 2d 933, is cited by appellant, but two distinct points of difference exist between that case and the one at bar. There the question was between suicide and accidental death. When substantial evidence of suicide was introduced the presumption of innocence very properly disappeared; and again, in that case, the plaintiff assumed the burden of proof, and, as it was there held, thereby waived certain errors, as stated in the opinion. If the evidence concerning the arson charged had been established with certainty, like the suicide in this case, there would have been no place for a presumption.
In the case of Von Crome v. Travelers’ Ins. Co., 11 F. 2d 350, cited by the appellant, the distinction is made in a few well-chosen words, as follows:
“Touching the contention of plaintiff that it was here and always is the duty of the court to charge the jury that a presumption of law existed against the fact of suicide, it is enough to say of the contention that this is sometimes true and sometimes not true. ... In this particular case, since there was evidence, from what the insured said as to his intent to kill himself, and from the circumstances, evidence that he had killed himself, the presumption against suicide as a matter of law disappeared from the case. There was no longer any reason to invoke any presumption of law about the matter.” (p. 352.)
Two Kansas cases cited by appellant, State, ex rel., v. Creager, 97 Kan. 334, 155 Pac. 29, and State, ex rel., v. Woods, 102 Kan. 499, 170 Pac. 986, are only in support of the' contention of the appellant upon the theory that the defendant had established the arson in this case. In both of them it is held that the presumption exists and continues “until the contrary is established.”
In the case of O’Brien v. Insurance Co., 109 Kan. 138, 197 Pac. 110, the late Justice Mason clearly expressed the rule in this state, as follows:
“The existence of a presumption against suicide on the part of a sane person is generally recognized. (22 C. J. 95; 1 Ene. L. & P. 419.) The defendant, however, regards the language-'quoted as likely to have misled the jury by causing them to believe that the presumption against suicide should control unless the evidence proved the contrary beyond all doubt. We do not think that it is fairly open to that construction, or that there is any reasonable likelihood that it was so interpreted by the jury. The word presumption is sometimes used as a procedural term, allied to the burden of proof. The so-called presumption against suicide in such a case as the present, where the issue must be determined from circumstantial evidence — by the balancing of probabilities arising from the established facts — is perhaps better described as an inference to be drawn from the universally recognized fact that the instinctive love of life is strong in the normal person. It is a matter to be considered with others in arriving at the most probable solution to a question which cannot be determined with absolute certainty.” (p. 144.)
In the case of Mutual Life Ins. Co. v. Wiswell, 56 Kan. 765, 44 Pac. 996, it was said—
“Where the evidence as to the death being accidental or suicidal is so nearly balanced as to leave the question in doubt, the presumption is in favor of the theory of accidental death.” (Syl. II2. See, also, National Bank v. Assurance Co., 33 Ore. 43.)
The instruction in this case was almost literally the same as that in the Oregon case, and substantially the same as that approved in the O’Brien case. This instruction must, as in all other cases, be construed in connection with all the other instructions given and in particular in this case with the one preceding it, which fully informed the jury as to a preponderance of the evidence as applicable in the case on trial, carefully distinguishing between that and proof of issues beyond a reasonable doubt, where crimes are otherwise involved.
We think the instruction given on presumption of innocence is well within the rule outlined in the Kansas cases above cited, and within the distinction indicated in the cases above cited from other jurisdictions, and the giving of it was not error.
The judgment is affirmed. | [
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The opinion of the court was délivered by
Sloan, J.:
This is an action for a writ of habeas corpus. The trial court granted the writ, and the sheriff appeals.
The facts are as follows: On the 14th day .of February, 1930, the defendant was arrested by the sheriff of Woodson county on a warrant issued by George Withers, a justice of the peace of the city of Yates Center, Woodson county. The defendant was charged with three counts: First, that on the 13th day of February, 1930, in the county of Woodson and state of Kansas, he then and there unlawfully had in his possession intoxicating liquors. Second, that on the same date in the county of Woodson he unlawfully transported from place to place in Woodson county intoxicating liquors. Third, that on the same date he did then and there in the county of Woodson use an automobile as a common nuisance for the transportation of intoxicating liquors. He was brought before the justice of the peace and advised that he was entitled to a trial and the benefit of counsel, which he refused. The complaint was read to him and he entered a plea of guilty to the first and second counts, and was sentenced upon each count to pay a fine of $200 and ninety days in the county jail. A commitment was issued and he was committed to the county jail of Woodson county, where he remained until the 29th of May, 1930. He caused a transcript of the proceedings in the justice court to be filed in the district court and made an application for a parole, and the court, on the 29th day of May, 1930, granted a parole under certain conditions. He remained at large until the 30th of March, 1931, when the court revoked the parole and ordered the defendant committed to the county jail to finish his sentence. On the same day he filed a petition in the district court for a writ of habeas corpus, alleging that the justice court in which he was originally convicted was without jurisdiction to try him "for the reason that the crime, if committed, was in Greenwood county, and not in Woodson county. The trial court found as a fact that the offense charged in the complaint was not committed in Woodson county, and issued the writ ordering the appellee discharged.
■ The question for review is whether the justice of the peace had jurisdiction of the cause, and whether the judgment can be attacked collaterally when the only question involved is the venue of the offense.
It may be stated at the outset that in a proceeding in habeas corpus this court will inquire only into the jurisdiction of the court under whose process the defendant is held. If the court had jurisdiction of the subject matter and the person of the defendant this court will not in a habeas corpus proceeding review the judgment of the trial court. Jurisdiction of the subject matter, that is, the offense, is derived from the law and it is well settled that the failure to object to the jurisdiction of an inferior court over the subject matter before going to trial is not a waiver of the right to object later. (In re Hollis, 124 Kan. 345, 259 Pac. 793; 8 R. C. L. 96.) The office of the justice of the peace is created by constitution with such powers and duties as shall be prescribed by law. (Const., art. 3, § 9.) The statute provides that the justice of the peace shall have concurrent original jurisdiction with the district court, coextensive with their respective counties, in all cases of misdemeanor in which the fine cannot exceed $500 and the imprisonment cannot exceed one year. (R. S. 63-101.) The legislature prescribed a procedure under which the justice of the peace may exercise the power granted by the statute. (R. S. 63-201 et seq.) The judgments of a justice of the peace acting within the jurisdiction conferred by law are as conclusive and rest upon the same basis as the adjudication of any other court. No mere errors and irregularities in the proceeding or in the judgment and sentences will render the judgment void and vulnerable to collateral attack on habeas corpus.
In In re Wallace, 75 Kan. 432, 89 Pac. 687, this court said:
“Where the jurisdiction of the court depends upon a fact which the court is required to ascertain and decide its judgment determining that the fact does exist is conclusive evidence of jurisdiction until set aside or reversed by a direct proceeding.” (Syl. If 1.)
The court had jurisdiction of the person of the appellee. He was arrested by the sheriff in Greenwood county and taken to Woodson county, where he was regularly charged with the commission of an offense in Woodson county. The fact that he was taken to Woodson county by force and without a warrant does not affect the jurisdiction of the court in Woodson county to try him for an offense committed in that county. '(State v. May, 57 Kan. 428, 46 Pac. 709.) The procedure prescribed for the justice of the peace, .which includes the power to accept a plea of guilty, appears to have been regularly complied with in all respects. The complaint charged him with committing the offense of having intoxicating liquors unlawfully in his possession in Woodson county. It was necessary that the complaint allege the venue of the crime as well as the statutory elements of the crime. These were all material allegations. The complaint was read to the appellee. He refused the advice of counsel and entered a plea of guilty. This was a confession of the truth of every material allegation in the complaint and evidence of the highest order, and the appellee is as conclusively bound thereby as if the evidence had been produced in court, submitted to a jury and it had found him guilty. (Ex Parte Dawson, 35 L. R. A., n. s., 1146.)
It is contended by the appellee that the court did not have jurisdiction of the subject matter. Can this contention be sustained? The subject matter of a criminal offense is the crime itself.
“Subject matter in its broadest sense means the cause; the object; the thing in dispute. But in a legal sense the subject matter of a suit, when reference is made to matters of jurisdiction, means the nature of the cause of action and the relief sought. The authority of the court to take jurisdiction of the subject matter is derived from an express grant by the sovereign state in the constitution and laws made in pursuance of it, and, like any other agent acting under a power, a judicial tribunal is not warranted in going beyond the limits of the law of its creation fairly construed.” (7 R. C. L. 1051.)
In In re Bonner, 151 U. S. 242, 257, the court said:
“Prom a somewhat extended examination of the authorities we will venture to state some rule applicable to all of them, by which the jurisdiction as to any particular judgment of the court in such cases may be determined. It is plain that such court has jurisdiction to render a particular judgment only when the offense charged is within the class of offenses placed by the law under its jurisdiction; and when', in taking custody of the accused, and in its modes of procedure to the determination of the question of his guilt or innocence, and in rendering judgment, the court keeps within the limitations prescribed by law, customary or statutory. When the court goes out of these limitations, its action, to the extent of such excess, is void. Proceeding within these limitations, its action may be erroneous, but not void.”
It seems quite clear from these authorities that subject matter has to do with the class of crime. In other words, the statute confers express jurisdiction on a justice of the peace to try misdemeanor cases. One having intoxicating liquors in his possession is guilty of a misdemeanor. Hence the justice of the peace has jurisdiction of the subject matter. If the defendant had been charged with a felony the justice would not have had jurisdiction of the subject matter, and any attempt on his part to try the case or impose a penalty would have been absolutely void. The venue of the crime is not part of the subject matter. It is a jurisdictional fact which the court must determine, and when determined it is conclusive and binding unless appealed from.
In 1 Bailey on Habeas Corpus, § 34, it is said:-
“Henee if there is a question raised as to whether the crime charged was committed within the territorial limits of the jurisdiction of the court, and that question is submitted to the jury, who find that it was so committed within such jurisdiction, their finding cannot be impeached by showing that the crime was committed without such jurisdiction.”
In 3 Freeman on Judgments, § 1552, it is said:
“Thus if an indictment charges that an offense was committed within certain territorial limits, over which the court has jurisdiction, whether the offense was so committed is one of the questions to be submitted to the jury, and by them determined, and after they have decided this question by pronouncing their verdict of guilty as charged, the defendant cannot relitigate this issue on habeas corpus.”
In In re Herman, 79 Wash. 149, the court said:
“Habeas corpus does not lie to release prisoners on the ground that the information on which they were arrested shows want of jurisdiction in the state court over the offense because the crime was committed by Indians in the Indian country; the question of jurisdiction being a matter for that court to determine, with the right of appeal therefrom.” (Syl.)
In United States v. Lair, 195 Fed. 47, the court said:
“An erroneous determination by a federal district court that an offense was committed within that district does not make a judgment of conviction void, so as to authorize another district court to discharge the accused upon habeas corpus; accused’s remedy being a writ of error from the conviction.” (Syl. H 5.)
Other authorities to the same effect are 29 C. J. 39; King v. State, 16 Ala. App. 341; Higginbotham v. State, 101 So. 166. Thus from the standpoint of authority and reason it is clear that venue is no part of'the subject matter of a criminal action, and that it is a question of fact which the trial court must determine and when determined, like any other fact, it is conclusive and binding on the defendant unless appealed from. This rule we think is in harmony with the decisions of this court and it necessarily follows that the conclusions reached by the trial court were erroneous.
The judgment of the trial court is reversed, and it is directed to deny the writ and dismiss the case. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an appeal from a judgment which made a division of property between litigants who had been divorced.
Plaintiff and defendant were married in 1895. During the greater part of their married life they had resided on various farms in Nebraska, Oklahoma, Kansas and Missouri. In 1914 they quit farming and purchased a residence in Sabetha. They reared a family of 'five children, and separated in 1923. --
■On April 29, 1930, defendant filed a suit against plaintiff for divorce in Jackson county, Missouri. About á wéek later, May 7, 1930, plaintiff filed this action in the district court of Nemaha county. In it she asked for a divorce and for a decree that the Nemaha residence and a 240-acre farm in Greenwood'county standing in the names of both parties be adjudged to be hers on the ground that they had been acquired with funds which she had received from her parents’ estates.
Defendant answered with a general denial and alleged that the Missouri action for a divorce had proceeded to judgment on July 7, 1930, and that these litigants were no longer husband and wife. He also alleged that the real estate involved in the present action had been accumulated by the joint earnings of plaintiff and defendant and from their separate inheritances. He prayed judgment for an interest in the realty.
Plaintiff’s reply was a general denial. The cause was tried by the court, which made informal findings of fact. In part these read:
“That plaintiff and defendant have heretofore and on the 7th day of July, 1930, been duly divorced in the circuit court of Jackson county, Missouri.'
“That plaintiff and defendant were married on or about the 2d day of October, 1895; that both plaintiff and defendant since their said marriage have received separate inheritances. . . .
“The court does further find that much of said property has been made and accumulated by the joint and mutual efforts of plaintiff and defendant during their married life, and that said property should be divided between plaintiff and defendant by the court herein.
“The court does further find from the evidence that the improvements on said Greenwood county property are located on the eighty acres above described, and that the one hundred and sixty acres above described is unimproved, and that said described eighty acres and said described one hundred and sixty acres are practically of equal value.”
The court further found that there was a mortgage for $3,500 on the Greenwood county property and adjudged that plaintiff and defendant should each pay off and discharge one-half of that indebtedness, and directed counsel for the parties to make proper arrangements to that end.
Judgment was given accordingly — that plaintiff should have the Sabetha property and the eighty acres in Greenwood county which contained the farm improvements, and that defendant should have separately decreed to him the quarter section in Greenwood county which was not improved.
• Plaintiff appeals, urging certain errors, the first of which was that the case was decided upon other issues than those made by the pleadings. She contends that the only matter raised by the pleadings was one of property rights, and that the court dealt with it “as an alimony proposition and dependent upon marital rights.” We discern no question of alimony in the pleadings, the evidence, or the judgment. Defendant’s answer denied that the properties were acquired exclusively with inheritance moneys of plaintiff. That denial joined an issue for determination. Defendant in' his answer also alleged that the properties were acquired by the joint earnings of plaintiff and defendant and from inheritance moneys of both litigants. Plaintiff’s reply denied those allegations. That denial joined another issue for determination. The court had these controverted issues before it, and evidence pro and con was adduced thereon. It is therefore obvious that the error assigned on the point that the court decided the case on any issue not raised by the pleadings cannot be sustained.
The next complaint is that the trial court declined to hear all the pertinent testimony offered. The excluded testimony was put in the form of an affidavit by plaintiff and offered in support of the motion for a new trial. We have read it. In part it went into greater detail touching the moneys she had received from her parents’ estates, and what investments in real estate the parties had made therewith. But that evidence was merely cumulative to what the testimony at the trial had already shown, and error can seldom be successfully predicated on the rejection of merely cumulative evidence. (Pasho v. Blitz, 99 Kan. 421, 162 Pac. 1161; Biernacki v. Ratzlaff, 102 Kan. 573, 575, 171 Pac. 672.) In other respects plaintiff’s rejected testimony would have shown that defendant was improvident and had spent his money on other women. The trial court ruled out that testimony in an opinion which reads:
“The Court : I am just wondering how much it is going to help the court. There is a divorce already granted between them and the record is as it is and I cannot change it — the divorce was granted on her fault.
“. . . It may be that he has spent money in some ways that he might not have spent it. A lot of people do that and they are pretty good people, as far as we can tell. He did not get along with his wife and left her but he might have gotten along if he had tried and there might have been another woman that had something to do with it. It is pretty hard to say. They may have had their trouble long before this other woman came into the case, if she did. Anyway, this is a property matter right as it stands now. Unless the need of the family was very great, it is pretty poor policy of a court to strip a man of everything he has, unless it is a very clear case. I do not know as it would help any to hear more evidence along this line.”
These observations contained good law and good sense. What ever marital delinquencies on the part of either or both these litigants may have existed, they were either aired or waived and finally adjudicated in the Missouri judgment, and the trial court’s ruling on this point was correct.
On the error assigned in the overruling of plaintiff’s motion for a new trial, we discern nothing to discuss.
On the final error assigned — that there was no evidence to support the finding and decree of the trial court — it seems to us that defendant’s testimony, to which the trial court gave credence, .fairly showed that defendant’s efforts had contributed very substantially to the accumulation of the real-estate holdings of these litigants, particularly his acquisition of the Oklahoma homestead and the enhancement in value of the additional quarter section of Oklahoma land which had been purchased for $1,800. The homestead was improved with the proceeds of crops raised by defendant, and eventually it and the adjoining quarter section purchased for $1,800 were sold for $7,600, and about $6,000 of that amount went into the purchase of the Greenwood county land.
When a division of family property has to be made following a dissolution of the marriage relation, such division must be manifestly inequitable before this court would be justified in disturbing it. (Corbett v. Corbett, 101 Kan. 1,165 Pac. 185.) Nothing of this kind is discernible in the present case. Neither litigant herein raises any of the perplexing questions which sometimes arise when adjudication of marital property rights is not made in the same judgment as that in which the divorce is decreed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to replevin forty-nine slot machines. Judgment was for defendants. Plaintiff appeals.
The petition alleged that plaintiff was a resident of Wichita and defendants were police officers of Wichita; that on December 31, 1938, plaintiff was the owner of forty-nine slot machines, describing them; that these machines had not been used, were not intended for use, and would not have been used in Wichita, in Sedgwick county, or within the state of Kansas, and were merely stored in the basement of plaintiff’s home, and that two of the defendants came upon the premises of plaintiff and took possession of all the machines, removed them or had them in their possession, and refused to deliver them to plaintiff upon demand; that plaintiff had filed his affidavit in replevin and an undertaking as required by the statutes.
The prayer was for a return of the machines or for a judgment against defendants for $4,900.
The answer was first a general denial. The answer then admitted the official capacity of defendants; that plaintiff was one of the owners of forty-nine slot machines and that the machines were in the possession of defendants as police officers of Wichita. The answer then denied that plaintiff was entitled to possession of the ma chines, but alleged that they were held by the defendants as police officers of the city of Wichita for the reason that on the 9th day of January, 1939, plaintiff was found guilty of possession of these machines in the police court of Wichita, and as part of the judgment assessed against plaintiff in that case the police judge ordered the destruction of the machines in compliance with section 34 of ordinance No. 11-592 of the city of Wichita; that defendants had not destroyed the machines because plaintiff had appealed his case to the district court, where it was pending; that defendants were holding the machines for the purpose of destroying them if the judgment should be upheld, and as evidence in the case; and defendants were rightfully in possession of the machines under ordinance No. 11-592.
In the reply plaintiff alleged that ordinance No. 11-592, section 34, was unconstitutional, illegal, and void, as being in contravention of the constitution and bill of rights of the United States and of the state of Kansas.
The plaintiff prayed for judgment.
The journal entry recited that at the hearing defendants waived any defense raised by that portion of their answer wherein they claimed to be holding the machines as evidence so as .to submit the question to the court on the motion of plaintiff on the question of the validity of the ordinances. The trial court overruled the motion of plaintiff for judgment on the pleadings and gave judgment for the defendants. Plaintiff appeals from this judgment.
The ordinances in question are as follows:
“Section 3. Punch Boards and Slot Machines. Any person who shall set up or keep or have in his possession in any public or private place in the city of Wichita any ‘punch board’ or ‘slot machine’ or other gambling device, devised or designed for the purpose of playing any game of chance for money or property, including ‘punch boards,’ ‘slot machines’ or any other gambling device wherein money or goods are received with every punch board, but the amount to be paid depends upon the number punched, played or drawn, or where a capital prize or any additional prize may be received or where tokens are received, or any person who shall induce, entice or permit any person to bet or wager or pay money upon any such ‘punch board,’ ‘slot machine’ or any bther gambling device or devices as above described, shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine not less than one hundred dollars ($100) nor more than three hundred dollars ($300) or by imprisonment in the city jail for not less than thirty days nor more than one year, or by both such fine and imprisonment.”
“Section 34. Confiscation of Gambling Devices. Upon conviction of any person or persons under the provisions of the immediately foregoing sections 3, 4 and 6, the police judge shall, as a part of his judgment, order the destruc tion of all such ‘punch boards,’ ‘slot machines’ or other gambling devices or material used by or in the possession of the defendant, and the chief of police of the city of Wichita shall execute such judgment by publicly destroying or causing to be destroyed such ‘punch boards,’ ‘slot machines’ or other gambling device or equipment by burning or otherwise, which destruction shall take place after said devices are no longer needed as evidence.”
It will be noted that section 3 makes it a violation to have “in his possession in any . . . private place . . . any slot machine . . . designed for the purpose of playing any game of chance,” and provides that this misdemeanor shall be punishable by a fine or imprisonment or both, while section 34 provides in addition to the fine and imprisonment that upon the conviction of any person for a violation of section 3 the police judge shall as a part of his judgment order the destruction of such slot machine.
The plaintiff first argues that the ordinance is invalid because the city had no statutory authority to enact an ordinance prohibiting mere possession of a slot machine. Plaintiff first cites the case of Smith v. Hosford, 106 Kan. 363, 187 Pac. 685, where this court held:
“A municipal eorpoi'ation has no inherent power to enact police regulations, but such authority must be expressly granted or clearly implied.” (Syl. ¶ 1.)
Plaintiff reférs to G. S. 1935, 13-401, 13-423, 13-424, 13-430; also, G. S. 1935, 21-922, 21-918 and 21-915, all being statutes conferring authority on cities to enact ordinances with reference to gambling devices and general police power, and argues that since these statutes do not by express terms confer on cities the authority to make possession of a slot machine a crime, the cities do not have such authority.
This general subject has received the attention of this court heretofore.
G. S. 1935, 13-401, provides as follows:
“The' governing body shall have the care, management and control of the city and its property and finances; and shall have power to enact ordinances for all the purposes named and provided for in this article not repugnant to the constitution and laws of this state, and to alter, amend, modify and repeal such ordinances.”
One of the purposes mentioned in section 13-401 is stated in G. S. 1935, 13-423. That section provides as follows:
“To make all needful police regulations necessary for the preservation of good order and the peace of the city, and to prevent injury to or the destruction of or interference with public or private property.”
Also, G. S. 1935,13-430. That section reads as follows:
“To prohibit and suppress ... to restrain, . . . games and gambling houses, . . . and to provide for the punishment thereof.”
It should be noted that the above statutes all confer authority on cities of the first class.
G. S. 1935, 21-922, confers authority on all cities, whether they be first, second or third class. That section provides as follows:
“Cities of the first, second and third class may provide by ordinance for the suppression of common nuisances as hereinbefore defined, and for the search of premises where such nuisances are kept or maintained, and for the seizure and destruction of all gaming tables, gambling devices and other property used or kept in maintaining such nuisances, and for the payment and collection of attorney’s fees in such cases.”
G. S'. 1935, 21-918, provides for the abatement of nuisances, and reads, in part, as follows:
“All places used for any of the unlawful purposes as mentioned in Laws 1895, chapter 151, section 1 [21-915], are hereby declared to be common nuisances, ...”
And further provides for the abatement of them as follows:
“. . . taking possession of all devices and all other property used in keeping and maintaining such nuisance, and such personal property so taken shall be forthwith publicly destroyed by such officer.”
G. S. 1935, 21-915, provides as follows:
“Every person who shall set up or keep any table or gambling device ... or any kind of gambling table or gambling device, ... or shall keep a place or room to be' used as a place for playing any game of cards for money or property, or keep a common gaming house, or keep a house, room or place to which persons are accustomed to resort for the purpose of gambling, shall on conviction be adjudged guilty of a felony, and punished by imprisonment and hard labor for a term not less than one year nor more than five years.”
Plaintiff argues that the general authority given cities of the first class in chapter 13 must yield to the specific authority given all cities in chapter 21 with reference to gambling. He then argues that these statutes confer authority to suppress nuisances, as defined therein, that all places used for any of the unlawful purposes mentioned in G. S. 1935, 21-915, are made nuisances and that G. S. 1935, 21-915, makes places where gambling devices are set up or kept nuisances; that the mere having of gambling devices in one’s possession is not setting them up or keeping them — hence, G. S. 1935, 21-922, does not confer authority on cities to make possession of gambling devices a nuisance.
Our question then is whether the city has authority to make an act a nuisance that is not made a nuisance by statute.
In City of Kansas City v. Grubel, 57 Kan. 436, 46 Pac. 714, the city ordinance provided that it should be unlawful to keep open a store after ten o’clock a. m. on Sunday. The statute forbids keeping a store open at all on Sunday. When the defendant was charged with a violation of the ordinance he contended it was bad because it ■did not go as far as the state statute. The court held that the ordinance was good, even though it did not go as far as the statute.
In Monroe v. City of Lawrence, 44 Kan. 607, 24 Pac. 1113, the city ordinance forbade the sale of cider in less quantities than a gallon. One charged with a violation of the ordinance argued that it was invalid because the legislature had not conferred on the city the power to enact such an ordinance. This court held that the authority to enact ordinances for the general welfare conveyed authority to enact the ordinance in question. This court said:
“The ordinance' under consideration is not repugnant to the constitution or laws of the state; and, as we have seen, the regulation of the same is neither unreasonable nor unjust. Every'statute, of the state shows the solicitude of the law to protect, the health and morals of the people, and preserve the peace and good order of the communities, and it is manifest that the legislature .intended that ample authority should be conferred either by express grant or by virtue of the general powers to carry out, this purpose. Instead of specifically defining every regulation which might be necessaiy to the health, ■safety, peace and convenience of the public, the legislature enacted the general-■welfare clause; and it seems to us that it furnishes sufficient authority for the council to pass an ordinance so clearly in the interest of peace, good order and health as the one in question.” (p. 610.)
In the case of Kansas City v. Henre, 96 Kan. 794, 153 Pac. 548, we have a situation where the statutes and the city ordinance had •operated in the same field. In that case the ordinance provided that no milk should be kept for sale that contained less than twelve percent of milk solids or less than three and one-fourth percent butterfat. A regulation of the state board of health, which had the force of a statute, provided that no milk should be offered for sale that contained less than eight and one-half percent of solids and less than three and one-fourth percent of butterfat. The penalty for a violation of this regulation was a $50 fine or six months imprisonment, or both; for violation of the ordinance not less than $10 fine nor more than $100, and for any subsequent offense a fine of not less than $50 nor more than $500. It will thus be seen that the standards set by the ordinance were higher than those set by the regulation, and the punishment was greater as to the fine that could be imposed. When Henre was charged with a violation of the ordinance he contended that it was invalid on the ground that it was in excess of the power granted to the city and that it conflicted with a state regulation on the same subject. This court held that the power of the city in respect to such matters was derived from the state and was only such as was clearly conferred by statute; that the legislature, among other powers, had given cities the authority to enact ordinances for the purpose of securing the public health of the city; and that the ordinance regulating the sale of milk came clearly within the power so conferred, and unless it conflicted with the statutes or constitution of the state it was valid. This court then said:
“It is well settled in this state that where power is conferred upon cities to enact ordinances for the preservation of peace and good order within the city or for the preservation of the health of its inhabitants it may be exercised although the legislature has provided state regulations on the same subject.” (p. 796.)
This court further said:
“An ordinance enacted in the exercise of the police power is not necessarily inconsistent with a state law on the same subject because the city provides for greater restrictions or makes higher standards than is provided or made by the statute. . . . Nor is an ordinance repugnant to a statute merely because the penalty prescribed is greater than is fixed by the statute for the commission of a like offense.” (p. 797.)
See, also, Walker v. Railway Co., 95 Kan. 702, 149 Pac. 677.
In Garden City v. Legg, 126 Kan. 569, 268 Pac. 827, an ordinance made drunkenness in any place, public or private, an offense. The statute (R. S. 1923, 21-2128) is, in part, as follows:
“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.”
It will be noted that this statute does not make it an offense tu be drunk in a private place unless the person charged was also disturbing the peace. The defendant was charged with being drunk in a private place. He contended that the ordinance was invalid because it was repugnant to the statute quoted above and exceeded the police power of the city. This court cited first the rule laid down in 43 C. J. 215 et seq., as follows:
“Since a municipal corporation is a creature of the state, continuing its- existence under the sovereign will and pleasure of the state, possessing such powers' and such only as the state confers upon it, subject to addition or diminution of power at the state’s supreme discretion, municipal regulations must not directly or indirectly contravene the general law, nor can such regulations be repugnant to the policy of the state as declared in general legislation. . . . Ordinances which assume directly or indirectly to permit acts or occupations which the state prohibits, or to prohibit acts permitted by the state, are uniformly declared to be null and void. . . . The question as-to whether or not a municipal ordinance or regulation is in conflict with the general law is sometimes difficult of solution, and cannot be determined by any fixed rule. Each particular case must be determined as it arises. Broadly speaking, the question whether a conflict exists depends upon whether the state has occupied the whole field of prohibitory legislation with respect to the subject. If such is the case it is held that a conflict exists. In order that there be a conflict between a state enactment and a municipal regulation both must contain either express or implied conditions which are inconsistent and irreconcilable with each other. Mere differences in detail do not render them conflicting. If either is silent where the other speaks there can be no conflict between them, Where no conflict exists, both laws stand. ... As a general rule, additional regulation to that of the state law does not constitute a conflict therewith.”
Applyiiig the rules laid down in these cases and in the above quotation we find, first, that it is the policy of this state to do everything possible to suppress gambling. This court will take judicial notice of the fact that gambling is permitted to flourish to a greater extent in the cities than elsewhere, and that the devices known-as slot machines are the most often used of any of the devices. They give the law enforcement officers more trouble because they can be moved readily, take no trouble to set up, and are easily used, and in most cases can be played with a nickel, so they are within the means of practically any of our people. " The fact that the legislature made places where gambling devices are set up nuisances did not prohibit the cities from going further and making their possession an offense. The statute just did not go as far as the ordinance did, that is all. The reasoning in the case of City of Kansas City v. Henre, supra, is in point here. As stated in 43 C. J., 215 et seq., supra, the question is whether the state has occupied the whole field of prohibitory legislation. Here it has not, because the legislature has never made possession of gambling devices an offense. Certainly, however, the legislature has never said that the city could not enact such an ordinance, nor has the legislature ever said it was lawful to have gambling devices in one’s possession. G. S. 1935, 13-423, confers authority on the city to enact the ordinance in question.
• The plaintiff next argues that even if bare possession can be made an offense the city cannot enforce such an ordinance by confiscating the devices. He points out that there is no express statute other than G. S. 1935, 21-922, which has already been considered, conferring power on cities to provide for the confiscation of gambling devices.
The city did not need express authority to provide for the confiscation of the machines. We have just seen that the city had authority to make the possession of the machines an offense. There was no lawful use to which they could be put in that city. While the possession of them might not be an offense in other cities, the moment anyone started using one of them he would be violating the law. The practice of operating these machines is well known. One man owns a number of them and leases these to people who are operating lunch counters, pool halls, cigar stores and like places. For a while they are permitted to operate unmolested, then the attention of the law enforcement officers is drawn to the fact that a number of slot machines are operating. A campaign is started against them, one or two are seized while in operation, and the rest are gathered up in about an hour, and taken out of circulation for a while. We do not say, of course, that the above happened here. What we do say is that it is the general practice, and the ordinance we are considering was designed to stop it. Slot machines are instruments by which the law is violated. They serve no lawful purpose. Every law enforcement officer’s hand is against them and no lawful right of the plaintiff will be violated when these machines are destroyed. This is the idea this court had in mind when in Monroe v. City of Lawrence, supra, we said, in speaking of the ordinance, that made it an offense to sell cider in less quantities than one gallon:
“The juice of apples quickly changes from fresh to hard cider, and hard cider is presumptively not only a fermented but an intoxicating liquor. (State v. Schaefer, ante, p. 90; same case, 24 Pac. Rep. 92.) It is difficult to show when the change occurs, and when it reaches such a stage as will produce intoxication. It may have been thought that the drinking of cider might foster a taste for strong liquors, and that if the unrestricted sale of cider by the glass was permitted, the officers might be easily deceived as to the character of the drinks sold, and that a tippling shop might be carried on under the guise of a place to sell cider. In the interest of the health of the people, and the peace and good order of the community, it was deemed wise to regulate the traffic. To sell it by the glass, and allow it to be drunk upon the premises where sold, was deemed to be subversive of good order, and dangerous to the health and morals of the people, and hence the city imposed a regulation that it should not be sold in less quantities than one gallon, and should not be drunk at the place of sale. Such a regulation violates no private right, and does not unreasonably or improperly restrain trade.” (p. 609.)
G. S. 1935,13-430, uses the word “suppress” as well as “prohibit,” when speaking of gambling. We know of no better way to suppress gambling than to destroy the instrumentalities by which gambling is carried on wherever they may be found.
. Plaintiff next argues that as applied to this case the ordinance is unreasonable. What has been said here is an answer to that argument.
There is a further reason why judgment in this action could not be for the plaintiff. The statute providing for replevin actions is G. S. 1935, 60-1002. That section provides, in part, as follows:
' “. . . That it was not taken in execution on any order or judgment against said plaintiff, or for the payment of any tax, fine or amercement assessed against him, or by virtue of an order of delivery issued under this article, or any other mesne or final process issued against said plaintiff.”
This statute was considered by this court in Karr v. Stahl, 75 Kan. 387, 89 Pac. 669. In that case the chief of police of Topeka had seized certain property under a warrant duly issued under the provisions of an ordinance which had been declared by this court in another action to be void. A replevin action was brought by the defendant in the action in police court to recover the property. The plaintiff in the replevin action argued that the ordinance being void, it conferred no rights, and the complaint, warrant and all proceedings had thereunder were without force or effect. This court referred to the statute just quoted, and quoted from the opinion of this court in Westenberger v. Wheaton, 8 Kan. 169, as follows:
“All these facts- must be sworn to exist before the order of delivery can be made; a fortiori they must exist as facts. But the clause does not confine the facts to a valid judgment. A valid judgment cannot be successfully contested in any way except by proceedings to set it aside. So that the object of this clause of the section is not solely to protect the process of the court when issued on a valid judgment. The object of the clause, as drawn from its language, and from other parts of the section, as well as from the history of the action known as replevin, is to compel a party who desires to contest the validity of any judgment or order of a court, or any tax, fine, or amercement, or any other mesne or final process, so to do in some other way than by seizing property already in the custody of the law. An order of attachment is most frequently issued by the clerk under the law. If improvidently issued, and property is seized, the remedy is not tolerated of taking it out of the possession of the law, and by such a proceeding trying the validity of the order, or writ. A safer and more reasonable remedy exists. . . . The wisdom of our code on this subject, as we construe it, is vindicated by the following observations, showing the utter confusion that would result from the code if the construction should be given to it claimed by the plaintiff in error: ‘If- a defendant in the execution, after judgment had been -legally entered against him upon a full and fair trial, were tolerated in bringing his action (of replevin, and by it to replevy the goods taken in execution, there might be no end to the delays which the defendant might thus create. Justice and the end of the law would be effectually subdued, for although the defendant in the execution and plaintiff in the action of replevin would fail upon the trial, and judgment would be rendered in favor of the officer for the restoration of the property, yet the action might be again and again renewed, and delay without end effected. To prevent such abuses, and such contempts of the authority of courts, to prevent the monstrous absurdity of rendering the remedies afforded by law with a view to redress wrongs, the means of defeating the vei'y end to be accomplished, the defendant in an execution, who should thus pervert the action of replevin, might and ought to be severely punished for contempt.’ ” (pp. 176, 178.)
This court then said, in Karr v. Stahl:
“The same reason urged against the use of the writ of replevin for the purpose of testing the validity of judgments or process when they are voidable only seems to apply where they are void. As illustrated by this case, the ordinance in question had been in force and' acted upon for a long time as valid. The writ in question was duly issued in appropriate proceedings had under the ordinance. The officer was bound either to obey the writ or review the proceedings of the mayor and council of the city who had enacted the ordinance and the action of the police court issuing the writ, and at his peril decide the legality of the ordinance for himself. Such a rule would leave the validity of writs open to question to such an extent as, in a large measure, to defeat the object of the statute. We think the orderly administration of the law will' be better subserved if full effect be given to the language of the statute, by holding that the words ‘any order or judgment, . . . any tax, fine or amercement ... or any other mesne or final process’ (Gen. Stat. 1901, sec. 4611) were used advisedly and in their ordinary meaning, and not in the limited sense which results from the interpolation of the word ‘valid’ after the word ‘any’ — an interpretation that would destroy the manifest intent of the law and materially weaken its efficacy. Ample remedy has been given for testing the validity of any law, process or judgment without recourse to an action of replevin.” (p. 389.)
The same argument as to why a writ of replevin should not be allowed is good in this case as it was in Karr v. Stahl, supra. All questions raised by the action in this case could be raised in the action in police court against .the plaintiff here. This action has been appealed to the district court and will eventually come on for trial, and if the defendant is convicted he may appeal to this court. Our beloved Chief Justice Johnston had a homely expression for ac tions of this type. He said: “It is not a good idea for this court to take two bites at a cherry.” That states the situation about as well as it can be stated. We are aware that all the parties in the court below wished the action tried and determined in that court on the question of the validity of the statute. We have decided that question in this case. We do not wish this action, however, to be taken as an approval of the practice of bringing replevin actions when the property sought to be recovered has been taken as this property was taken. The holding of the court in Allison v. Hern, 102 Kan. 48, 169 Pac. 187, is to the same effect as Karr v. Stahl, supra. (See, also, Greentree v. Wallace, 77 Kan. 149, 93 Pac. 598; also, Hines v Stahl, 79 Kan. 88, 99 Pac. 273.) A better consideration can be given the question involved when this court has a record before it which shows all the surrounding facts and circumstances.
The reason given by the trial court in this action for giving judgment to the defendants was not the one that has just been discussed. However, this court quite often affirms a judgment for a reason other than given by the trial court. (See Yehle v. Stamey-Tidd Const. Co., 150 Kan. 440, 94 P. 2d 328; also, In re Estate of Dennis, 146 Kan. 121, 68 P. 2d 1083.) The matter just discussed is an additional reason why the judgment of the trial court was correct.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hoch, J.:
This was an action to quiet title to real estate. The only issue was the ownership of an undivided interest in the mineral rights. The plaintiff prevailed, and defendants appeal.
Benjamin Toothman died testate, a resident of Greene county, Missouri, in November, 1916. His will was admitted to probate in Greene county on November 11, 1916. • Along with other property he owned a quarter section of land in Montgomery county, Kansas, which was left, by the will, to his widow and his nine children in equal parts. At the time of his death three of the children were minors. The executor was directed to sell the land, and on September 17, 1918, made a contract of sale with Christian Cohrs, of Independence, Kan., in which it was agreed that the mineral rights should be reserved. This contract was approved by the Missouri probate court, and on November 11, 1918, the seven adult heirs executed a warranty deed to Cohrs, in which the mineral rights were reserved to the grantors. The widow was appointed guardian of the three minors and filed her petition in the probate court of Greene county for authority to sell the interest of the minors in the land, reserving to them the mineral rights. On January 4, 1919, an order was made by that court in harmony with the petition. Thereafter the guardian employed an attorney at Independence, Kan., to prosecute proceedings in Montgomery County, Kansas, for the sale of the minors’ interest in the land in accordance with the order of the Missouri court. He filed application in the probate court of Montgomery county for the appointment of the mother as guardian of the minors’ property in the county, attaching thereto authenticated copies of the application in Missouri for letters of guardianship, of the order appointing the guardian, approving her bond and inventory, of the petition to sell and the order to sell the interest of the minors. The'petition described the land in question and the sole prayer was for appointment of the widow as guardian. The appointment was made on January 24, 1919, the court finding that the bond, which had been given in Missouri, was adequate. On January 30,1919, the guardian filed her petition to sell the three-tenths undivided interest of the minors, setting forth the reasons why such sale should be made, and asking that private sale be authorized. This petition made no reference to the proceedings previously had in Missouri nor to any desired reservation of the mineral rights. Thereafter, in none of the proceedings was there any reference to reservation of mineral rights. Notice of the hearing on the petition to sell the real estate was duly given, and in her proof of service the guardian — and mother — recited that personal service had been made upon the minors. Order to sell was duly entered on February 20, 1919, the order containing the usual recitals, including a finding that “said guardian has given notice of the time and place of hearing said petition as by law required and in conformity with the orders of the court heretofore made.” Appraisers were appointed, the guardian’s report was filed on March 4, 1919, reciting the appraisal and sale of the minors’ interest on March 3, 1919. Again, neither the report nor the appraisal made any reference to reservation of mineral rights. The sale was duly confirmed and a guardian’s deed executed to Christian Cohrs on March 8, 1919, for a consideration of $1,680. The deed purported to convey “all the rights, title and interest” of the minors, without reservation of any sort. The deed was recorded on March 15, 1919. By warranty deed Cohrs parted with the land on March 27, 1928, his deed making no reference to any reservation except to the reservation of mineral rights included in the deed given by the seven adult heirs, heretofore referred to. The appellee, Hattie H. Wilson, plaintiff below, holds title in succession to Cohrs.
• On March 15, 1938, the Toothman heirs executed an oil and gas lease to Elmer Beeler, purporting to cover all oil and gas interests in the land, and Beeler subsequently drilled and secured a gas producer on the land. On September 13, 1938, the plaintiff, undisputed owner of the surface rights, filed a petition to quiet title, making the Toothman heirs and the lessee defendants. Other parties were also made defendants, but for our purpose need not here be noted. She claimed an undivided three-tenths interest in the mineral rights, as successor in interest under the guardian’s deed. Answers were filed, denying that the plaintiff owned any interest in the mineral rights, and one of the defendants filed a cross petition as against one of the codefendants. Determination of the main issue will resolve the issue raised by the cross petition. Various motions were made by the plaintiff to strike certain parts from the answers and to make definite and certain, but need not be noted in detail, since the parties stipulated that the questions of law should be raised by demurrers to the answers. Such demurrers were filed and sustained, and the questions presented are indicated by the facts already stated.
The principal contentions of the appellants are that the probate court of Montgomery county, Kansas, was without power to disregard the provisions of the order of the probate court of Greene county, Missouri, relative to reservation of mineral rights; that its orders were void for want of legal notice to the minors of the hearing on the petition to sell their interest in the land; that the filing of the authenticated copies of the prior proceedings in Missouri constituted public notice and bound all parties thereafter dealing with the land; that the guardian was not duly appointed in Kansas because the record does not show that she took the oath prescribed by the statute; that the reservations of “all the mineral rights” in the deed executed by the seven adult heirs were valid and left no mineral rights to be conveyed by the minors; that the fact that the money paid by the purchaser was divided equally among the ten heirs constituted evidence and notice that all mineral rights had been reserved; that the reservation of mineral rights in the deed of the adults effected a severance of the surface rights and the mineral rights and that the plaintiff and her predecessors not having drilled for oil or gas or otherwise asserted ownership of the minerals, although in occupancy of the surface, could not claim adverse possession of any interest in the mineral rights and that therefore the statute of limitations had not run against them.
On all these propositions the appellee takes issue, and contends, first of all, that all claims of the appellants were barred by the statute of limitations.
The power of the Montgomery county court to appoint a guardian for the purpose of selling or otherwise controlling the interest of the nonresident minors in land located within that county is not questioned (G. S. 1935, 38-224, then in effect). Under proper application the mother was duly appointed. Having been so appointed, she was subject to the same jurisdiction of the Montgomery county court as though she had not previously been appointed a guardian in Missouri. Her application to sell the minors’ interest in the land contained no reference to any desired reservation of mineral rights. Nor, as heretofore noted, did any subsequent proceedings in the probate court of Montgomery county contain any reference to any such reservation. The guardian’s deed contained no reservations whatever, nor any provision incorporating by reference or otherwise the record of any proceedings previously had in Missouri. The deed was duly recorded in Montgomery county on March 15, 1919. Conceding that the Kansas court had at least constructive knowledge of the fact that the Missouri court had directed that mineral rights be reserved, it was not bound to follow the judgment of the Missouri court that the interests of the minors required such reservation. Especially so since the petition of the guardian who was the mother of the minors did not ask it. The probate court of Montgomery county had full power to deal with the minors’ interest in the land without regard to the Missouri court. (Eberhart v. Rath, 89 Kan. 329, 336, 131 Pac. 604; Riemann v. Riemann, 124 Kan. 539, 262 Pac. 16; Harrison v. Miller, 87 Kan. 48, 123 Pac. 854; 11 Am. Jur. 328, sec. 30; and see, also, Guy v. Hansow, 86 Kan. 933, 122 Pac. 879.)
Appellants say that the order of sale and the guardian’s deed were void because the guardian did not comply strictly with the statute in the matter of notice to the minors of the hearing on the petition to sell. The statute provides for personal service upon resident minors and for service by publication in the case of nonresident minors. (G. S. 1935, 38-212.) The minors were nonresidents and the guardian’s proof of service recites that personal service had been made upon the minors. Appellants say that such service was insufficient. They are in the rather anomalous position of claiming that personal service was had upon them, but that they should have been notified by a newspaper publication. It is to be noted that the court’s order of sale recited: “It appearing to the court that said guardian has given notice of the time and place of hearing said petition as by law required and in conformity with the orders of the court heretofore made,” etc.
Appellants cite the case of Mickel v. Hicks, 19 Kan. 578, where it was held that a defect in the notice made the sale void. Justice Brewer, the third member of the then court, was of the opinion that the sale was not void and therefore not open to collateral attack. And in the later case of Thompson v. Burge, 60 Kan. 549, 57 Pac. 110, wherein the facts were substantially similar to those of the Mickel case, it was held that the defective notice did not make the proceedings void and they were not subject to collateral attack. The court said: “There is a wide distinction between cases where the notice is defective and where there has been no notice at all.” (60 Kan. 554.) (See, also, to same effect, Bradford v. Larkin, 57 Kan. 90, 45 Pac. 69.) In Beachy v. Shomber, 73 Kan. 62, 84 Pac. 547, cited by appellants, the sale was held void, but it must be noted that the ward had no notice at all of the actual date of the hearing, in Harrison v. Miller, 87 Kan. 48, 123 Pac. 854, involving sale of lands of nonresident minors, and wherein it appeared that the minors had not been served with a copy of the petition, the court said: “In Thompson v. Burge, 60 Kan. 549, it was held that the insufficiency of publication of the notice was cured by the confirmation of sale.” (p. 52.)
Examination of the decisions in other jurisdictions reveals a marked conflict on the question. Critical examination of such cases would be of little profit, since they are in many cases based upon specific statutory provisions. (See 25 Am. Jur. 81, sec. 130.) Among the cases based upon a statute substantially similar to the Kansas statute, and holding the sale good as against collateral attack, are a number of Oklahoma cases. Among them are Eaves v. Mullen, 25 Okla. 679, 107 Pac. 433; Sharp v. Whitney, 170 Okla. 105, 39 P. 2d 54; Lewis v. Chapman, 170 Okla. 116, 39 P. 2d 102.
It might well be urged that a reasonable construction of-section 38-212 would be that service by publication might be had upon nonresident minors where it is impossible or inconvenient to secure personal service upon them because of their residence outside the state. The instant case requires no opinion as to that. No direct attack upon the service- is here involved, and none has at any time been made. Whatever might have been said for appellants’ contention if timely urged in direct attack, the order of sale and the guardian’s deed cannot now be invalidated by collateral attack made more than nineteen years after the probate proceedings were had.
Appellants’ contention that the probate proceedings were void because the record does not show that the guardian took the oath prescribed by the statute need not be considered, since the question was not raised in any of the pleadings, nor does the record show that it was presented to the trial court.
The contention that the reservation “of all of the mineral rights” in the deed signed by the seven adults effectually reserved all such rights in the land, including those of the minors, requires little comment. Obviously the adults could not reserve something they did not own. They could no more reserve the minors’ mineral rights than they could convey the surface rights belonging to the minors. For the same reason the deed given by the adults could effectuate no severance of the surface and the mineral interests, as far as the minors were concerned. Other contentions of the appellants are resolved by what has already been said and need not be further considered.
There remains the question of the statute of limitations. The guardian’s deed, under which the appellee claims, was executed on March 8, 1919, and recorded on March 15, 1919. The applicable statute is to be found either in G. S. 1935, 60-304, Second, which provides that actions for recovery of real property sold by executors, administrators or guardians, upon order of the court, “brought by the heirs or devisees of the deceased person, or the ward or his guardian, or any person claiming under any or either of them, by title acquired after the date of the judgment or order” can only be brought within five years after the recording of the deed; or under division Fourth of the same section which reads: “An action for recovery of real property not hereinbefore provided for, within fifteen years.”
We think it clear enough that the instant case falls within division Second, which would bar adults after five years from March 15, 1919. But we need not rest the proposition upon the five-year provision. The action was barred as to the adults under the fifteen-year limitation of division Fourth, such period expiring on March 15, 1934. The action was not begun until September 13, 1938. Appellants contend that the action is not barred as to those who were then minors, unless fifteen years has elapsed after they became of age; in other words, that the statute does not start to run until the “disability” of minority has been removed. This court, however, has held that the statute starts to run as to minors the same time that it does as to adults. The only difference is that the period may be extended as to minors so that in any event the statutory period will not expire earlier than two years after they become of age. (G. S. 1935, 60-305; Koch v. Krueger, 149 Kan. 123, 127, 86 P. 2d 526; Beeler v. Sims, 93 Kan. 213, 216, 144 Pac. 237.) In the instant case the youngest child became of age on August 3, 1930. Accordingly, on the facts heretofore stated, the claims of all heirs were barred by the statute of limitations and the demurrers to the answers were properly sustained.
It follows from the conclusions stated that the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to replevin a Ford automobile. Judgment was for the plaintiffs. Defendant appeals.
The petition alleged that plaintiffs were a copartnership and engaged in the business of financing the buying of automobiles; that about the 3d day of April, 1939, Alice M. Schaaf made her note in writing to the Lydick Motor Service, a copartnership composed of Paul Schimming and W. H. Schaaf; that this note was assigned to plaintiffs on April 4, 1939, and that plaintiffs were the-holders of it; that to secure payment on the note on April 3, 1939, the maker, Alice M. Schaaf, gave a chattel mortgage to the Lydick Motor Service covering the 1939 Ford automobile in question; that the mortgage stated that the note and mortgage were given as a part of the purchase price of the automobile; that the mortgage was assigned in writing to the plaintiffs and was duly recorded with the register of deeds on April 6, 1939, and that defendant Pagenkopf claimed to be the owner of the automobile by virtue of a title he acquired after the recording of plaintiffs’ mortgage; and that the First National Bank of Herington claimed to have an interest in it by virtue of a mortgage given to them by H. A. Pagenkopf, dated May 27, 1939, and filed June 14, 1939; that any interest either one of these defendants might have was junior to the rights of these plaintiffs; that plaintiffs were entitled to immediate possession of the car and they deemed themselves insecure and had elected to take possession of the automobile which was in the possession of H. A. Pagenkopf, who had refused to deliver possession of it to plaintiffs upon demand; that the value of the automobile was about $550. Judgment was asked for possession of the automobile or judgment in that amount.
Pagenkopf answered that during the times mentioned the Lydick Motor Service operated an automobile garage and sales agency and had the agency for the sale of Ford automobiles in their vicinity and that these facts were well known to the plaintiffs; that about May 24,1939, he purchased the automobile in question and paid for it by delivering his old automobile of the value of $520 and by paying the balance thereof, partly in cash and partly by execution of a note and chattel mortgage upon the new car; that he received from the automobile agency the title certificate, as required by the laws of the state of Kansas, and this title certificate showed the automobile to be free and clear of any liens. The defendant further alleged that Alice M. Schaaf was not the owner of the car and was not in possession of it at the time the purported chattel mortgage was claimed to have been executed by her to the plaintiffs; that no title was ever made to Alice M. Schaaf and no certificate of title was ever transferred by her to these plaintiffs, as required by the laws of the state of Kansas, and that by reason of the foregoing the purported chattel mortgage claimed to have been executed to these plaintiffs by Alice M. Schaaf was fraudulent and void as to this defendant; that the defendant further alleged that the Lydick Motor Service made some payments to the plaintiffs upon the note sued upon in plaintiffs’ petition, but that the exact amounts of these payments were unknown to defendant. The answer further alleged that defendant was informed and believed that the plaintiffs operating as an automobile finance company had made it a practice to finance new cars for the Lydick Motor Service and left new cars with the Lydick Motor Service for sale; that they knew and understood that the Lydick Motor Service was engaged in business as dealers in automobiles and engaged particularly in the advertising and sale of new and used Ford cars and that plaintiffs knew that the car herein sued upon was being advertised and offered for sale to the general public by the Lydick Motor Service and that by reason thereof said plaintiffs made the Lydick Motor Service their agent for the purpose of selling it, and by reason thereof the plaintiffs should now be estopped from claiming any lien on this car as against this defendant. The First National Bank answered, setting forth that Pagenkopf on May 27,1939, executed a mortgage to them on the automobile in question, which they filed for record on June 14,1939.
For reply, the plaintiffs alleged that the note and mortgage made by Alice M. Schaaf to the motor company and assigned to them was a retail sales chattel mortgage, and that upon the representations made by Alice M. Schaaf and the Lydick Motor Service, as shown in the note and chattel mortgage, they believed and relied on the allegations in the paper and purchased the retail chattel mortgage in good faith; that this chattel mortgage was not a floor-plan mortgage and that neither this plaintiff nor its agent ever agreed or knew that the automobile was to be kept on the floor for sale, but believing and relying upon the representations made in the note and mortgage to them, understood that Alice M. Schaaf was purchasing this car and had given the note and mortgage in controversy as a part of the payment.
A jury was waived and the case tried by the court. The trial court did not make any findings of fact, but found the issues generally for the plaintiffs and gave them judgment for $459.30 and ordered that if this judgment was not paid the plaintiffs would be awarded possession of the automobile. Motion for a new trial was filed and overruled.
There was very little dispute about the facts. For the purposé of the conclusion we have reached it may be stated there was no dispute. The car in question was a new one and plaintiffs knew of this or should have known of it from the purchaser’s statement when they made the loan to Mrs. Schaaf. Mrs. Schaaf was the wife of one of the partners and an employee of the Lydick Motor Service. The plaintiffs knew this or should have known it from the purchaser’s statement. The chattel mortgage upon which plaintiffs are relying in this case was placed on record in Dickinson county on April 6, 1939. This mortgage was on record on May 24,1939, when defendant Pagenkopf bought the car from the motor company and on May 27 when the bank took the mortgage which Pagenkopf had given it to secure the purchase price. Pagenkopf did not know of any mortgage or lien being on the car when he bought it. All parties admit that he has acted in good .faith at all times. The motor company was in possession of the car at the time the note, mortgage and purchaser’s statement of Mrs. Schaaf were made and when the car was sold to Pagenkopf.
The theory upon which the trial court decided the case was that the papers that were sent to the plaintiffs recognized that the, car had been sold by the motor company, the real owner, to Mrs. Schaaf, and that the plaintiffs had a right to depend on this in making the loan. Although the trial court did not say so in.its written opinion, it undoubtedly made the fact that the mortgage of plaintiffs was on file when Pagenkopf bought the car, a decisive factor in the case. The court said:
“This is one of the oases where because of the fraud [of] a third party one of two innocent parties must suffer. . . . The rule with reference to the sale of property left by the mortgagee at a place of business where such property is kept for sale I don’t think applies in this case.”
The trial court and all the parties admit the correctness of the rule that—
“Where a mortgagee knows the mortgagor is a dealer, buying to sell in the regular course of business, and consents to a sale by the mortgagor, the purchaser takes free from the mortgagee’s lien.” (Emerson-Brantingham Implement Co. v. Faulkner, 119 Kan. 807, syl. ¶[ 2.)
(See, also, Trapani v. Universal Credit Co., ante, p. 715, 100 P. 2d 735.)
The plaintiffs argue that the rule does not apply here because there is no evidence that the finance company in this case knew that the car in question was to be kept in stock by the plaintiffs and finally sold by them. The trial court adopted this view.
We shall consider the case just as if there were no such evidence. We have seen that the plaintiffs knew that Mrs. Schaaf was an employee of the motor company and the wife of one of the partners of that company. The plaintiffs were in the business of buying chattel mortgages on automobiles. This is a business that has come into being within the last two or three decades and has certain well-established practices. One of them is that employees of automobile agencies take the legal title to a car and make the mortgage to a finance company, just as was done in this case, while the employee never does have possession of the car. On account of the business in which plaintiffs were engaged they were bound to know about this practice in the automobile financing business. Knowing about this practice, What was their duty in a case such as we have here where the mortgage they bought was made by an employee of the mortgagee and the wife of one of the partners of the mortgagee? On account of the fraud of a third party, one of two innocent-parties must suffer. Is it not better that the party whose negligence made the fraud possible should suffer? When the mortgage was offered to plaintiffs the facts already noted should have caused them to investigate. Had they done this they would have learned that the car upon which the mortgage was given was going to be offered for sale in the regular course of business. They could then have gone ahead and bought the mortgage, not depending on'whether or not they had confidence in the company, which really had possession of the car. On the other hand, when Pagenkopf entered the place of business of the motor company he had a right to expect that the company, which was offering the car for sale, had a good title to it. If out of an excess of caution Pagenkopf had gone to the records of the register of deeds in Dickinson county he would have looked to see if a car owned by the Lydick Motor Service was mortgaged, and would have found none was. In order for the filing of the mortgage in this case to have constituted any notice to him it would have been necessary for him to have examined the record not only as to every employee of the company, but also as to every other mortgage of record. It would never occur to any ordinary person to do such a thing.
In Gump Investment Co. v. Jackson, 142 Va. 190, 128 S. E. 506, the court considered a similar situation. There that court said:
“One conclusion is that some duty, at least, rests upon an individual, corporate or otherwise, who finances a retail dealer, to see to it that cars upon which he has a lien are not left under the domain and control of such dealer on his salesroom floor, to be offered to the public. The business of the Gump Investment Company was to finance retail automobile dealers, and it did finance them for a profit. It assumed some risk both as to the moral and financial standing of every dealer it financed. It took a risk as to the hazard for a profit. This is the status of the Gump Investment Company in this case.
“Another conclusion is that a person going into the place of business of a retail automobile dealer, and purchasing a new ear commingled with the stock for sale, from the showroom, of such dealer, without any actual knowledge that there is a lien upon such car, and who pays the full purchase price, and to whom the car is delivered, is ordinarily under no obligation to examine the records to ascertain whether there is a lien upon such car.” (p. 195.)
The above language is persuasive here. It seems the better public policy to put the burden on the party who is in the business of financing automobiles for profit rather than on the member of the public who does business with one he has a right to believe is a reputable firm.
The case of Guaranty Discount Corp. v. Bowers, 94 Ind. App. 373, 158 N. E. 231, deals with this question. That court said:
“It is equally well settled that where the owner of a chattel, after he has sold it to one person, wrongfully sells and delivers it to another, the first purchaser is estopped to question the second purchaser’s right to the property if the second transaction was made possible by reason of the fraud or negligence of the person to whom the first sale was made.” (p. 376.)
It is true that the court in that case saw fit to hold for the last purchaser of the car because the finance company neglected to require the motor company to comply with the certificate of title law, but the case is of interest to us because it holds that neglect on the part of the finance company, which makes possible the loss, makes the finance company the one which should bear the loss.
The defendant Pagenkopf refers to the chapter of our statutes known as the certificate of title law. This statute was passed in 1937. The section with which we are interested is G. S. 1939 Supp. 8-135. The section is a long one and covers several phases of the transfer of title to automobiles. The portions with which we are interested are as follows:
“Dealers shall execute upon delivery to the purchaser of every vehicle, a bill of sale stating the lien or encumbrances thereon, in accordance with form prescribed by the commissioner for all vehicles sold by them. Upon the presentation to the commissioner or his authorized agents of a bill of sale executed in the form prescribed, by a manufacturer or dealer for a new vehicle, sold in this state, a certificate of title shall be issued in accordance with the provisions of this act: ... On or after July 1, 1937, it shall be unlawful for any person to operate in this state a motor vehicle, trailer or semitrailer registered under the provisions of this act or to transfer his title to a vehicle, trailer or semitrailer to any person or dealer, unless a certificate of title shall have been issued as herein provided. In the event of a sale or transfer of ownership of a vehicle, trailer or semitrailer for which a certificate of title has been issued, the holder of such certificate of title shall endorse on the same an assignment thereof, with warranty of title in form printed thereon, as prescribed by the commissioner and the transferror must deliver the same to the buyer at the time of delivery to him of said vehicle. ... (6) On and after July 1, 1937, it shall be unlawful for any. person to buy or sell in this state, any vehicle required to be registered hereunder, unless, at the time of delivery thereof there shall pass between the parties such certificate of title with an assignment thereof, as herein provided, and the sale of any vehicle registered under the laws of this state, without the assignment of such certificate of title, shall be fraudulent and void.”
It is admitted by all parties that no bill of sale was executed by the Lydick Company to Mrs. Schaaf when the purported sale was made to her, as is required in the first paragraph quoted above. Hence no certificate of title was issued to her.
It will be noted that the second paragraph quoted above made it unlawful to transfer title to a vehicle to any person unless a certificate of title had been issued. The paragraph quoted also provided that in the event of the sale of a vehicle the holder of the certificate of title should endorse on it an assignment. The third paragraph made it unlawful to buy or sell any vehicle unless at the time of delivery there should pass a certificate of title with the assignment of it.
The defendant argues that since the above provisions were not complied with when the mortgage to plaintiffs was made such mortgage was void. He cites Morris v. Firemen’s Ins. Co., 121 Kan. 482, 247 Pac. 852. In that case a farmer had bought a new car from a stranger. He insured the car against theft. The car was stolen. The law at that time made it unlawful for any person to buy an automobile from anybody except a regular dealer having an established place of business unless the seller was identified by two acquaintances of the buyer and unless he obtained from the seller a bill of sale, reciting a description of the car, signed by the identifying witnesses. It was admitted that compliance was not had with this statute. When the farmer endeavored to collect from the insurance company on his policy that company raised the point that on account of this noncompliance the sale to the farmer was void and that he did not have, an insurable interest in the car. This court remarked that the purpose for which the statute was enacted was to minimize the possibility of owners having their cars stolen and held that the noncompliance with the statute did make the sale void.
The statutes we are considering were clearly enacted to make it more difficult for a thief to dispose of a stolen car. But this was not the only purpose of the statute. A man in the position of Pagenkopf, who would be deprived of his car through the fraudulent machinations of a dealer, is just as unfortunate as the man who has his car stolen from his garage. He really can guard against the thief better than he can the dealer. These statutes were enacted to protect the public from one as much as from the other.
Without passing on the question of whether the mortgage of Mrs. Schaaf to plaintiffs was void, we have no trouble in reaching the conclusion that the failure of plaintiffs to inquire whether .Mrs. Schaaf had a certificate of title when the mortgage was offered to them is such negligence that the rule heretofore noted in this opinion that “where a mortgagee knows the mortgagor is a dealer, buying to sell in the regular course of business, and consents to a sale by the mortgagor, the purchaser takes free from the mortgagee’s lien” should apply. Had the plaintiffs made inquiry they would have ascertained that no certificate of title had passed and would have learned that the sale to Mrs. Schaaf was not in good faith. This was the real reason for the holding of the court in Guaranty Discount Corp. v. Bowers, supra.
We have concluded, therefore, that the title of the defendant Pagenkopf is superior to the rights of the plaintiffs, both on account of broad grounds of public policy and because the plaintiffs failed to require Mrs. Schaaf to comply with the certificate of title law.
The judgment of the trial court is reversed with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Hoch, J.:
This was an action by a municipality to condemn land for airport purposes. The matter was heard by a jury, a verdict rendered, and a new trial granted upon motion of the city. From the order granting a new trial and from other orders, to which reference will later be made, the landowners appeal.
The Pughs, the appellants, were owners of a quarter section of land near the city of Topeka, Kan. In 1929 they started operations to convert the land into an airport. For reasons which will hereafter appear, it is not necessary to recite the facts in detail. Suffice it to say that in December, 1933, appellants leased the property to the city of Topeka for a term of five years at a stated annual rental with option to purchase at a stipulated price. In December, 1937, about a year before the expiration of the lease, the city started condemnation proceedings for the purpose of acquiring the property for a municipal airport. In the meantime substantial improvements had been put upon the land by the city and by the federal government. Appraisers were regularly appointed, made their award, from which the landowners appealed to the district court. The landowners filed a motiqn asking the court to add to the judgment and verdict the sum of $70,000 expended to cover improvements by the city and the federal government prior to the condemnation. This motion was overruled. The city filed a motion for a new trial, which was sustained, and from both orders the- landowners appeal. Thereafter the landowners filed in the action a petition for a declaratory judgment on questions of law involved in the case and judgment thereon was given, to which later reference will be made.
The principal matters argued relate to the proper basis of valuation of the property, to the competency of witnesses testifying to such values and to the matter of the improvements. But we are confronted at the outset with important preliminary questions.
The first question is whether, under the facts shown and under the principles heretofore laid down by this court, the order of the trial court granting a new trial should be overruled. The motion for a new trial was filed on May 26,1938, and the motion to add the value of the improvements to the judgment was filed on May 27, 1938. On December 28, 1938, the trial judge addressed a letter to the attorneys for both parties stating that he had given a great deal of consideration to the motions, together with the briefs that had been filed and the authorities that had been cited, and stated, “I have come to the conclusion that I cannot let the verdict of the jury stand for the reason that there are so many things in connection, with the verdict that I cannot approve.” He followed this declaration by stating that in arriving at his conclusion he had been seriously concerned with the theory upon which the matter had been submitted, and he discussed the question of whether the land was to be valued as land or as an airport and the competency of certain witnesses who had testified. Appellants argue that the trial court was in error as to the law on this matter, that such alleged misunderstanding of the law was the only reason given for granting a new trial, that therefore the order granting a new trial should be set aside. The principal trouble with this contention is that while the trial court only particularized with reference to one or two matters of law, it stated, “There are so many things in connection with the verdict that I cannot approve.” Moreover, while the journal entry refers to the letter heretofore referred to, the finding itself was:
“The court finds that the motions of the city of Topeka for a new trial and to set aside the verdict should be sustained for the reason that the court is not satisfied with said verdicts and does not approve them.”
That situations might exist which would justify setting aside an order granting a new trial, we need not discuss. But certainly appellants .carry a heavy burden where the trial court' stated that the verdict was set aside because it did not approve it. This court has many times said that it is the duty of trial courts to exericse a judicial judgment in the matter and if it does not approve the verdict to disapprove it. (Claggett v. Phillips Petroleum Co., 146 Kan. 846, 847, 73 P. 2d 1015; Durkin v. Kansas City Public Service Co., 138 Kan. 558, 562, 27 P. 2d 259; Manker v. Tough, 79 Kan. 46, 98 Pac. 792, syl. ¶ 5; Clark v. Southwestern Greyhound Lines, 146 Kan. 115, 69 P. 2d 20, and the cases cited in the above opinions.) If the trial court had clearly stated in the instant case that a new trial was granted solely on a question of law, the statement being ac companied by a definite holding upon the matter, a different question would be presented. But the trial court did not do that. It stated that there were many things in connection with the verdict which it could not approve. On such a record the order granting a new trial must be permitted to stand.
The question of the improvements, raised by appellants’ motion, being at issue in the trial to be held, does not require our consideration at this time.
About a month after a new trial had been granted and appeal taken to this court plaintiffs filed in the same action a petition for a declaratory judgment on points of law involved in the case. The court rendered judgment thereon, holding that the real estate being condemned by the city was not to be appraised as an airport, but as land; that witnesses qualifying only as to valuation of airports and not qualifying to testify as to “land” values are incompetent, and that appellants are not entitled to recover for the improvements placed on the land by the city in connection with the United States government prior to the condemnation and during the lease period.
From such declaratory judgment, as well as from the order granting a new trial, appeal was taken.
The questions of law passed upon by the trial court in its declaratory judgment are questions directly involved in the main action. We are confronted at once, therefore, with the question of whether in such a situation the declaratory judgment act is properly invoked. The Kansas act (G. S. 1935, 60-3132) provides:
“This act is declared to be remedial; its purpose is to afford relief from the uncertainty and insecurity attendant upon controversies over legal rights, without requiring one of the parties interested so to invade the rights asserted by the other as to entitle him to maintain an ordinary action therefor; and it is to be liberally interpreted and administered with a view to making the courts more serviceable to the people.”
It thus appears that the declared purpose is to furnish a means of enabling those who have an actual and substantial controversy to have their respective legal rights judicially determined without such invasion of rights as to precipitate an immediate cause of action. That fundamental purpose provides a wide field of usefulness. We would encourage rather than curb the relief contemplated by the act, and within its proper and useful function would promote the liberal interpretation and administration which the act itself enjoins. But does the act contemplate its use simply as an adjunct to a cause of action then being actually adjudicated and wherein ordinary and adequate remedies are being invoked?
A substantially similar question was presented and briefly treated in the case of Hudson v. Travelers Ins. Co., 145 Kan. 732, 67 P. 2d 593. The plaintiff there in an action on an accident insurance policy sought to join as a third cause of action under the declaratory judgment act the same allegations that were contained in the first and second causes of action. Such joinder was not permitted, and it was held that “there is no sound purpose in invoking declaratory relief where the only object is the decision of questions already pending before the court in other causes of action.” Commenting on the case of Railroad Bldg., Loan & Savings Ass’n v. Grayum, 136 Kan. 418, 15 P. 2d 405, wherein joinder of a cause of action under the declaratory judgment act had been permitted, the court said:
“It (Railroad Bldg., Loan & Savings Ass’n v. Grayum) was based on an unusual state of facts, and the doctrine there laid down is not to be extended.”
An examination of many cases in other jurisdictions, under similar statutes, shows an overwhelming weight of authority in support of the proposition that declaratory relief is conditioned upon the absence of any other adequate or practicable remedy and that it is not to be used merely as a substitute for ordinary actions, either at law or in equity. Particularly is its use not sanctioned in another action where the same issues are actually being determined. The rule is thus stated in 16 Am. Jur. 295:
“The courts will ordinarily refuse to entertain an action for a declaratory judgment as to questions which are determinable in a pending action or proceeding between the same parties. A declaratory judgment is not a proper mode of determining the sufficiency of legal defenses to a pending action. A disputed question of law or procedure raised in a pending suit is not such an actual controversy as comes within the letter, reason, or spirit of the declaratory judgments act.”
This view, generally held, may be illustrated by a few typical comments:
“An action for a declaratory judgment should be dismissed where, at the time of its commencement, there was pending a proceeding between the same parties in which all the questions concerning which a declaration was asked could have been determined.—Colson v. Pelgram, 259 N. Y. 370, 182 N. E. 19.”
“A declaratory judgment proceeding is not a substitute for either actions at law or in equity.—Grosse Pointe Shores v. Ayres, 254 Mich. 58, 235 N. W.829.”
“. . . it was never intended as a substitute for a new trial, or other steps that the code requires to be taken in the same action, or for an appeal to the court of appeals. Hence, where matters concerning the construction of a will have been determined in a partition proceeding, the court will not entertain jurisdiction of a petition for a declaration seeking a different construction of the will.—Back’s Guardian v. Bardo, 234 Ky. 211, 27 S. W. 2d 960.”
“A declaratory judgment is not a proper mode of determining the sufficiency of legal defenses to a pending action.—Slowmach Realty Corp. v. Leopold, 236 App. Div. 330, 258 N. Y. Supp. 500.”
“The court’s discretionary power to refuse declaratory relief is properly exercised where it appears that the issues raised by a cross complaint seeking such relief, filed in an action on a promissory note, can be readily determined in the trial of the special defenses raised in the answer.—Welfare Invest. Co. v. Stowell, 132 Cal. App. 275, 22 P. 2d 529.”
“. . . such an action will not be entertained where it appears that an immediate cause of action exists between the parties for which one of the ordinary legal remedies is available.—Kaleikau v. Hall, 27 Haw. 420.”
“. . . a disputed question of law or procedure raised in a pending suit is not such an actual controversy as comes within the letter, reason, or spirit of the declaratory judgment act.—Jefferson County, ex rel. Coleman, v. Chilton, 236 Ky. 614, 33 S. W. 2d 601.”
“Where there is no necessity for resorting to the declaratory judgment, it should not be employed.—James v. Alderton Dock Yards, 256 N. Y. 298, syl. ¶ 4, 176 N. E. 401.” (87 A. L. R. 1219-1221.)
The parties to the instant controversy may naturally feel that it would be desirable to have a declaration now on questions of law said to be involved, even though those questions may assume a quite different aspect as the actual trial develops. But certainly in the absence of very unusual circumstances or emergency features such procedure is not within the contemplation of the act. We are asked, in effect, to act in an advisory — or rather a supervisory — capacity to the trial court in a case about to be heard. The use of the act for such purposes would in many instances complicate actions and delay rather than expedite the final determination of issues. Moreover, the general adoption of such a practice would impose an unwarranted burden upon the courts.
The order granting a new trial is affirmed and the appeal from the declaratory judgment is dismissed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover damages for personal injuries. A demurrer was sustained to the plaintiff’s evidence and he appeals.
In a preliminary way it may be stated that one J. S. Cohen was the owner of a building facing west on Kansas avenue in Topeka. The ground floor of that building was divided into three rooms. There was a cross partition which created a storage room to the rear of the building. The portion to the front was divided by a partition running lengthwise in such manner as to create two rooms facing on the street. The north room was occupied by the Pennington Ice-cream Parlor and the south room was occupied by a restaurant conducted by the defendants. In the southeast corner of the storage room was a toilet. In the floor of the storage room was a trap door which led to the basement.
Briefly stated, plaintiff’s petition alleged that on May 7, 1938, he had entered defendants’ restaurant and ordered his dinner, made inquiry as to the whereabouts of the toilet facilities and was informed thereof by an employee of defendants; that he proceeded to the toilet, but upon returning therefrom to the restaurant proper, he fell into an unguarded trap door and stairway, injuring himself, the proximate cause of his falling being negligence of the defendants in that the means of ingress and egress to the toilet was improperly lighted; that there was no guardrail around the trap door and open stairway nor other warning to apprise plaintiff it was there. The defendant, Lena Hunt, answered denying generally and she specifically denied that she operated, controlled or managed the restaurant. The defendant, Gray, filed no answer. The other defendants filed separate answers in which they alleged that they rented the restaurant room from Cohen; that the north room was occupied by Pennington; that the north side of the storage room was occupied with property of the owner Cohen; that toilet facilities were furnished by Cohen and were used by all of the tenants and their patrons. There was also an allegation that plaintiff had settled with Cohen. There was further allegation that plaintiff went to the toilet without injury, but in returning to the restaurant he did not retrace his route, and if he sustained any injury it was caused by his own negligence. Plaintiff’s reply, so far as need be noticed, was a denial he had made a complete release, and an affirmative allegation that Cohen and the defendants were not joint tort-feasors.
Plaintiff, as a witness in his own behalf, testified that he and his wife went into the restaurant on the night of May 7, 1938. He inquired of defendant Gray whether he could use the toilet, and Gray took him to the door in the partition and said, “Right back there.” Gray told him about a cord or string to turn on the light in the toilet. He pulled that cord and could see the light through the door of the toilet. It was dark in the room, he could not see, and he kept his right hand on the cord-and followed it to the toilet. This placed him on the north side of the cord, and on the way he did not see any trap door. After using the toilet, he started back to the restaurant, walking straight west. He could see light around the door in the partition and went toward it, but he did not keep hold of the cord, as he was using his hands to arrange his clothing. He thought he was following the route by which he came. On the way back he stepped into the open stairway, the trap door having been left open. Gray, one of the defendants, was called as a witness and testified concerning plaintiff’s request and that he directed him and told him about the cord and the light. He stated the cord ran from the partition door to the toilet and that if you walked north of the cord you would not walk over the trap door, but if you walked two feet to the south of it you would. He also stated the defendants maintained the toilet by furnishing the light and toilet paper, .kept it clean, etc., and that they used the storage room for cleaning vegetables, waitresses used it as a dressing room to change uniforms, etc. There was a light fixture in the storage room which witness operated to turn on a light after Bass had fallen. His testimony also showed that Cohen had goods stored in the rear room; that employees of all tenants used the toilet. He also testified that there was an electric refrigerator in the basement and that Hunt had been down there before dark to oil it. Witness did not know the trap door was not closed when he directed plaintiff to use the toilet. Other witnesses testified to the use of the storage room. A fire inspector testified he had told Hunt the trap door should be kept closed or rails should be put around it.
The defendants’ demurrer to the above evidence was sustained, and plaintiff appeals.
In a counter abstract we are supplied with a copy of the remarks of the trial court giving its reasons for ruling as it did. Briefly stated, that court was of opinion the evidence showed the defendants, with other tenants and the owner, had joint use of the back or storage room and the toilet therein; that the duty to keep that part of the premises in repair and safe for the users thereof was that of the owner; that plaintiff’s action was founded on a claim of negligence and his evidence had failed to show breach of any duty by the defendants insofar as any premises under their control was concerned; that plaintiff’s theory was defendants should have warned him of danger, but he had failed to show defendants knew the trap door was open; that it was shown the storage room was dark and the plaintiff was confronted with a duty not to proceed without knowing he could safely do so; that he went to the toilet by following the cord and he should have returned by the same route; he did not do so and was guilty of negligence.
Appellant’s contention, as stated in his brief, is that a restaurant operator is liable to one who, coming into his place of business as a guest, falls into an unguarded opening over which there is a trap door which had not been closed, and that it is immaterial who left it open; that the operator is bound to exercise due care to maintain his premises in a reasonably safe condition, and if he knew or should have known the trap door was open, he is responsible. On the main question whether there was negligence, the appellees contend that the evidence shows only that they had a permissive use of the storage room; that the responsibility of keeping the open stairway guarded was that of the landlord; that the evidence does not disclose they knew the trap door was open; that the plaintiff did not follow the directions given, and there was no liability on their part.
For the reason the trial court did not refer to it when ruling on the demurrer, and the further reason appellant does not refer to it in his brief, we assume the trial court’s attention was not directed to a pertinent statute, G. S. 1935, 36-111, which provides that in all cities having a public system of waterworks and sewerage, every restaurant shall be equipped with suitable water closets for the accommodation of its guests, nor to another statute of less pertinency, G. S. 1935, 36-113, that each restaurant shall be provided with a main public washroom, convenient and of easy access to guests. (Compare Criswell v. Bankers Mtg. Co., 128 Kan. 609, 298 Pac. 722, where it was attempted to use the statute as a defense.) It may here be observed that in the testimony the witnesses all used the word “toilet,” not water closet or washroom. The word “toilet” might refer to either or both. (See Webster’s New International Dictionary for definition 5 of the word “toilet.”) In view especially of the first statute, we think it may not be said that plaintiff was a guest and invitee so long as he remained in the restaurant room proper, but that when he went to the toilet he was a licensee — he was an invitee at all times. Neither do we think it may be said the defendants did not have control of the premises. In addition to the statutory requirement that they furnish toilet facilities for the use of their guests, there was evidence that they furnished the facilities and that they maintained them by furnishing lights and toilet paper and that they kept the place clean and in order. We cannot agree the undisputed evidence shows that the landlord Cohen was in possession and actual control of the rear room and toilet and that defendants had only a permissive use of them! Under the circumstances here obtaining, we think it unnecessary to discuss the various authorities cited by appellees tending to show that where premises are let to several tenants, all using certain portions in common, the landlord is held to be in control, and under duty to exercise reasonable care and diligence to keep such parts in safe condition, including Hinthorn v. Benefer, 90 Kan. 731, 136 Pac. 247, 36 C. J. 212 and 213, and 16 R. C. L. 1072. They also cite 36 6. J. 247, where it is said:
“It has been held that a tenant of a part of the demised premises is not liable for injuries received by his invitee by x-eason of the unsafe condition of a walk used by him in common with other tenants and over which the landlord had general control.”
The citation in support of that statement is Dierkes v. WolfeSwehla Dry Goods Co., 210 Mo. App. 142, 243 S. W. 269, where it was said:
“Whei'e a walk was used by all the tenants in the building for access to the parts of the building occupied by them, the duty to keep it in repair and in a safe condition devolved upon the landlox’d, and hence a tenant who knew nothing concerning the unsafe condition of the walk and which was in no way under his control was not liable for an injury x'eceived thereon.” (Headnote.)
And the rule contended for by the appellees has some exceptions. In Kallenbach v. Manne, 138 Kan. 797, 28 P. 2d 746, parts of a building had been let to different tenants. There was a walk leading to various parts of the building used by various tenants and ■others. In the walk were doors which, when opened, led to the cellar stairs. A customer of the store passed over the closed doors. While he was in the store, someone opened the doors and on leaving he fell into the stairvtay. He brought an action against the landlord and the tenant. It was held:
“Where cellar doors over which customers entering a stoi’e are compelled to walk are in a safe condition in themselves and only become dangerous when one of them is left open by some third person, the fact that the cellar doors were left open does not render the landlord liable in damages to one lawfully on the premises who falls into the open cellarway and is injured.” (Syl.)
The evidence shows that defendant Hunt had been to the basement before dark to oil the refrigerator; that defendant Gray, when directing plaintiff, did not turn on an available light which would disclose the condition, but only instructed plaintiff about turning on the small light in the toilet; that Gray made no effort to ascertain whether the trap door was open or closed nor did he warn plaintiff; that if a right-handed person proceeding to the toilet followed the cord he would miss the stairway to the basement, but if he returned using his right hand on the cord, he might or might not step into the opening if the trap door was not closed, depending on the angle he held his arm.
A statement of the rule of liability of possessors of land to business visitors may be found in 2 Restatement, Torts, § 343, viz.:
“A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (o) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them, and (b) has no reason to believe that they will discover the condition or realize the risk involved therein, and (c) invites or permits them to enter or remain upon the land without exercising reasonable care (i) to make the condition reasonably safe, or (ii) to give a warning adequate to enable them to avoid harm without relinquishing any of the services which they are entitled to receive, if the possessor is a public utility.”
(See, also, 2 Restatement, Torts, § 360, comment a.)
The general rule there set forth has been followed in this state. In Reese v. Abeles, 100 Kan. 518, 164 Pac. 1080, L. R. A. 1917E, p. 747, it was held:
“The proprietor of a store is liable in damages to a customer who falls into an open stairway in the floor which is partially obscured in semidarkness caused by piles of merchandise stacked thereabout, when the customer went into the vicinity of the stairway to inspect certain shelf goods near by in response to a special invitation of the proprietor, who at the same time failed to give her a warning of the presence of the stairway.” (Syl. ¶ 2.)
In Criswell v. Bankers Mtg. Co., supra, it was held:
“It is the duty of a hotelkeeper to keep in a reasonably safe condition those portions of his hotel where his guests may be expected to come and go, and it cannot be said as a matter of law that there was no actionable negligence in his failure to sufficiently light a hallway through which the plaintiff had to go to reach her room and whereby she walked through an open doorway and fell down a stairway and was injured, but the issues of fact concerning the hotel-keeper’s negligence and of plaintiff’s contributory negligence were for the jury.” (Syl. II2.)
See, also, Ziegler v. Manufacturing Co., 108 Kan. 589, 196 Pac. 603, and Thogmartin v. Koppel, 145 Kan. 347, 65 P. 2d 571, and notes in 21 L. R. A. 456, and L. R. A. 1915F 572; also, Hamblet v. Buffalo Library Garage Co., 225 N. Y. S. 716, treating of the duty of a shopkeeper towards his customer as to the condition of his premises.
We think it may not be said the evidence failed to disclose negligence on the part of defendants.
Did the evidence show the plaintiff was guilty of negligence which precluded his recovery? ’ Appellees say he was — that he followed a course of his own choosing, in a place with which he was unfamiliar and which was so dark he could not. see. They rely on Kurre v. Graham Ship by Truck Co., 136 Kan. 356, 15 P. 2d 463, where it was held:
"Where a business invitee enters the premises of the inviter and follows a course of his own choosing, with which he is unfamiliar, and which is so dark that he cannot see, resulting in his injury, he is guilty of contributory negligence.” (Syl. Í2.)
As a reading of that decision will show, the statement of the sylla- ■ bus was very accurate in saying that plaintiff followed a course of his own choosing. In the case before us, the plaintiff on his way to the toilet followed the route to which he was directed. His testimony is that on his return he thought he was following and retracing that route. He could see the light around the door through which he had passed in going to the toilet and went toward it. So far as the record shows, no one had directed him that he must, come back in exactly the same path he went. His return could hardly be called following a path of his own choosing. Under the circumstances, was he under a duty to hunt up the cord, hold it in his left — not his right — hand, and follow it, or to call for help, or more light, in order that it might not be said he was negligent as a matter of law? We think not. Whether he was guilty of negligence was a fair question for the jury.
Appellees’ contention that the plaintiff had settled with the landlord needs little discussion. The document which it is contended bars the plaintiff is set out in the counter abstract, and is in form an affidavit by Bass that he had signed a covenant not to sue Cohen. The covenant itself is not before us. Apparently the trial court did not pass on the question, but based its ruling on other grounds. The present state of the record does not warrant further discussion.
The judgment of the trial court is reversed. | [
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The opinion of the court was delivered by
Allen, J.:
This was an action under the forcible detainer statute for the possession of property in the business district of Topeka. From a judgment in favor of plaintiff defendants appeal.
On June 22,1933, Dana MacYicar, owner, executed a lease covering the premises in question for a term of five years, beginning January 1,1934, at a stipulated rental, to the defendants H. E. and A. L. Pendry.
The lease contained the following provision:
“The parties of the second part shall have the right to the first option in case they may desire to continue to occupy said premises under a new lease after the expiration of the present terna, but shall , give to the party of the first part a thirty-days notice in writing of their intention to exercise such option.”
On December 2, 1936, MacVicar conveyed the premises to the plaintiff. On December 1, 1938, the defendants- served on plaintiff a notice in writing of their intention to exercise the option specified in the lease, the written notice stating that the lessees “do hereby and forthwith exercise said option and acceptance of said lease for a continuance of said lease after the expiration of the first term of said lease.”
Prior to the expiration of the lease, plaintiff served written notice on defendants that they would demand possession of the premises on and after January 1, 1939. On January 23, 1939, plaintiff served on defendants a written notice to vacate the premises on or before January 27, 1939, otherwise an action to eject defendants would be brought. Defendants refused to vacate the premises and the present action was instituted. The Court of Topeka, where, the action was filed, gave judgment in favor of defendants. The plaintiff appealed to the district- court. In the district court the defendants filed an answer, and a trial was had resulting in a judgment for plaintiff. The present appeal is from that judgment.
Counsel for defendants in their brief state that “the principal question involved in this appeal is whether the option provided for in the lease was sufficient to entitle the defendants to a renewal and to'continue-to occupy the property as tenants by giving the landlord the thirty-days notice of their desire to continúe the same as provided therein.”
In Buddenberg v. Welch, 97 Ind. App. 87,185 N. E. 865, the court had under consideration a “first option” lease. It was there said: •
“It will not be necessary to set out the entire lease, as the controversy in this case all hinges upon the clause in the lease in which Schuler, the lessor, ‘in further consideration of such rental payments, now grants unto said James, the first and prior right and option to re-lease said premises for an additional term of five (5) years from the expiration of this lease upon the same terms and conditions set forth and specified.’ (Our italics.)
“The determination of this cause depends upon the proper construction of this clause in the lease. The appellee contends that this clause in the lease, giving to the lessee the'first and prior right and option to re-lease said premises for an additional term of five years, gives to the lessee the-absolute right to re-lease said premises for such additional term. The answer and cross complaint both allege that the appellee served notice before the expiration of the lease that she intended to exercise this option.
“The appellant contends that the words ‘first and prior’ in the lease mean that the lessee was given the right to re-lease the premises ‘ahead’ of others, provided the appellant did not want the land himself or had decided to release said premises; so the meaning of the words ‘first and prior’ in connection with the option is the decisive point in the case.
“In the case of Blythe et al., Receiver, v. Gibbons (1895), 141 Ind. 332, 344, 35 3ST. E. 557, the Supreme Court said:
“ ‘Whether we are considering an agreement between parties, a statute, a constitution, a judgment or order of court, with a view of its interpretation, the thing which we are to seek is the thought which it expresses. To ascertain this, the first resort in all cases is the natural signification of the words employed, in the order of grammatical arrangement in which the framers of the writing have placed them. If thus regarded, the words embody a definite meaning, which involves no absurdity and no contradiction between different parts of the same writing, then that meaning, apparent on the face of the writing, is the one which alone we are at liberty to say was the one intended to be conveyed. In such a case there is no room for construction. That which the words declare as the meaning of the writing is the true one, and neither courts nor legislatures have a right to add to or take away from that meaning.’
“Applying this principle of construction, we hold that the words ‘first and priori mean that if the lessor decides to re-lease the premises for a further term, the lessee shall have a first and prior option to re-lease the same. To give this language any other interpretation would do violence to the common rules of construction of written instruments. We cannot say that the parties to this lease put the words ‘first and prior’ into this lease intending that they mean nothing. If the lessor had intended to give the lessee the right at his option to release said premises, he would have positively said so; and he would not have used the words ‘first and prior,’ for there would have been no necessity for such language. Ordinary usage of the English language would not permit any other interpretation. We are sustained in this view by the greater weight of authorities.” (p. ’88.)
. In the case of Cloverdale Co. v. Littlefield, 240 Mass. 129, 133 N. E. 565, the Massachusetts Supreme Judicial Court had under consideration a lease which contained this provision: “The party of the fir,st part agrees to give the Cloverdale Company, party of the second part, the first right to re-lease for a term of three more years at the expiration of the present lease on the same conditions and terms as herein mentioned.” In the construction of this clause, the court said:
' “The ruling that ‘the lessee was entitled to a renewal of the lease’ was plainly right if the word ‘first’ does not qualify and make conditional the ‘right to release’ given to the lessee by the covenant of the lessors. We are of opinion that the word ‘first’ cannot be rejected as surplusage in determining the meaning of the words ‘first right to re-lease’ contained in the agreement if regard be given to the general rule that the intention of parties to a written contract is to be ascertained upon a consideration of the several words, phrases and parts of the instrument, and of their effect upon it as a whole. So regarded, the phrase ‘first right to re-lease’ in common use plainly imports not an absolute and unqualified right in the lessee to have a re-lease at the expiration of the existing lease, but merely a preferential right to have a release at the option of the lessee in the event the lessors then desired to lease the property and did not then desire to sell it or to occupy it themselves.” (And cases cited.) (p. 130.)
In B. I. Realty Co. v. Terrell, 254 N. Y. 121, 172 N. E. 262, the lease in question contained the following clause: “said party of the second part is given first privilege to buy said property for the sum of ($14,000) fourteen thousand dollars.” The Tenant notified the owner that it elected to exercise the option to purchase. The owner refused to convey, whereupon the tenant brought an action for damages suffered by the failure of the owner to convey. The court said:
“The contention of the appellant is that the clause is imperfect and incomplete and does not contain an absolute agreement to sell the premises to the lessee for $14,000 and that it only obligated the lessor to convey to the lessee in case he wished to sell to another during the term of the lease for $14,000, in which event he was bound to give the lessee the ‘first privilege to buy’ the premises for the price specified.
“The respondent’s position is that the legal effect of the words is to give the lessee an absolute right to purchase the premises at the price named. If that position is correct, the lessor was deprived of the right to determine whether or not he wished to sell.
“The use of the words ‘first privilege’ indicates that the parties must have had in mind some other opportunity of the lessor to sell and that the lessor was not prevented from selling to another if he desired. It bound the lessor, however, not to sell to another for that price without first giving the lessee the opportunity or privilege to purchase the property at the price specified, and, if the lessee did not exercise the privilege to purchase, the lessor was free to sell to any one else. The words ‘first privilege’ did not grant an absolute option to the lessee to purchase the premises at any time during the term of the lease. The right of the lessee to purchase depended upon the lessor’s desire to sell. If the lessor desired to sell at the price named, then the lessee was to have the ‘first privilege to buy’ at the figure specified.
"In construing the clause in question the court is required to give some meaning to all the words used. To construe the clause in accordance with the contention of the respondent would require that the word ‘first’ be eliminated. With that word eliminated, the privilege to buy would be absolute and enforceable. (Sandberg v. Reilly, 223 App. Div. 57 [227 N. Y. S. 418]; affd., 250 N. Y. 547 [166 N. E. 319.]) Therefore, it'must have been used to prevent the agreement from constituting an absolute -option to sell. The phrase ‘first privilege to buy’ and the words ‘privilege to buy’ have an entirely different meaning; one is conditional.and the other absolute. This court has- decided in actions for specific performance that agreements substantially like the one in question could not be enforced in an action in equity. (Buckmaster y. Thompr, son, 36 N. Y. 558; Burbach v. Sinram, 237 -N. Y. 600 [143 N. E. 759.]) The same conclusion has been announced by other courts of the state. (Sargent v. Vought, 194 App. Div. 807 [185 N. Y.. S. 578]; Koppi v. Gallagher, 133 Misc.Rep. 79 [230 N. Y. S. 680]; affd., 223 App...Div. 713.[227 N. Y. S. 836]; Holloway v. Schmidt, 33 Misc. Rep. 747 [67 N. Y. S. 169].)” (p. 124.) ■
In Sander v. Schwab, 315 111. 623, 146 N. E. 509, a first option agreement was held to be too indefinite to be specifically enforced.;
In the-case before us the “first option” clause did not deprive the' lessor of- the right to. sell the property, the right to occupy it, the right to remodel the property or to tear it down if he chose to do.so.-'.The lessor.wa.s bound, however, not to lease the property to another without giving the lessees the opportunity or privilege to lease the property upon the terms specified. The right of the lessees to lease the property for a new term depended on the lessors’ desire to make a new lease. Any other construction would deprive the owner of the right to determine whether he wanted to make other use of the property.
We have considered other questions argued in defendants’ brief, but do not think they call for extended comment. Finding no error in the record, the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action against a bank to recover damages alleged to have been sustained by reason of loss of gold coins and currency deposited in a rented safety-deposit box. Defendant prevailed, and plaintiff appeals.
Between July 1, 1932, and May 21, 1935, inclusive, plaintiff deposited gold coins and currency in a safety-deposit box which he rented from the bank under an oral contract. The contract was later reduced to writing. Part of the gold coins had been given to plaintiff for deposit by a friend. The total deposit was alleged to have consisted of $2,000 in currency and $1,024 in gold coins. When plaintiff examined the box on September 28, 1935, the coins and currency were missing. Plaintiff did not return from the vault for some time and an employee of the bank entered the vault and found plaintiff had fainted and was lying on the floor. Several weeks later, plaintiff returned to his box with an attorney and found a package of nails in the box.
The second amended petition, in substance, alleged: Prior to August 1, 1932, plaintiff rented a safety-deposit box from the defendant under a written agreement now in the possession of the defendant, and continued to so lease the box until the 28th day of June, 1936; within that period he made deposits at various times in the total sum of $3,025 in lawful money of the United States; he did • not at any time on or after the 23d day of February, 1934, and prior to the 28th day of September, 1935, examine or inspect the c'ontents of a package containing the sum of $2,775, and that he did not, after May 21, 1935, and prior to the 28th day of September, 1935, examine or unwrap the package containing the sum of $250; upon examining the box on September 28, 1935, both packages had been withdrawn; plaintiff had no knowledge as to when the money was withdrawn; neither the plaintiff, his agents, assignees nor deputies had, prior to said date, or on said date, withdrawn any of the coin or currency; the vault in which the safety-deposit box was kept was at all times maintained and managed by the defendant, its agents, servants and employees; defendant does not know the names of the person or persons who illegally and unlawfully withdrew the money; on October 23, 1936, plaintiff made written demand on defendant for the return of the currency and coin, and defendant refused to deliver any part thereof.
Defendant’s answer alleged plaintiff had rented safety-deposit box No. 128 from the defendant under an oral agreement which was reduced to writing on June 29, 1936. The pertinent portion of the contract read:
“The liability of the bank is expressly limited to the exercise of ordinary diligence to prevent the opening of the within-mentioned safe during the within-mentioned term, or any extension or renewal thereof, by any person other than the renter or his duly authorized representative, . . .”
The answer further, in substance, alleged: Defendant fully performed all of its obligations and duties under the contract; on June 29, 1936, plaintiff executed a release, which was as follows:
“Kansas City, Kan.,
“June 29, 1936.
“I hereby acknowledge the receipt and certify that all the papers and other property placed within the safe-deposit box No. 128 in the safe-deposit vault of The Twin City State Bank of Kansas City, Kansas, in pursuance of my contract therefor, have been duly and properly withdrawn therefrom and are in the owner’s full possession, and said bank is discharged from all liability in respect thereto, two keys to said box being surrendered.
Signature C. Schmidt.
Witness:
E. Magnuson.
Max Letjpold.”
The answer contained a general denial as to all matters contained in the amended petition except such as were admitted, stated and qualified by the answer. The answer was verified.
In the reply plaintiff denied defendant had performed its obligations under the contract and, in substance, further alleged: Defendant maintained or managed the vault in a negligent and careless manner, in that it failed and neglected to take reasonable or proper precautions to safeguard the contents of the box and had failed to deliver the contents thereof upon demand. He did not sign the release, but if he did sign it, the signature was procured by the fraud of the defendant, its agents, servants and employees; he could not read the printed matter on the release and was orally informed it was necessary to sign the release in order to be relieved of liability for future rentals, which was the only purpose of requesting his signature; the statements were false and were fraudulently made for the purpose of procuring the release; plaintiff relied upon the statements; if the agent of defendant making the statements believed them to be true, which plaintiff denies, the release was executed as' a result of mutual mistake.
It will serve no useful purpose to narrate all the evidence in detail. Plaintiff’s evidence in chief conformed substantially to the allegations contained in the second amended petition, except as to the dates upon which he last inspected the box. We shall presently discuss the evidence concerning inspections of the box by plaintiff. We may, however, now state that the variation between the allegations in the petition and the proof touching the inspection of the box by plaintiff become highly important. At the conclusion of plaintiff’s evidence, the defendant filed the following motion:
“Now at the close of the plaintiff’s evidence comes the defendant and moves the court to strike from the record all the evidence offered on behalf of the plaintiff concerning any gold coins in the safety-deposit box of the plaintiff which remained there thirty days after the promulgation of executive order No. 6260, promulgated August 28, 1933, insofar as said gold coins exceeded an amount in the aggregate the sum of one hundred dollars belonging to any one person.”
Defendant also demurred to plaintiff’s evidence upon the ground the evidence failed to overcome the bar to plaintiff’s recovery arising from the release admitted to have been executed by the plaintiff.
The court withheld its ruling on the motion and demurrer until all testimony in the case was introduced. The defendant proceeded with its proof. Its evidence disclosed the vault and safety-deposit box were managed and safeguarded with modern accepted methods after May 31, 1935, and that the bank had no knowledge of the mystery of the alleged loss. The evidence also disclosed an inspection of plaintiff’s box by an expert showed the box had never been opened by use of force.
In rebuttal, plaintiff showed that an employee'of the bank by the name of Howard F. Yearin had charge of the general ledgers and posted the individual ledgers, and that one person should not do both. Plaintiff also offered in rebuttal the criminal appearance docket and the journal entry of judgment in the case of State v. Howard F. Yearin. The purpose of that offer was to show that Yearin, a former employee of the defendant bank, was convicted of embezzling funds from the bank and that the information charged Yearin with embezzling the sum of $17,500 during the period beginning the first day of July, 1934, and ending June 1, 1935. In connection with that proffer, the record discloses the following:
“Mr. Gates: I object to that as incompetent, irrelevant and immaterial.
“The Court (during argument): Do you claim that this man Yearin took money from the safe-deposit boxes?
“Mr. Weeks: No.
“The Court: The objection to the offer will be sustained.”
Plaintiff contends he was not obliged to prove who obtained the money from his box and that the proffered testimony was proper for the purpose of showing the bank was negligent in having in its em-. ploy a man of Yearin’s character. The testimony disclosed Yearin, on several occasions prior to June 1, 1935, had entered the vault by himself, at plaintiff’s request, and had brought the safety-deposit box to the plaintiff, outside of the vault. There was no evidence the money disappeared on those occasions. Yearin’s employment in the bank ceased on the 31st day of May, 1935.
Plaintiff’s principal contention is defendant’s evidence did not show defendant exercised reasonable care in the management and control of the vault and safety-deposit box between May 21, 1935, and the date of Yearin’s discharge, on May 31, 1935. The difficulty with plaintiff’s contention in that respect is that the bank, in view of plaintiff’s own evidence, was not obliged to introduce testimony concerning its diligence in the management, care and control of the vault and safety box prior to June 1, 1935. Plaintiff had definitely testified, contrary to the allegations in his second amended petition, that he had gone to his box on several occasions during the months of June, July and August of 1935, and that the large package which contained $2,775 and the small package which contained $250 were both in the box. He testified he saw both packages on those visits in June, July and August of 1935 and that both were still “all right.” In view of plaintiff’s testimony, the employment of Yearin did not establish negligence on the part of defendant which caused or contributed to plaintiff’s damage.
Plaintiff testified he signed the release. Evidence that his signature to the release was obtained by fraud or mutual mistake was very meager. But we need not discuss the sufficiency of that testimony. The ruling denying recovery does not appear to have been based upon the release.
Relative to the gold coins, plaintiff admitted he made no report to the United States government concerning the gold, and received no permission from the government to hold gold coins.
At the conclusion of- the trial the court ruled upon defendant’s motions and demurrers as follows:
“(1) That defendant’s two motions to strike, being all of the written motions to strike, filed at the close of plaintiff’s evidence and directed to plaintiff’s evidence as to the alleged loss of the gold coins from his safety-deposit box, be and the same are each respectively hereby sustained for the reason that the title, if any, of the plaintiff and Maude Heath in and to all of said gold coins alleged to have been lost from plaintiff’s safety-deposit box was extinguished in them and passed to and vested in the United States of America by virtue of the laws of the United States then in force and effect and for the further reason that under the laws of the United States then in full force and effect, neither the plaintiff or Maud Heath could have lawfully acquired title to any gold coins alleged to have been deposited in said safety-deposit box after the date of August 28, 1933.
“ (2) That the defendant’s demurrer as to gold coins filed at the close of the plaintiff’s evidence be and the same is hereby sustained for the reason that the plaintiff has failed to prove any measure of damages or value of the gold coins alleged to have been lost and for the reason that the title, if any, of the plaintiff and Maud Heath in and to all of said gold coins alleged to have been lost from plaintiff’s safety-deposit box was extinguished in them and passed to and vested in the United States of America by virtue of the laws of the United States then in force and effect.
“(3) That the defendant’s general demurrer to the plaintiff’s evidence, filed at the conclusion of plaintiff’s evidence, be and the same is hereby overruled.
“(4) That defendant’s demurrer to all of the evidence offered by the plaintiff, filed at the close of all of the evidence, be and the same is hereby sustained for the reason that the evidence offered on behalf of the plaintiff has failed to prove nor does it tend to prove facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant in that; that there is no showing of negligence on the part of the defendant constituting the proximate cause of the alleged loss of the plaintiff, if any.”
The motion to strike the evidence pertaining to gold coins was properly sustained. (12 U. S. C. A., § 95, Executive Order 6260, §§ 3, 4, 5; 31 U. S. C. A., § 443; Uebersee Finanz-Korporation, etc., v. Rosen, 83 F. 2d 225; Nortz v. United States, 294 U. S. 317, 79 L. Ed. 912; United States v. 98 $W United States Gold Coins et al., 20 Fed. Supp. 354.)
Furthermore, if the court properly sustained the general demurrer to plaintiff’s evidence, plaintiff was not entitled to recover for the loss of either the gold coins or currency. Plaintiff insists the relationship of the parties was that of bailor and bailee. Defendant contends the relationship was more properly characterized as that of lessor and lessee. We do not think it necessary to define the precise legal relationship between the parties. The question of the bank’s liability was tried and determined upon the issue of t-he bank’s negligence. Plaintiff at all times had possession of two keys to his box. Defendant at all times had possession of the guard key, also referred to as the master key. Both sets of keys were required to obtain access to the contents of the box. The bank, therefore, did not have exclusive possession of the box nor of its contents: There was no evidence anyone had tampered with the box. The evidence of an expert was that there was no indication of tampering. After, plaintiff introduced his evidence in chief and made a prima facie case, the court required defendant to proceed with its proof on the subject of due care. Its evidence showed that in safeguarding the contents of the box it had employed such measures as were customarily used in the community by other banks operated under modern methods and that it had no knowledge of the mysterious disappearance of the coins or currency. To defendant’s evidence the plaintiff did not demur, but undertook, in accordance with the issues joined by the pleadings, to show negligence on the part of the defendant. In that attempt plaintiff failed. In support of his contention the defendant was negligent, plaintiff indulges in a presumption which is based upon another presumption or presumptions. A conclusion of negligence cannot be reached in that manner. (Railway Co. v. Rhoades, 64 Kan. 553, 68 Pac. 58; Lukens v. Kellogg, 127 Kan. 568, 274 Pac. 225; Shoeman v. Temple Safety Deposit Vaults et al., 189 111. App. 316; 20 Am. Jur. 168, Evidence, § 164.)
Assuming the relation of the parties was that of bailor and bailee, as contended by plaintiff, defendant’s duty was to exercise ordinary care and diligence, that is, such care and diligence as a reasonably prudent person or corporation would exercise under like circumstances in safeguarding the contents of the box. Defendant was required to take such measures to safeguard the property upon deposit as are customarily used in the community by ordinarily careful institutions, fairly comparable in size and other conditions with the defendant bank. (67 C. J., Warehousemen and Safe Depositaries, § 300; 27 R. C. L., Warehouses, §45; Shoeman v. Temple Safety Deposit Vaults, supra; Young v. First Nat. Bank of Oneida, 150 Tenn. 451, 265 S. W. 681, 40 A. L. R. 868; Morgan v. Bank, 390 N. C. 209, 129 S. E. 585, 42 A. L. R. 1299. See, also, Annotation, 40 A. L. R. 874, 878.) ;
Plaintiff contends defendant is held responsible for more than the exercise of reasonable diligence and care. He contends defendant is required to explain the disappearance of the property. There is some authority to that effect. However, it appears to be predicated upon the theory that the bank has the exclusive possession of the ■property and therefore also has the exclusive means of knowing what becomes of it. It appears to us the facts do not warrant the theory. As heretofore indicated, the bank did not have exclusive access to the box. It did not have exclusive possession of the property in the box, nor did it have the exclusive means of knowing what became of it. If plaintiff’s theory of the bank’s responsibility be sustained, then a depositor may remove the contents from his box, in the privacy of his booth, and hold the bank liable by reason of its inability to explain the disappearance. It seems to us such a rule would place too great a burden upon the depositary. It would • practically make the bank a guarantor of the safety of funds or property deposited without giving it exclusive control thereof. We think the better rule is the one which holds the depositary to the .exercise of reasonable diligence and care for the preservation of the property entrusted to it.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.;
This was an action by a lumber company to recover from a contractor and the surety on his bond for materials furnished in the construction of a schoolhouse. Plaintiff sued for the balance due on the contract, $1,777.50, plus interest and costs. The court rendered judgment against the contractor, Carpenter, for $1,833.80 and against the surety company for $633.80 — the total recovery against both defendants not to exceed $1,833.80. From this judgment plaintiff appealed and the defendants have filed a cross-appeal.
On June 14, 1937, the defendant, Carpenter, entered into a contract for the construction of a school building at a stipulated contract price of .$18,135. The contractor, with the defendant surety company as surety, executed a bond to the state of Kansas for the benefit of the persons entitled thereto in the sum of $18,135, the condition of the obligation being that if the contractor should well and truly pay all indebtedness incurred for supplies, materials, or labor furnished or consumed in connection with the construction of the public building in question, then the obligation was to be null and void, otherwise in full force and effect.
In the answer of the defendant, Carpenter, it was alleged that under the agreement between the plaintiff and Carpenter the plaintiff was to assist Carpenter to secure the job by making up the bid for the contract, and would back him with money to carry on the job and protect him against loss, that defendant was to buy all lumber and material from plaintiff, that plaintiff was to have the profits from the lumber, and the defendant Carpenter was to have the profits from the labor and work and the usual contractor’s profits.
The defendant surety company in its answer stated:
“Further answering herein this defendant adopts and makes a part of its answer herein the answer of its eodefendant, C. F. Carpenter, as fully as though said allegations were set out in this answer and alleges that by reason of facts therein set out this plaintiff was a partner or joint adventurer of the said Carpenter and under the facts therein states this defendant is not liable to the said plaintiff.
“Plaintiff further says that on the letting of said contract to the said Carpenter a surety bond was required of the said defendant Carpenter and he applied to the agents of this defendant, the Long-Sherman Agency in the city of Hutchinson to furnish such bond. That the said agent informed said Carpenter that his financial statement did not show sufficient assets to enable the defendant, Carpenter, to carry on said work and take care' of any loss or shortage which might be on said job, and that on such showing it would be impossible to write the bond in the amount required, and thereupon the said Carpenter informed said agent that the plaintiff herein was interested in said contract and would stand back of him to enable him to carry out and complete said contract. That the said agent of this defendant went with the said Carpenter to the office of the said plaintiff and informed the general manager thereof, J. L. Powell, that the defendant could not write the bond as the said Carpenter did not ha-ve sufficient assets to carry on said contract and protect against any possible loss therein and thereupon the said J. L. Powell informed the said agent that they were backing Carpenter and would see him through. That they were willing to place to his credit a sufficient sum to enable him to carry on with said contract and to protect him against any loss on the bond that Carpenter was required to give, and after some discussion it was agreed that the sum of $1,200 would be a sufficient amount. That the said agent required that some written statement be made so that he would know that the bank would advance said amount on demand, and the said plaintiff executed and delivered to this defendant for use to the Central State Bank a written statement, a copy of which is hereto attached, marked “exhibit A,” and made a part hereof. That it was agreed and understood that said credit was to be available to the said Carpenter during all of said time to pay said bills and protect this defendant against any loss on said bond.
“That thereupon and on the strength of the said agreement to stand back of the said Carpenter and the furnishing of said amount of credit to the said Carpenter, this defendant executed said bond.
“Defendant further alleges that the said bank did furnish certain credit to the said Carpenter on notes signed by the said Carpenter and said plaintiff and that the said Carpenter by the direction of said plaintiff used the money paid to him by said school district to pay said notes instead of paying debts that might become a liability on said bond.”
It was alleged that by reason of the premises that as between the defendant surety company and the plaintiff, the plaintiff is primarily liable for any unpaid debt incurred by Carpenter in the performance of his contract.
The plaintiff lumber company owned five yards, the main office being at Wichita. Powell was the manager of the Hutchinson yard. A school district in Reno county advertised for bids for a new schoolhouse. The defendant Carpenter entered into a verbal agreement with Powell to buy the lumber and other building materials from the plaintiff company, if Powell would assist Carpenter in getting the contract. Employees of the lumber company assisted him in figuring the estimates upon which his bid was based, secured a check of $1,000 to accompany the bid, and Carpenter, being the low bidder at the letting, was awarded the contract. Before the contract could be entered into it was necessary that Carpenter furnish faithful performance and statutory lien bonds for its completion. The plaintiff had arranged a credit of $500 at the bank for Carpenter. The circumstances under which the bond was executed by the surety company is shown by the following excerpts from the testimony.
Long, local agent for the defendant surety company, testified:
“A. Down at Mr. Powell’s office, I told Mr. Powell that $500 wouldn’t be enough to bond this job, and he said, ‘What do we need to get a bond written on it?’ I said, ‘You will need at least $1,200:
“I told Powell $500 cash in the bank would not be enough to write a bond on Carpenter for this job.
“Q. Did Mr. Powell make any statement to you about backing Mr. Carpenter or he was going to see him through or anything of the kind, in your presence? A. No, sir.
“Q. What did you tell him? A. I told him it would be necessary to file a line of credit giving the firm of the Carpenter Construction Company the necessary working capital to enable them to get their operations started.”
Powell, local agent for plaintiff, testified:
“Long said at that time that he did not think that the bond could be .written with just $500 shown as working capital; that he did not believe that the bonding company would feel that this big an operation could be commenced, started and then go along with -(¡hat amount of capital, and that that would be an insufficient amount — and Long said that he thought if it could be arranged whereby Carpenter could have $1,200, that he felt sure the bonding company would go ahead and bond him for the job.
“I asked Long if it had to be in cash. Long said no, not necessarily. That ‘if you could give' a letter to my company so that they could have some assurance that Mr. Carpenter would have that much money to start his operations on that would be sufficient.”
Long, agent for the surety company, dictated the following letter which was typed and signed by Powell as manager of the lumber 'company:
“Central Surety & Insurance Corporation
Kansas City, Missouri.
Dear Sirs — We, the undersigned, in connection with the building of School District N. 23 Reno county, Kansas, as per plans and specifications prepared by Smith and English, hereby agree to extend to C. F. Carpenter, contractor, our name for the purpose of procuring a line of credit with the Central State Bank, Hutchinson, Kan., to the extent of $1,200.
Very truly, The Ortmeyer Lumber Co.,
By J. L. Powell, Manager."
Thereupon the bond sued on in this section was executed by the defendant surety company.
On September 17, 1938, the trial court filed a written opinion in the case, and judgment was entered. Thereafter the judgment was set aside, further testimony was taken, and on April 22, 1939, a second written opinion was filed. We quote from the last opinion:
“After Carpenter was awarded the contract for the erection of the schoolhouse and from time to time' as the necessity arose, Powell endorsed notes for Carpenter at the Central State Bank, at one time the total amounting to $1,200. All these notes were signed by Carpenter, The Ortmeyer Lumber, by J. G. Powell, manager, and by J. G. Powell as an individual, co-makers, and all have been paid by the defendant Carpenter.
“The Ortmeyer Lumber Company, through its Hutchinson yard sold building materials to Carpenter for the erection of the schoolhouse, and there is now due and owing Ortmeyer Lumber Company from Carpenter the sum of $1,833.80. The Ortmeyer Lumber Company has brought this action to collect on the bond this balance with interest at six percent from November 19, 1937. Judgment has heretofore been rendered against Carpenter for that amount on September 17, 1938.
“The defendant bonding company contends that the Ortmeyer Lumber Company and Carpenter, the contractor, were engaged in a joint venture, rendering each liable for the debts thereof. The evidence does not support, such a conclusion in view of the Kansas decisions on the subject. The plaintiff assisted in securing the' contract and sold lumber for carrying it out, beyond that it had no interest in either the profits or losses nor no control whatever over the subject matter of the alleged venture, the erection of the schoolhouse. The plaintiff’s interest was solely in the profits it would receive from the sale of its materials.
“The evidence in the case on trial does not warrant a conclusion that borrowing money, or otherwise' pledging the credit of the plaintiff was usually incident to the management of one of the plaintiff’s local yards, and there is not the slightest evidence that defendant had any reason to believe that it was.
“However, another question still remains to be answered: Can the plaintiff now take advantage of the unauthorized act of its agent? Does not the' maintenance of this action, after the discovery of the agent’s act in writing the letter, amount to a ratification.
“In the case on trial, Powell made a contract with the surety company for the benefit of his principal, the plaintiff, to furnish $1,200 credit to a third person, in order that the third person might be able to buy lumber and building materials from the plaintiff, and relying on that promise the defendant surety company executed the bond. Now, plaintiff cannot maintain this action without ratifying the unauthorized act of its agent, and when the act is ratified, the plaintiff owes the surety company $1,200, which amount deducted from the balance due the plaintiff from the contractor, whose bills the surety has agreed to pay, leaves a balance due the plaintiff of $633.80, for which amount with interest at six percent from November 19, 1937, judgment will be rendered at the next motion day, April 22, 1939.”
Defendants contend that the plaintiff lumber company and the contractor were engaged in a joint venture, that the defendant Carpenter has suffered the loss of his labor, and as the plaintiff has had its profit for the sale of its lumber, it should suffer the remainder of the loss. As shown above, the trial court found the evidence did not support the theory that the plaintiff and the contractor were engaged in a joint venture. We think this conclusion was justified by the record.
Defendants also contend that there was an agreement between Powell, local manager of the plaintiff, and the defendant surety company, whereby plaintiff guaranteed to protect the defendant surety company to the extent of $1,200, against any loss on the faithful performance bond executed by the surety company. Did the plaintiff lumber company agree to save the surety company harmless from its liability on the surety contract to the extent of ■$1,200?
The letter of the plaintiff lumber company, dated June 15, 1937, addressed to the surety company, recites that the lumber company agreed to extend to the contractor, Carpenter, “our name for the purpose of procuring a line of credit” with the Central State Bank to the extent of $1,200. What was the meaning of the words “a line of credit” as used in this letter? As we have seen, the letter was dictated by Long, agent of the surety company, and typed by Powell, agent of the plaintiff lumber company. Long testified that he told Powell in order to secure the bond for Carpenter, “it would be necessary to file a line of credit giving the firm of the Carpenter Construction Company the necessary working capital to enable them to get their operations started.” Parker, agent for the lumber company, testified that the surety company required some assurance that Carpenter would have $1,200 “to start operations on.” It thus appears that the persons who formulated the letter understood the words “a line of credit” as used therein to mean the plaintiff was to assist the contractor in getting a working capital to start operations on the contract. Thus we fail to find anything in the letter or in the testimony of the parties concerned that coüld be construed to be an agreement on the part of the plaintiff to indemnify the surety company against ultimate loss on the surety bond.
It is to be remembered that the defendant is not a gratuitous, but a compensated surety. It is engaged in the business of executing surety contracts for a stipulated premium. The corporate surety’s contract is usually drafted by its attorneys after an investigation of the risk and upon payment of the appropriate premium. We have held that such compensated or corporate surety will not receive the benefit of strictissimi juris in the interpretation of its contracts. (Hull v. Bonding Co., 86 Kan. 342, 120 Pac. 544; Lumber Co. v. Douglas, 89 Kan. 308, 131 Pac. 563; State v. Construction Co., 91 Kan. 74, 136 Pac. 905.)
In the situation here presented the agent of the surety company had examined the risk. He knew the contractor’s financial rating. He dictated the letter signed by the lumber company. Thereafter it executed the bond sued upon. It had the opportunity to limit the amount of its liability. It would have been an easy matter to have provided in the bond the extent of its obligation as now contended for on this appeal. With full knowledge of the facts it accepted the premium and assumed the obligation specified in the bond. The record discloses no valid reason why such obligation should not be enforced.
The trial court found that the plaintiff could not maintain this action without ratifying the unauthorized act of its agent, Powell. We are unable to agree that the case turns on the question of ratification. The question whether Powell, the agent of the plaintiff, had authority to extend a line of credit to the contractor, and the question of ratification of the unauthorized act on his part, seems to be predicated on the assumption that the agreement on the part of the plaintiff was to indemnify the surety company against ultimate loss on the bond. The argument thus assumes the main point at issue. We have found that the agreement was to establish a line of credit to assist the contractor in getting a working capital to start operations on the contract.
The judgment against the defendant Carpenter for $1,833.80 is affirmed. The judgment against the defendant surety company for $633.80 is remanded with directions to enter judgment against the surety company for $1,833.80, the judgment to recite that the total recovery against both defendants shall not exceed $1,833.80 with interest. The judgment against the surety company as thus modified is affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was a real-estate mortgage foreclosure action. Neither the plaintiff, holder of the first mortgage, nor the mortgagors, are involved in this appeal. The controversy is between a defendant, a subsequent owner of the land, and the holder of the second mortgage. The latter, on its cross petition, obtained a personal money judgment against the defendant, Geo. D. Rathbun, upon a written extension agreement. Only that defendant appeals.
A brief narrative of events may be helpful. The foreclosure action was instituted by the Federal Land Bank of Wichita, the holder of the first mortgage. In 1924 Frank F. Girtch and his wife obtained a loan of $5,200 from the plaintiff, and gave as security therefor an amortization note, secured by a first amortization mortgage on 160 acres of land in Morris county. In 1933 they obtained a loan of $1,700 from the Land Bank commissioner, acting pursuant to an act of congress, and gave their note therefor. That note was secured by a second mortgage upon the same real estate. Subsequently, and on August 20,1935, the title to the land was conveyed by Girtch and wife by warranty deed to the appellant, Geo. D. Rathbun. The deed recited it was made subject to the first and second mortgages, but it did not provide for an assumption of the mortgages by Rathbun. On December 15, 1936, Rathbun made written application to the bank as the agent of the Federal Farm Mortgage Corporation, which latter corporation was, by an act of congress, the owner and holder of the second note and mortgage taken in the name of the Land Bank commissioner, for an extension to August 1, 1937, of the time within which to pay all installments, advancements and accumulated interest “which may be past due and owing to the Federal Farm Mortgage Corporation upon the date of the granting of the extension.” The application for extension, recommendation and acceptance read:
“Amount of Loan, $1,700.
“George D. Rathbun P. O., Manhattan, Kan.
“Owner’s Full Name Town State
“To The Federal Farm Mortgage Corporation and The Federal Land Bank of Wichita, as Its Agent:
“The undersigned, owner of the land securing the above-numbered loan, hereby applies for an extension, to August 1, 1937, of the time for payment of all installments, advancements and accumulated interest which may be past due and owing to' the Federal Farm Mortgage Corporation upon the date of the granting of this extension by the corporation as shown by the records of the bank. It is understood and agreed that this extension shall be effective as of the date of its granting by the corporation; that the granting of such extension shall not operate to modify the provisions of the note(s) and mortgagees) securing this loan, except as herein expressly provided, nor the rights or liabilities of any of the parties thereto or third parties liable for the payment thereof; and that the rights of all such parties with respect to each other and with respect to said note(s) and mortgage (s) and the indebtedness are hereby expressly reserved. It is also understood and agreed that in the event of failure to comply with the covenants, conditions and provisions of said note(s) and mortgage (s) the corporation may, at its option, declare all items extended hereunder, with interest, immediately due and payable. In consideration of the granting of this extension, the undersigned hereby agrees to pay, at the maturity of such extension, all of the items extended hereunder, with interest thereon as provided by the emergency farm mortgage act of 1933, as amended, and the -rules and regulations of the Farm Credit Administration; to pay the balance of the indebtedness evidenced and secured by said note(s) and mortgage(s) at the times and in the manner therein provided; and to observe and perform, or cause to be performed, each and all of the other covenants, conditions and provisions of said note(s) and mortgages(s).
"Witness: Fred W. Schrader.. Geo-. D. Rathbun, Owner.
“December 15, 1936.
"recommendation
“Pursuant to the action of its board of directors, the granting of the extension above applied for is hereby recommended.
“The Morris County National Farm Loan Association,
Attest: By Walter Ingaire, President.
“J. C. Richards, Secretary-Treasurer.
“agreement
“Subject to the terms and conditions expressed in the foregoing application, the Federal Farm Mortgage Corporation hereby grants the extension applied .for therein, on this 4th day of January, 1937.
Federal Farm Mortgage Corporation,
By The Federal Land Bank of Wichita,
Its Agent,
: By F. D. Lance, State Supervisor,
- (Italics ours.) ■ Loan Servicing Division.”
In 1939 each of the loans having again been permitted to become delinquent, the bank instituted a foreclosure action. The Federal Farm Mortgage Corporation was made a party defendant and filed its answer and cross petition to foreclose its second mortgage. Its note, mortgage, application for extension and its acceptance thereof were made a part of its cross petition. All defendants except Geo. D. Rathbun defaulted. Rathbun filed separate unverified answers to the petition and cross petition. The Federal Farm Mortgage Corporation filed a motion for judgment upon the pleadings, and specifically directed the attention of the court and appellant — the appellant being an attorney who represented himself — to the fact that it was entitled to judgment upon the pleadings for the reason the answer of Rathbun was not verified, as required by G. S. 1935, 60-729. Rathbun asked and was granted leave to verify his answer, and the motion was overruled. He did not verify his answer by affidavit, as required by the statute, but had the clerk of the court attach to his answer the following:
“State of Kansas, County of Morris, ss.
“The above answer was sworn to by defendant, May 13, 1939.
“(Seal) W. T. Williams, Clerk of the Court.”
The pertinent portion of G. S. 1935, 60-729, provides:
“In all actions, allegations of the execution of written instruments and endorsements thereon . . . shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent or attorney. In all actions founded on written instruments for the unconditional payment of money . . . the answer shall be verified by the defendant, his agent or attorney.”
Obviously appellant had not complied with the statute. The cross petitioner later filed its reply. During the course of the trial the court, after examining the pleadings, repeatedly warned appellant his answer put nothing in issue. Appellant now concedes he heard the trial court say “there was nothing put in' issue,” but he contends appellee waived the lack of verification by filing a reply. The court found no issues were joined by appellant’s answer, and that appellee was entitled to a personal judgment against Rathbun as alleged in appellee’s cross petition. In view of the final conclusion we are obliged to reach in any event, we prefer to rest our decision upon the effect of the extension agreement.
Appellant does not deny he sought an extension agreement nor that he signed the application for an extension. He contends the extension agreement is involved, ambiguous, meaningless, and does not assume the mortgage debt. We shall not take time to discuss the various contentions touching the alleged ambiguity of the application for extension. Analysis of those contentions reveals they are all predicated upon highly technical rules of grammatical construction and punctuation and not upon the fact appellant made no application for an extension or that no extension was granted. That an extension was obtained cannot be denied. Nor can it be successfully denied the extension was granted by reason of appellant’s application and the acceptance thereof by appellee. Had appellee brought an action to foreclose its second mortgage prior to the expiration of the extension agreement, we anticipate appellant would not be insisting the agreement for extension was ambiguous and meaningless. It is also obvious that under such circumstances appellant would have been entitled to receive protection against such immature action.
The primary rule in construction of contracts is never that of punctuation alone, but rather that of intention as disclosed by the instrument as a whole. The intention may be best ascertained by considering not only punctuation, or by resorting to literal interpretation, but by considering all language employed, circumstances existing when the agreement was made, the object sought to be attained and other circumstances, if any, which tend to clarify the real intension of the parties. (Berg v. Scully, 120 Kan. 637, 245 Pac. 119.) So construing the application and its acceptance, we have no difficulty in determining the intent of the parties. They obviously intended that “in consideration of the granting of this extension,” the undersigned agreed to pay, at the maturity of such extensions, all items extended, with interest thereon, etc.
Appellant contends there was no consideration for the extension agreement. The contention is untenable. By the granting of the extension appellee parted with the legal right to foreclose its mortgage at a prior date under the provisions of the mortgage contract. That was ample consideration.
Appellant finally contends the extension agreement is void because unconscionable and usurious. The record does not sustain the contention.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an original proceeding in mandamus whereby the plaintiff, a young citizen of African descent, seeks to compel the governing officials of the city of Newton and one Harold Hunt to admit him to the privileges of a swimming pool constructed with funds procured by a sale of municipal bonds voted by the electors of Newton in 1934.
This action was before this court once before. (See Kern v. Newton City Commissioners, 147 Kan. 471, 77 P. 2d 954.) In that action an alternative writ was issued, which counsel moved to quash on two grounds — that plaintiff had no legal capacity to maintain the action and that the application for the writ did not state sufficient facts to constitute a cause of action. The motion to quash was overruled and defendants were given thirty days to plead. In that case the plaintiff sought to litigate the right of himself and other members of his race to use the pool. With reference to this contention, this court said:
“According to the petition, however, it is alleged that all colored citizens of Newton are similarly deprived of the privileges of the swimming pool. Whether their number be many or few the pleadings do not show. However, the situation stated in the application for the writ would undoubtedly warrant the institution of some sort of action, mandamus, quo warranto, or injunction, by the public prosecutor; and we are not prepared to say that plaintiff can maintain this-action on behalf of the group for which he pleads. But we think it clear that in the interests of justice and equhy plaintiff is entitled to maintain the action in his own behalf.” (p. 480.)
Following that statement we now have the sole question of whether on the face of the pleadings plaintiff himself is entitled to use the swimming pool. The application for the writ sufficiently alleged that the bonds so voted were a charge upon all taxable property of the city, and that plaintiff was a taxpayer; that when the swimming pool was completed and opened this plaintiff provided himself with a bathing suit for the purpose of enjoying the privilege of the swimming pool, but in the meantime the city government leased the swimming pool to one Harold Hunt; and that the latter denied to plaintiff the right and privilege of using the pool because of his race and color. The petitioner further alleged that no arrangements had been made by defendants to furnish swimming facilities or privileges for plaintiff, and that neither he nor other citizens of African descent and color were admitted to the municipal swimming pool at any time. The petition continued:
“Plaintiff alleges that the action on the part of all the defendants and each of them was malicious, capricious, arbitrary and in violation of the civil rights law of the state of Kansas made and provided in such cases, and also in direct violation of the federal and state constitutions in such cases made and provided. And, that he and all other people of African descent or color are discriminated against because of their race, and that the said defendants and each of them have arbitrarily and intentionally failed and refused to make any provision for their entertainment, amusement or enjoyment of said municipal swimming pool in the city of Newton, Kan., notwithstanding the fact that the plaintiff and people of this group pay their just proportion of the taxes, which will be applied to the liquidation of the indebtedness incurred by the defendants.”
The petition concluded with a prayer for an alternative writ commanding defendants to admit plaintiff and other citizens of Newton of African descent and color to the privileges of the swimming pool, or to show cause why plaintiff and others similarly situated should be denied such privileges.
The answer of the city officials was first a general denial. The answer then admitted the official capacity of the defendant officials and that bonds were voted to build a swimming pool. The answer then alleged that the defendants did not know except by hearsay whether or not plaintiff presented himself during the first part of June, 1936, and demanded admittance to the pool, and the defendants specifically denied such fact. The answer further alleged that the city had entered into a written lease with Harold Hunt whereby he leased the pool; that the rental Hunt had agreed to pay would be more than sufficient to pay the expenses of the pool and the cost of construction of it; that Hunt was not an officer or agent of the city of Newton at the time plaintiff demanded admittance and the city of Newton was not responsible therefor. The answer further alleged that plaintiff had an adequate remedy at law and that on account of these facts there was a misjoinder of parties defendant. The answer further alleged that a resolution had been passed by the governing body of the city providing for the construction of a modern swimming pool for colored persons, upon obtaining the necessary funds therefor, which when constructed would have all the necessary equipment for the operation of such a pool, and would be of such size and dimensions to furnish colored persons facilities for swimming; that on May 3, 1938, the governing body adopted an ordinance segregating the different races using the swimming pool for colored people, and the defendants asked a determination of the validity of the ordinance, which was attached to the answer; that after the enactment of the above-mentioned ordinance a lease was duly entered into with Harold Hunt by the governing body and that Harold Hunt was in control of the swimming pool under the terms of that lease. The prayer of the answer was that a peremptory writ of mandamus be not issued and there be a determination of the right of the governing body of the city to segregate the races for swimming purposes!
The answer of Harold Hunt was first a general denial. It then alleged that he had entered into the lease with the city for the swimming pool; that it was a valid lease and that he was not an official or an employee of the city of Newton and that the pool was leased by him for profit. The answer then contained the following allegation:
“That said swimming pool is what is known as the circulatory type of pool and that the water thereof is only changed once during the swimming season; that the water is constantly entering said pool and leaving the same all of the time the pool is in operation; that if colored persons were permitted to swim in said pool, then the members of the white race would not patronize the same, and that defendant Harold Hunt would suffer damage and the income from said swimming pool would be insufficient to pay the rental thereon.”
The answer then alleged that Hunt was not required to obtain a license for the ‘operation of the pool and that plaintiff was not entitled to admission by the provisions of G. S. 1935, 21-2424; that plaintiff had an adequate remedy at law; that Hunt had not neglected the performance of any act which the law enjoined upon him; that plaintiff should be denied a writ of mandamus against Hunt. The answer then alleged that by reason of the above facts there was a misjoinder of parties in the mandamus action. The answer then alleged the adoption of the ordinance providing for the construction of a swimming pool for colored people, the passing of the ordinance providing for a segregation of the races for swimming purposes; that Hunt had entered into a lease with the city for the operation of the swimming pool and that Hunt, as lessee, had the exclusive right of determining the persons who should be admitted to the pool and the times when persons of different ages or classes might swim therein and that he had the right to exclude any person whom he might deem undesirable. The prayer of this answer was that a peremptory writ be denied.
The lease entered into between Hunt and the city, which was attached to the answer of the city, and marked exhibit “A,” provided that Hunt would pay the city the sum of $950 for the pool for the term commencing May 29, 1936, to September 15, 1936, and $50 for the use of certain equipment. The lease contained various provisions as to the care of property and the sale of bathing suits and other equipment and operation of the soft-drink stand; the furnishing of water by the city; the hours when the pool should be kept open; the charges that should be made for the use of the pool and equipment; that Hunt would clean and sterilize all suits and towels and operate the pool in accordance with all the rules of the board of health. It also'provided that Hunt would maintain proper order and conduct of the patrons of the pool and operate it in a careful and proper manner and would give his personal time and attention to the operation of it; that he would not sublease it; that he would keep two lifeguards on duty and take all proper precautions for the prevention of accidents and keep the pool lighted. The lease provided that Hunt would save the city harmless from and against all losses, demands, suits, payments, actions, judgments and claims of any and every nature and description brought or recovered against the city by reason of any act or omission of Hunt, and would furnish a liability insurance policy to govern these things; that he would not mar the property, and failure to perform any of these agreements would be grounds to forfeit the lease. The ordinance providing for segregation of the races, which was marked exhibit “B” and attached to the answer of the city, referred to the passage of the resolution providing for the construction of the swimming pool for colored people, and then provided as follows:
“That upon the construction of said swimming pool for colored people, and after the opening thereof, it shall be unlawful for any member of the white or Caucasian race to swim in the pool provided for the colored people, or people of African descent, and it shall likewise be unlawful for any person of the colored race to swim in the present municipal swimming pool situated in the northwest corner of Athletic Park in said city.”
Exhibit “C,” which is a copy of the contract referred to in the answers, is not set out here because it is in terms substantially the same as exhibit “A.”
In due time the plaintiff filed a motion for judgment notwithstanding these answers. In a mandamus case this is equivalent to a demurrer to the defendants’ answer on the ground that it does not state any defense to the action. The real question raised by this motion is whether on the face of the pleadings the plaintiff is entitled to a peremptory writ directing the defendants to proceed at once to admit plaintiff to the use of the swimming pool, as prayed for in the petition.
The basis of the relief sought by plaintiff is the rights secured by members of his race by the fourteenth amendment to the constitution of the United States. The first time this amendment was invoked by a member of the colored race in this state seems to have been in Board of Education v. Tinnon, 26 Kan. 1. That was a case where the plaintiff, a young colored boy, sought by mandamus to compel the board of education of the city of Ottawa to allow him to attend a public school in that city. The questions dealt with in the opinion were, first, whether the legislature had power to authorize a board of education to establish separate schools for the education of white and colored children; and second, whether having such power the legislature had exercised it. This court held that the legislature had such power, but that except in the case of cities of the first class it had not exercised it. The peremptory writ was allowed the plaintiff. This case has been followed several times since by this court. The question has been, however, one where school authorities have attempted to exclude a young colored person from attending some particular school. Many of these cases were discussed in Kern v. Newton City Commissioners, supra. This court there said:
<(But we think it clear that in the interests of justice and equity plaintiff is entitled to maintain the action in his own behalf. He is deprived of the privileges of the swimming pool. He is a taxpayer, and as such he and his property are bound to pay the bonds issued to raise the money which built the swimming pool. He has as good a right to its privileges as any other citizen. Deprivation of the privileges of access to municipal recreation grounds established or maintained at the general taxpayers’ expense, on account of race or color, is legally and traditionally offensive to the history of this state; and although this court has repeatedly upheld statutes which sanction reasonable segregation of the racial stocks of this state, white and colored, we have steadfastly held to our oft-repeated rule that the legislature alone can authorize such segregation, as in the many school cases cited above.” (p. 480.)
It will be seen that this court placed swimming pools built and maintained in the same category as schools built and maintained by public funds.
The first argument of defendants which we shall consider is that because 'the city had made a valid lease of the pool and the lessee was not an employee, agent or official of the city and was solely responsible for the management of the pool, mandamus was not a proper remedy to compel admittance of plaintiff. The basis of this argument is that if Hunt prevented the plaintiff from swimming in the pool he -was not acting for the city, but in his own individual capacity as lessee of the pool. Defendants cite the case of Bailey v. City of Topeka, 97 Kan. 327, 154 Pac. 1014. In that case the city of Topeka had granted to individuals for pay the exclusive right within the park to operate refreshment and lunch stands and to rent boats and provide suits, towels and rooms for bathers, at fixed prices. It was charged that this was a use of the park for other than park purposes and hence beyond the power of the city. This court held that the arrangement was a proper one. Defendants argue that this is a holding that the lease in this case is a law ful one and that Hunt, the lessee, is operating the pool under the lease, and the defendant city commissioners owe plaintiff no duty with reference to the pool, and plaintiff’s remedy against Hunt is not mandamus, but an action for damages. An examination of Bailey v. City of Topeka, supra, discloses that this court held that the arrangement made by .the city in that case was simply the method chosen for the operation of the park rather than to appoint some person or persons to operate it. Nothing was done by the city to take away any of the public features of the park. It was still operated for the benefit of the general public. Following the holding of this court in that case, the lease here between the city and Hunt is nothing more than an arrangement whereby Hunt manages the pool for the city. It would not do to hold that the city officials could evade any of their official obligations or take away from this pool any of its characteristics by entering into a lease with Hunt. Furthermore, when the city leased the pool to Hunt, regardless of the terms written into the lease, it was presumed that the pool would be operated in accordance with all the provisions of the statutes and the constitution. Among these provisions was one that the public generally would be admitted to the pool.
Defendants rely on Swan v. Riverside Bathing Beach Co., 128 Kan. 230, 276 Pac. 796, as authority that Hunt was operating this pool in his private capacity rather than as an employee of the city. In that case the defendant had leased land from the city and had constructed and was operating a swimming pool on it. It was charged that a child of the plaintiff had met her death while using the pool and that such death resulted from the negligence of defendants. This court held that the immunity of the city from liability for negligence in the performance of its governmental functions was not imputed to one who under the contract in question operated a swimming pool on the land leased from the city so as to relieve him from his negligence. This case would be an authority as to the duty owed by Hunt to members of the public once they are admitted to the pool. The lease in this case provides for that, but it is not an authority on the question of the duty owed by Hunt and the city to permit members of the public to use this pool.
Defendants next cite Cumming v. Board of Education, 175 U. S. 528, 44 L. Ed. 262. This was a case where the petitioners were taxed for the maintenance of a high school for white children, but no similar school was maintained for colored children. The petitioners sought to enjoin the school authorities from operating the high school for white children. The courts of Georgia denied the injunction, and on appeal the United States Supreme Court held that under all the facts and circumstances the petitioners were not entitled to such relief. The case turned upon peculiar circumstances and is not in point on the question we are considering.
The next question argued by defendants has to do with the validity of the ordinance of the city providing for a segregation of races for the purpose of swimming. This ordinance was passed by the city after the resolution providing for a separate swimming pool for colored children had been passed. We are told in the brief for the city and Hunt that the city had not gone ahead with the construction of the separate pool for colored people because until the question of the validity of the segregation ordinance was settled the city authorities could not be sure that the construction of the separate pool would solve the difficulty in which the city found itself. It will be noted that the segregation ordinance provides that it shall not become effective until the separate pool for colored people has been constructed. Should this case be treated as one for a declaratory judgment as far as this question is concerned, the statute providing for such judgments can only be invoked when an actual controversy exists. (See G. S. 1935, 60-3127; also, Kittredge v. Boyd, 137 Kan. 241, 20 P. 2d 711; also, West v. City of Wichita, 118 Kan. 265, 234 Pac. 978; also, Garden City News v. Hurst, 129 Kan. 365, 282 Pac. 720.)
In this case we are considering the right of the plaintiff himself to use the swimming pool now in operation. It does not appear that the plaintiff would object to the segregation ordinance should the city construct a pool for colored people. Hence it cannot be said that an actual controversy exists. Furthermore, the passing of the resolution that is set out in the answer of the city does not assure the construction of the separate pool. Several steps remain to be taken. It might never be built. In view of such a situation it can hardly be said that an actual controversy exists. We refrain, therefore, from passing on the validity of the segregation ordinance in this action.
It will be noted that the city first generally, and second specifically, denied that plaintiff had presented himself and demanded to be admitted to the pool. Hunt denied this in his general denial. As was stated at the outset of this opinion, the only question plaintiff had any right to litigate is his own right to be admitted to this pool. The question of the right of the colored race in general could only be litigated by the attorney general or the county attorney of Harvey county. The city officials and Hunt are charged with the duty of maintaining order in this pool. It is a peculiar situation, since more or less informality is the rule at such places. Mothers come there with small children and use the place as a playground. On this account there is a wide discretion vested in those in charge of such pools as to whether persons of a quarrelsome disposition or big boys known to be bullies or men or women known to be of immoral character generally should be admitted. This is true regardless of the color or race of the person excluded. As far as this record discloses, neither Hunt nor the city officials have had an opportunity to see plaintiff in this case so as to form a conclusion as to whether he was the sort of person who should be admitted. This court is unable to form such an opinion from this record.
The rule is stated in 38 C. J. 693, section 265, as follows:
“Mandamus will not issue against municipal officers or boards unless it appears that all acts which are conditions precedent to the right to the writ have been complied with. The writ will not issue unless it is made clear that all of the preliminaries preceding the execution of the function sought to be compelled have been completed so that nothing is left for defendant to do except the ministerial duty involved. Nevertheless, a substantial compliance with the conditions precedent will be sufficient.”
It can hardly be said that all conditions precedent to the issuance of the writ in this case have been complied with when it is denied that plaintiff ever presented himself at the pool and demanded to be admitted to it.
Therefore, the motion of plaintiff for judgment notwithstanding the answers is denied. | [
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The opinion of the court was delivered by
Dawson, C. J.:
Plaintiff brought this action against the Safeway Cab, Transfer and Storage Company for injuries sustained in a collision between its taxicab and an automobile in Wichita.
Impleaded with the taxicab company as defendant was the Industrial Mutual Liability Insurance Company, which had issued its insurance policy covering whatever liabilities might be incurred by the taxicab company.
Plaintiff alleged that she was a passenger for hire in defendant’s taxicab, and that the collision and her consequent injuries were caused by the negligence of the taxicab driver. She pleaded the pertinent facts, narrated the extent of her injuries, and prayed judgment in damages. Attached to her petition as exhibits were excerpts from various city ordinances which related to drivers’ licenses, liability insurance, regulating speed of motor cars, prescribing rules of precedence at street crossings, and requiring suitable brakes and other motor-vehicle equipment.
Defendants answered with a general denial and certain admissions, and denied that the collision was due to any fault of the taxicab company or its driver. They alleged that it was wholly due to the fault and negligence of one Morris W. Hamlin, who operated the automobile which collided with the taxicab.
The evidence for plaintiff tended to show that she was employed as a switchboard operator and cashier at the Broadview hotel in Wichita. Her day’s work ended at 11 o’clock p. m., at which time she was accustomed to go home in a taxicab. Accordingly, on the night of December 8, 1938,- she called one of the defendant’s taxicabs to take her to her home at some distance north and east of the place of her employment. As the taxicab was traveling east on Elm street and approaching its intersection with Main. street, a Ford automobile driven by Morris Hamlin came from the north on Main street. The cars collided, the taxicab capsized, and plaintiff was severely injured. Questions of the relative speeds of the two motor vehicles, and which first entered the intersection provoked the usual conflict of testimony which the jury settled by special findings. Their general verdict was for plaintiff in the sum of $6,860.40.
The special findings read:
“1. What if any negligence do you find against the defendant, The Safeway Cab, Transport & Storage Company? A. Speeding through intersection and failing to keep a good lookout for cars.
“2. Which car first reached the intersection of Main and Elm streets? A. The Ford car.
“3. Where was the taxicab when the driver of the Ford car first saw it? A. After both cars had entered intersection.
“4. Where was the Ford car when the driver of the taxicab first saw it? A. After both cars had entered intersection.
“5. Give the rate of speed of the Ford car immediately prior to the collision. . A. Between twenty and twenty-five miles per hour.
“6. Give the rate of speed of the taxicab immediately prior to the collision. A. Between thirty and thirty-five miles per hour.
“7. What if any negligence do you find against the driver of the Ford car? A. Speeding through intersection and failing to keep a good lookout for other cars.
“8. What do you find to have been the proximate cause of the collision of the two automobiles? A. Speeding through intersection and failing to keep a good lookout for other cars and negligence of the cab driver.”
■ Judgment was entered for plaintiff on the verdict and defendants assign certain errors, the first of which is that the jury’s verdict was given under passion and prejudice. It is argued that the evidence did not justify a verdict for so large an amount. This court has assiduously considered the evidence. S'o much of it as the jury chose to believe tended to show that as a result of the accident the seventh cervical vertebra of plaintiff’s neck was broken and this caused a disarrangement of the muscles attached to it. . There was a concussion of the brain which rendered her unconscious for several hours, and afterwards caused her an occasional lapse of memory called “retrograde amnesia.” There was professional testimony that suGh a brain injury sometimes leaves scar tissue which in later life causes epilepsy. Plaintiff also suffered a retrodisplacement of the uterus accompanied by hemorrhages. Plaintiff’s evidence • also tended to show that she had sustained a cut over the eye, a cut on the chin, her left knee was torn open, and various other bruises, sores and pains likely to attend the experience of being tumbled about in a taxicab which collided with another vehicle while speeding at thirty or thirty-five miles an hour, and only came to a stop by turning over at the curb -line fifty-nine feet away.
Plaintiff’s injuries confined her to the hospital for various intervals over a period of eleven weeks, and caused her to undergo two or more serious operations, one to resuture a spinous process which had been broken from the seventh cervical vertebra, and one to correct the displacement of the uterus.
Defendants stress the point that one of the surgical operations which plaintiff had to undergo was not primarily caused by the acci dent. The physician who treated her injuries discovered that she had a small tumor, and in one of the surgical operations it was removed. It is not contended that this minor detail was not adequately covered by the court’s instructions if any such were necessary or requested, and in any event, it could serve as no more than a talking point before the jury.
Other evidence, including that of medical experts, tended to show that the spinous process broken from the cervical vertebra had failed to unite, that the operation to effect such union had failed, which fact, together with the continuing pain which still afflicted plaintiff at the time of the trial, would warrant an inference that plaintiff was permanently injured in the accident.
Included in the same specification of error is an argument on the sufficiency of the evidence to support the special findings of the jury. We think there was competent evidence to support those findings, and the credence to be accorded thereto was the responsibility of the trial court and jury, not this court’s, as our plethora of decisions has so often declared. (Brown v. Brown, 146 Kan. 7, 11, 68 P. 2d 1105; Cox v. Kellogg’s Sales Co., 150 Kan. 561, 564, 95 P. 2d 531.)
A painstaking study of the record discloses no basis of support for the error assigned on alleged passion and prejudice on the part of the jury. And the same evidence, which the jury chose to believe, summarized as above, touching the gravity and extent of plaintiff’s injuries, likewise disposes of defendants’ related contention that the verdict was excessive.
The next error urged relates to the instructions to the jury. In one of these the court told the jury that if the evidence warranted a finding of negligence on the part of the taxicab. company, the fact that the driver of the other vehicle involved in the collision might also be guilty of negligence would not exonerate the defendant company. Such an instruction was a correct statement of pertinent law. (Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706, syl. ¶ 2; Luengene v. Power Co., 86 Kan. 866, 122 Pac. 1032; Pinson v. Young, 100 Kan. 452, 455, 164 Pac. 1102; Swayzee v. City of Augusta, 113 Kan. 658, 216 Pac. 265; Acock v. Kansas City Power and Light Co., 135 Kan. 389, 398-399, 10 P. 2d 877.)
The next error assigned relates to the court’s instruction that if the jury should find for plaintiff and against the taxicab company, they should also find against the defendant insurance carrier. When the issues were being formed in this lawsuit, defendant did file an amendment to its answer in which it pleaded that the taxicab company and its insurance carrier were improperly joined — on the ground that the action against the former sounded in tort and the latter in contract. A careful perusal of the entire record does not show that any ruling on that point was either invoked or rendered. Certainly that legal question was not squarely contested in the trial court, and, indeed, it is scarcely hinted at in this court. (Clark v. Linley Motor Co., 126 Kan. 419, 268 Pac. 860; State v. Pyle, 143 Kan. 772, 782-783, 57 P. 2d 93.) And since the question of misjoinder was merely broached and then abandoned before the trial was well begun, there was no reversible error in the instructions that if the jury found a verdict against the taxicab company they should also find one against the insurance carrier. (Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918; Id. 143 Kan. 771, 57 P. 2d 16.) The trial court effectively removed any cause of grievance on the part of the insurance carrier when it reduced the verdict against it to $5,000, which was the extent of its liability as insurer for the taxicab company.
A patient consideration of the entire record fails to disclose anything approaching the gravity of prejudicial error. The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover for alleged conversion of nursery stock, and from a judgment against her the defendant appeals.
In 1932 the title to a certain tract of 18 acres in section 5, township 12, range 23 in Johnson county, Kansas, was vested in plaintiff Fred Allen, but B. E. White, hereafter mentioned, was also interested in its ownership. On November 8, 1935, this tract was subject to mortgages of $4,400 and past-due interest and to unpaid taxes. Defendant Anna Murphy was the owner of a tract of 30 acres in section 31, township 11, range 23 in Wyandotte county, Kansas.
Under date of November 8, 1935, Anna Murphy entered into a contract with Fred Allen and wife and B. E. White under which Anna Murphy was to pay $1,000. Allens were to convey her their 18-acre tract subject to the mortgages, and Anna Murphy was to convey to White her 30 acres. Provisions about abstract of title, interest, insurance and taxes are not now material. The agreement, with the $1,000, the insurance policies and the two deeds were placed in escrow for delivery. Out of the $1,000, taxes and interest were to be paid, and $500 was to be paid Fred Allen. The agreement contained the following:
“Fred Allen and Gertrude Allen, his wife, agree to give possession-of Johnson county farm, described, on February 1, 1936, and to give possession of any vacant land not occupied by nursery stock or buildings upon the completion of this agreement.
“Anna Murphy agrees to give possession of Wyandotte land, above described, upon completion of this agreement.”
The deed from Fred Allen and wife to Anna Murphy was an ordinary warranty deed, and contained no reservations or exceptions further.than with respect to the mortgage encumbrance. The matters provided in the escrow agreement were duly performed and the deeds delivered.
Plaintiffs’ petition alleged the execution and delivery of the deed in accordance with the contract above referred to; that at the time of the execution of the instruments and for some time prior plaintiffs were engaged in planting, raising and selling nursery stock upon a portion of the real estate described in the deed, and that at' the time defendant took possession there was on the real estate certain nursery stock, a list of which was attached as an exhibit; that the nursery stock was personal property of the plaintiffs; that the major part of the consideration to plaintiffs was the reservation of the nursery stock to the plaintiffs, and that the land was conveyed subject to plaintiffs’ right to remove the nursery stock in the early spring of the following year; that in accordance with the agreement and rights thereunder, plaintiffs attempted to remove the nursery stock, but were prevented by defendant, who converted the nursery stock to her own uses, to the damage of the plaintiffs in the sum of $5,200, for which they prayed judgment.
Defendant’s motions to strike and to make definite and certain were denied and she answered, admitting execution and delivery of the agreement and deed and denying generally.
At the trial many of defendant’s objections to the competency of plaintiffs’ evidence were overruled, as was her demurrer to plaintiffs’ evidence. At the conclusion of the introduction of the evidence, defendant moved for an instructed verdict in her favor, which was refused. The jury answered special questions submitted and returned a general verdict in favor of the plaintiffs for the sum of $2,500. Defendant’s motions for judgment on the special findings and for a new trial were denied, and she appeals, her specifications of error covering all adverse rulings noted.
Considerable space in the briefs is devoted to the question whether the nursery stock was in the nature of an annual crop and as such could be the subject of an oral reservation and shown by parol testimony where the deed was silent. As has been observed, plaintiffs acquired title to the 18-acre tract in 1932. Fred Allen testified in detail as to the nursery stock. The largest single item was purple lilacs, which he valued at $1,350, all of which were planted prior to 1930. The next largest items were arbor vitae, valued at $250, and spruce, fir, juniper and pine trees, valued at over $500, all planted prior to 1931. Various other shrubs and plants were listed, planted in 1932 and 1933, and the latest item planted was in 1934 and valued at $6.25. From the record it appears there was no annual gathering or removal of the various shrubs, trees, etc. While Allen testified that all of the stock was dormant, owing to the season, and was subject to being removed, his testimony was to the effect all was planted in the ground when the agreement was made. Thereafter on November 25 and December 15, 1935, and before he surrendered possession, he did undercut a great many of the shrubs, roots, etc., so that they might be removed, but that action on his part could not alter the rights of the parties under the agreement and the deed. Although the case is not strictly in point here, in Kennedy v. Spalding, 143 Kan. 76, 53 P. 2d 804, it was held:
“The word ‘crops’ as used in K,. S. 67-524 and 67-526, is held to mean any product of the soil that is grown and raised annually and gathered during a single season, and it is held further that a nursery stock of fruit trees, ornamental trees and shrubs and bushes, all two or more years old, does not come under the terms of the statute.” (Syl. It 2.)
If it be assumed, however, that a nursery stock such as is involved here may be likened to and treated as an annual crop, then it would be permissible to show by parol there had been reservation thereof. (Dannefer v. Aurand, 106 Kan. 605, syl. ¶ 4, 189 Pac. 371; Peterson, Admr., v. Honaker, 114 Kan. 752, 220 Pac. 1025; Soeken v. Hartwig, 124 Kan. 618, syl. ¶ 1, 261 Pac. 590; Hayhurst v. Underwood, 126 Kan. 349, 351, 267 Pac. 965; Hayhurst v. Saile, 130 Kan. 844, 846, 288 Pac. 539; 8 R. C. L. [Crops, § 17] 372; 15 Am. Jur. [Crops, § 13] 205.) We shall assume the evidence tending to show reservation by parol was not subject to objection.
Appellant contends her demurrer to plaintiffs’ evidence should have been sustained. Consideration of that contention involves also the competency of certain of that evidence. The plaintiff Gertrude Allen did not testify, and the record discloses no more than that she was a party to the deed to Anna Murphy. Plaintiff Fred Allen testified that he acquired the real estate in December, 1932, from B. E. White as receiver of the Kansas City Nurseries Company, apparently a bankrupt concern, and that White and one Mellott had an interest in the property. He and Mr. White had some conversations about selling the property, following which White carried on negotiations with Miss Murphy which ultimately resulted in the agreement for exchange of the two pieces of real estate. Mr. Allen didn’t talk to Miss Murphy concerning the agreement or the matters entering into it. Notwithstanding, Allen’s attention was directed to the provisions of the agreement concerning possession by Miss Murphy, and over repeated objections that his evidence was an attempt to prove a reservation by parol, and was incompetent and hearsay, he was permitted to testify that White had told him he was to get the nursery stock, and that he had leased other ground on which to place it. The first part of the objection has been discussed. The trial court’s theory seems to have been there was some doubt whom White was representing. We have examined the abstracts fully and find no evidence that even suggests he represented anyone except Allen and himself. What Allen says White told him was hearsay as to the defendant Murphy and should have been excluded. White was a witness for plaintiff and testified at length about his negotiations with Miss Murphy and that he was acting as an interested holder of the real estate and for Mr. Allen. On his direct examination he testified concerning other details of the agreement and that Miss Murphy was to have possession of the plowed land at the time of signing the agreement and on February 1 complete possession without any qualifications or reservations. He also testified as follows:
“What was the — what did you and the parties, all of you, Miss Murphy and all of you, understand as the vacant ground? The unoccupied ground? A. That would be any land not occupied with any nursery stock.
“Q. Why was that provision put in this agreement here, that the ground unoccupied by nursery stock was not to be — possession was not to be given until February first? A. Well, I was trying to get as good a deal for Fred as I could, and any nursery stock he could sell up to February first he could sell.
“Q. In other words, at the time this contract wa§ signed oh November 8, 1935, Fred Allen was to have the nursery stock on the property there? A. He could sell it in the normal course of business, and what he sold he could keep.
“Q. The normal course of business would mean the wholesale sale of that stuff to another nursery company, wouldn’t it? A. That is right.
“Q. And if Fred Allen had sold all of that nursery stock there would not have, been any objection by any of the parties to this agreement, if he had sold it prior to February first; is that right? A. If he had made a complete sale that would be O.K.
“Q. That was one of the things set out in this contract, or one of the things understood by the parties, was it?
[Objections.]
“A. That was my understanding.
“Q. Was that the reason that this possession clause was put in there, about giving possession of the vacant ground at the time, and the ground occupied by the nursery stock at another? A. I would not say that was the reason. It was expected that Mr. Allen, in the normal course of business, would sell maybe two or three hundred dollars’ worth of stuff, and I represented to Miss Murphy that was probably, judging from our past experience, what he would do; and in our conversations with Mr. Allen that was our idea.
“Q. You mean your idea and Miss Murphy’s? A. That was Fred’s expectation and mine at the time, as we talked it over.”
and—
'“Q. But when this agreement was made, the understanding was that Fred could sell it and if he could, customers for it could sell all of it; is that right? A. That was not in the contract. The agreement was that what he could sell he could have.”
On cross-examination he testified as follows:
“Q. You have testified that in discussing the nursery stock on this property, you — prior to the time this agreement was made, you mentioned something to Mr. Allen — or about Mr. Allen selling some of it? A. Yes, sir.
“Q. Now, what did you say to her about that? A. I told her that in all likelihood Mr. Allen would sell two or three hundred dollars’ worth of stock prior to February first.
“Q. Did you tell her what was to become of the stock that he didn’t sell? A. She was to have what was not sold.
“Q. And you told her that? A. Yes. On the first of February she was to have the farm and all the nursery stock that was there.
“Q. And that is what you now say you [sold] her? A. Yes, sir; that is what we sold her.
“Q. Was Mr. Allen to move this nursery stock off of there? A. He was to have what he could sell.
“Q. What he sold to customers? A. That is right.
“Q. And was he to move all of it off of there? A. He had no authority to remove any of it to transplant it. All he could do was he could have what he could sell.
“Q. And what was left on there on February first was to be Miss Murphy’s? A. That is right.
“Q. And there was not any misunderstanding about that? A. None whatever.”
There was no other competent evidence which disputes the agreement made by White as an interested party and as agent for Allen, with Miss Murphy, and as shown above. There was some evidence that after the agreement was made Allen sold $100 to $150 worth of nursery stock of which he apparently made delivery, but there was no showing that prior to February 1,1936, he sold any of the nursery stock which he did not deliver. Plaintiffs’ theory was they were entitled to remove all the nursery stock. The evidence failed to sustain such a theory, and defendant’s demurrer should have been sustained.
In view of our conclusions, it is not necessary to consider other specifications of error.
The judgment of the trial court is reversed with directions to order judgment in favor of the defendant. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This three-sided lawsuit was concerned with the proceeds of certain oil royalties withheld by a trustee and for recoupment of the proceeds of similar royalties theretofore disbursed by him.
The late Sam Lippitt, of Reno county, died intestate and unmarried on February 13, 1929. His only heirs were his sister, Mrs. Mary Woods, of Seattle, Wash., and his brother, Theodore Lippitt, of Sterling, Colo. Sam Lippitt left some personal property which included a note and mortgage, called the “Reynolds” mortgage, for $5,500, and some certificates evidencing fractional interests in potential oil royalties on two eighty-acre leaseholds in Rice county, neither of which had been developed when Sam Lippitt died. On one of these eighty-acre leases, designated Rainey No. 1, the American National Bank of Hutchinson had undertaken to serve as trustee for the shareholders of whatever oil royalties might materialize. The bank had issued one such certificate to Sam Lippitt, dated June 11,1926.
On the second eighty-acre lease, the defendant W. J. Duval had undertaken to serve in a similar capacity. Duval as trustee had issued six certificates to Sam Lippitt reciting that in each of them the latter was the owner of one-twenty-fourth of one-sixteenth of the royalties of the eighty acres described. Four of these certificates were dated January 12,1926, one January 26, and one February 15, of the same year.
Sam Lippitt’s estate was not probated. In April following his death Mrs. Mary Woods and Theodore Lippitt met and settled his estate informally. They agreed in writing that a certain bank in Hutchinson should receive payments of the interest and principal on the “Reynolds” mortgage and credit the same to the two heirs, share and share alike. Their written agreement also recited that—
“It is also agreed that any money received from any of the oil and gas leases or royalties owned by the said Samuel L. Lippitt, deceased, may be paid to the Citizens Bank of Hutchinson, Kan., and divided, one-half to Theodore C. Lippitt and one-half to Mary M. Woods.”
Sometime following this informal settlement of the Sam Lippitt estate, Theodore Lippitt accepted $2,000 in full settlement of his share of the “Reynolds” note and mortgage and sometime later Mrs. Mary Woods accepted $2,425 in full satisfaction of her half interest in that indebtedness.
The six certificates issued by Duval, trustee, to Sam Lippitt, which relate to the subject matter of this lawsuit appear to have remained in the possession of a Mr. Williams, attorney for Sam Lippitt in his lifetime, until January 12, 1935, at which time he delivered them to Mrs. Mary Woods.
In November, 1930, oil was discovered in paying quantities on the eighty-acre leasehold in which Duval was serving as trustee. On advice or instructions from Mr. Williams early in 1931, Duval, the trustee, made the first oil-royalty checks to Mrs. Mary Woods and delivered them to Mr. Williams. In June of the same year Mr. Williams advised Duval that future remittances should be mailed direct to Mrs. Mary Woods in Seattle, and Duval did so.
On February 11, 1931, some three months or less after the oil discovery, and about the time the first royalty checks were being distributed, Theodore Lippitt died in Colorado, testate, leaving several sons and a daughter. Duval knew nothing of those heirs, and in the belief that no one but Mrs. Mary Woods, of Seattle, had any interest in the royalty proceeds pertinent to the six certificates he regularly remitted them to her for several years. The Theodore Lippitt heirs in Colorado knew nothing of the Duval trusteeship, nor of the existence of the six certificates, nor that they had any interest in them, nor that the leasehold to which they pertained had become a producing property.
Sometime in the year 1935, date not shown, oil was discovered in paying quantities on the other eighty-acre leasehold, of which the American National Bank was trustee. A demand was made on behalf of Mrs. Mary Woods that the proceeds of the oil-royalty interest shown by the bank’s certificate issued to Sam Lippitt, dated June 11, 1926, be paid to her. The bank hesitated to comply, and on August 10, 1935, an action in the name of Mary Woods as plaintiff was commenced in the district court of Reno county against the bank, alleging she was the owner of the certificate and entitled to the oil royalties accruing thereto. She also alleged that Sam Lippitt had died intestate in 1929, that a settlement of his estate had been effected between herself and Theodore Lippitt, who were his only heirs; that Theodore Lippitt had died intestate in Colorado, single, and that she was his sole heir. While that action was pending, Mrs. Mary Woods died at her home in Seattle on August 29, 1935. About the same time the trust officer of the American National Bank learned that the late Theodore Lippitt had been a married man and had left surviving him in Colorado certain heirs at law. Following the death of Mrs. Woods the action was revived in the name of Earl Woods; the heirs of Theodore Lippitt intervened; and on October 19, 1935, judgment was rendered directing the American National to cancel its certificate of June 11, 1926, issued to Sam Lippitt, and in lieu thereof to issue certificates to the intervening heirs and to Earl Woods in accordance with their proportionate interests in the royalty in question.
Following the death of Mrs. Mary Woods on August 29, 1935, Duval sent to Earl Woods four monthly remittances totalling $372, for the proportionate amount of the collected royalties on the six certificates issued to Sam Lippitt by Duval, trustee. Early in 1936, Duval learned of the existence of heirs of Theodore Lippitt, and thereafter he withheld the royalties which were accruing to the owners of the interests evidenced by the six certificates involved in this action.
In March, 1936, C. L. Lippitt, one of the Colorado heirs of Theodore Lippitt, learned the facts concerning the Duval trusteeship and of the interest of the Theodore Lippitt heirs therein; and after some ineffectual efforts to get the snarled matters put to rights, on June 22, 1936, an action was begun in the city court of Hutchinson by the Theodore Lippitt heirs against Earl Woods. In their bill of particulars they alleged that they were jointly the owners of an undivided half interest in the royalty rights evidenced by the six certificates executed to Sam Lippitt by Duval as trustee, and that the defendant Earl Woods, owner of a similar undivided half interest therein, had collected the entire amount apportioned as royalties thereto for the months of August, September, October and November, 1935, to wit, $372; whereas they were entitled to the half of that amount, $186, for which sum they prayed judgment. Mr. Williams entered appearance for the defendant Earl Woods and confessed judgment as prayed for. Judgment was rendered accordingly on February 6, 1937.
Coming now to the immediate controversy we have to consider, on September 9,1937, Earl Woods brought this action against Duval, asserting his ownership of the six certificates, and that Duval had withheld the proceeds of the pertinent royalties collected since January 1, 1936, amounting to $1,038, which sum was due plaintiff, and praying judgment thereof.
Duval answered with a general denial and pleaded the facts narrated above at length, his want of knowledge that Theodore Lippitt had any heirs except his sister, Mrs. Mary Woods, that since production of oil had begun on the leasehold of present concern, about January 1, 1931, he had collected and disbursed to Mrs. Mary Woods the monthly royalties pertinent to the six certificates in the aggregate sum of $7,479.80. Duval further admitted that he had overpaid Mrs. Woods to the extent of one-half that amount, to wit, $3,739.90, and alleged his willingness to pay the further proceeds of the royalties represented by the six Sam Lippitt certificates to whomsoever the court would direct.
The heirs of Theodore Lippitt were given leave to intervene, and on May 27, 1938, they filed their intervening petition, alleging their ownership of an undivided half interest in the six certificates and the royalty proceeds inuring thereto, and praying judgment against W. J. Duval for $3,739.90, and that they be given a lien upon all the royalties accruing to the six certificates until they should receive as much as the trustee had theretofore paid to Mrs. Mary Woods.
Plaintiff filed an answer to the intervenors’ petition denying their ownership of any part of the six certificates or any interest in the royalties accrued or accruing thereto. He also pleaded adverse possession of the certificates in his mother, Mrs. Mary Woods, in her lifetime and his own possession of them since her death, and that any right they or their father, Theodore Lippitt, had in said certificate had accrued prior to his death on February 2,1931, and was barred by various provisions of the statute of limitations.
Plaintiff further pleaded the death of Mrs. Mary Woods on August 29, 1935, and that her estate had been duly inventoried and •appraised in the probate court, thus:
Real estate ........................................................ nil
Personal estate consisting of a half interest in oil stocks and royalty certificates inherited from her brother, Sam Lippitt, which had never paid a dividend............................................ $31.00
Total appraised value of estate........■......................... $31.00
Filed October 29, 1935.
Plaintiff further alleged that at no time had any claim been made against her estate for any of the oil-royalty funds paid to Mrs. Mary Woods by W. J. Duval, and that the statutes of Washington barred all claims against an estate unless filed within six months. Plaintiff’s answer to the intervening petition prayed for an adjudication of his sole ownership of the six certificates.
Duval filed a demurrer to the intervening petition, and later filed an answer denying generally its allegations, pleading estoppel on the part of the intervenors because they had never presented to him any claim of ownership or interest in the certificates; that until December 14, 1935, he had no knowledge or notice of the existence of defendants or of their claims of interest in the royalties pertaining to the six certificates; that since he had received such notice he had collected and was holding subject to the order of the court about $1,500 in royalties pertinent to the six certificates. Duval further pleaded that the statute of limitations barred the intervenors’ claims or the greater part thereof. He concluded with a prayer for judgment as to how and to whom he should pay the moneys in his hands and any future moneys he might collect as royalties involved in the action.
In an amended petition filed June 25, 1938, the intervenors amplified their first petition, narrated the facts of their father’s agreement with Mrs. Mary Woods for the division of the “Reynolds” mortgage between them, the facts of their father Theodore’s death, the probate of his will and the winding up of his estate on March 4, 1935; that they did not know whether the estate of Mrs. Mary Woods in Washington had been settled or not, and that the six certificates in dispute had never been inventoried as a part of her estate. They also alleged the facts and results of the litigation between Mrs. Mary Woods (Earl Woods, substituted) against the American National Bank, that they had been permitted to intervene and to plead therein and the judgment in that action on October 19, 1935, which decreed that the intervenors were the owners of an undivided half interest in the royalties in “Rainey No. 1,” as evidenced by the certificate of June 11, 1926, issued by the bank to Sam Lippitt.
Attached to this amended petition were pertinent exhibits — a copy of the agreement between Theodore Lippitt and Mrs. Mary Woods informally dividing the estate of Sam Lippitt between themselves, a copy of the will of Theodore Lippitt probated in Colorado, a copy of the administrator’s inventory of the estate of Mrs. Mary Woods filed in the probate court in King county, Washington, showing nothing except a number of miscellaneous oil stocks and certificates of potential oil and gas royalties appraised at the total sum of $31. The certificates involved in this lawsuit were not listed in the inventory, nor was the one involved in the action against the American National Bank. Also attached to the intervenors’ amended petition was a copy of the judgment to which we have just referred.
Plaintiff moved to strike this amended intervening petition from the files for various reasons, which will be noticed later if this appeal should turn on the propriety of the court’s ruling on the points urged against it.
On June 30, 1938, Duval filed a demurrer to the intervenors’ amended petition, which invoked the statute of limitations — except as to the royalty moneys he still held and which he was ready to disburse as the court should direct. This demurrer seems to have been overruled. On July 19, 1939, Duval answered with a general denial and pleaded a counterclaim against the plaintiff based on the overpayments of royalties he had been misled into paying to Mrs. Mary Woods in her lifetime on the advice of Mr. Williams, her attorney. He further alleged that such overpayments aggregated $3,739.90, which he should have paid to the intervenors as owners of the undivided half interest in -the six certificates in controversy. His counterclaim frankly continued thus:
“That this defendant having wrongfully overpaid the said Mary M. Woods does not have trustee funds, belonging to said interest, with which to pay the claims of said intervenors, and verily believes, and therefore alleges, that he is entitled to any equitable lien upon the interest in said royalty owned by the estate of Samuel L. Lippitt, deceased, to protect your intervenors against loss by reason of wrongful acts of the plaintiff and his predecessor in interest.”
This counterclaim concluded with a prayer that an equitable lien be created on plaintiff’s half interest in the royalties collected and withheld by Duval and upon whatever further royalties he might collect, which lien should “protect this defendant, as trustee, against the claim of your intervenors,” and for other equitable relief.
Plaintiff demurred to this last answer and counterclaim of Duval; and later answered it, amplifying his earlier allegations of fact and raising questions of law included in earlier pleadings.
The cause was tried by the court without a jury. The evidence, while lengthy and unusually complicated, did not develop any vital question of disputed fact. At its conclusion the trial court gave judgment.that the intervenors were the owners of an undivided one-half interest, and that the plaintiff was likewise the owner of an undivided one-half interest, in the six oil-royalty certificates executed by W. J. Duval, as true, to Sam Lippitt; and that—
“It is further ordered, adjudged and decreed by the court that a trust be and it is hereby impressed upon the said undivided one-half interest of the plaintiff Earl L. Woods in and to said six royalty certificates in favor of the intervenors, . . . in the sum of $3,739.90 with interest at six percent from and after May 27, 1938, and the defendant W. J. Duval, trustee, is hereby ordered and directed to pay to the aforesaid intervenors all of the income received from the interest owned by Earl L. Woods, until the full amount of said judgment of $3,739.90 plus interest is paid, and that no further sums shall be paid to the plaintiff Earl L. Woods by W. J. Duval, trustee, until the said intervenors have received out of the undivided one-half interest owned by Earl L. Woods the total amount of $3,739.90 plus six percent interest on said amount from May 27, 1938, until full payment is received by intervenors.”
Plaintiff appeals, contending first that the two- and five-year clauses of the statute of limitations (G. S. 1935, 60-306) barred the intervenors’ cause of action filed on May 27, 1938, which was more than seven years after Mrs. Mary Woods began to receive all the oil-royalty proceeds pertinent to the six certificates pursuant to her claim of exclusive ownership and possession thereof.
This contention might be difficult to overcome, but for the fact that the question of intervenors’ ownership of an undivided half interest in the certificates and of the oil royalties pertaining thereto were the very matters in issue and adjudicated pro confesso in the action in the city court of Hutchinson on February 6, 1937, wherein these intervenors sued Earl Woods to recover half the total amount of the remittances he had collected following his mother’s death from Duval, the trustee. In that situation plaintiff was estopped in this present action to reassert his exclusive and sole ownership of the six certificates in controversy and of the royalties pertaining thereto. (Schermerhorn v. Mahaffie, 34 Kan. 108, 8 Pac. 199; Anderson v. Stockwell, 130 Kan. 103, 285 Pac. 526, syl. ¶ 1; Underwood v. Greenlees, 131 Kan. 308, 311, 312, 291 Pac. 777.)
Mayhap the judgment in the district court in the action between Mrs. Mary Woods (Earl Woods, substituted) and the American National Bank, wherein plaintiff’s claim to the entire and exclusive ownership and incidents of the trust certificate issued by that bank to Sam Lippitt was adversely adjudicated, and the heirs of Theodore Lippitt, intervenors herein, were decreed to own an undivided one-half interest therein did not raise an additional barrier of estoppel against plaintiff in this action, but we need not say that that lawsuit and its incidents and results had no probative value on the question at issue in this lawsuit — whether Mrs. Mary Woods’ claim of exclusive ownership of all the Sam Lippitt certificates, the one issued by the bank as trustee, as well as those issued by Duval as trustee, had been exercised without dispute for a sufficient length of time to bar the intervenors from asserting a claim to them or either of them. However, since the adjudication in the city court case had every element of estoppel, by record and by judgment, we think so much of the present judgment now under review as concerns the intervenors’ ownership of an undivided half interest in the six certificates issued by Duval, trustee, is unassailable.
But we come to a matter of greater gravity, the trial court’s decree impressing a trust upon Earl Woods’ undivided half interest in the six certificates and their pertinent royalties which have accrued and are now held by Duval, trustee, and which may hereafter accrue thereto, for the benefit of the intervenors until they shall receive an amount equal to one-half the aggregate sum heretofore paid by Duval, trustee, to Mrs. Mary Woods in her lifetime, to wit, $3,739.90.'
Various objections to this phase of the judgment are urged and some intrude uninvited. In olden time, not only were iniquities of the fathers visited upon their children to the third and fourth generation, but their debts also. (2 Kings 4:1; Matt. 18:23-25.) Not so in our time. A man’s debts and liabilities are a proper charge upon his estate if presented in time. Ordinarily whatever is distributed to his heirs after the administration of his estate is duly settled and properly closed passes to them without any burdens or impressments of any sort. Exceptions there may be, as in cases of property covered by mortgage, unpaid tax liens, labor liens and the like. So, too, if the money or property passing to the heirs was acquired through fraud, a trust may be equitably impressed on it; but before that can be decreed the fraud must be proved, the equitable redress must be timely invoked, and the fund or property must be clearly traced into the hands of some person who has received it, and it must still be in existence. Whether all these prerequisites to the impressment of a trust are wanting here we need not say. Certain it is that the most important of them is wanting. There was no evidence, indeed it is not so contended, that a single dollar of oil-royalty moneys paid monthly over a term of years by Duval, trustee, to Mary Woods existed in her estate when she died, or when it was inventoried, or that after its administration was wound up any residue thereof devolved on this plaintiff.
In Myers v. Board of Education, 51 Kan. 87, 32 Pac. 658, the action was to impress a trust on the assets of an insolvent banker for moneys of a board of education which he had misappropriated. This court quoted Judge Story’s old rule:
‘"The right to follow a trust fund ceases when the means of ascertainment fail, which, of course, is the case when the subject- matter is turned into money and mixed and confounded in a general mass of property of the same description.’ (Story, Eq. Jur., § 259.)” (p. 98.)
But, continuing the discussion, we said:
“The modem doctrine of equity, and the one more in consonance with justice, is . . . that, when the funds are traced into the assets of the unfaithful trustee, or one who has knowledge of the character of the funds, they become a charge upon the entire assets with which they are mingled.” (p. 99.)
The ordinary rule of equity which has often been declared is where money has been converted, misappropriated or erroneously disbursed, but which can still be traced, or has been invested in property which can be identified, equity will follow it and impress a trust on it where no injustice to third parties will result. Thus in Bank v. Bank, 62 Kan. 788, 795, 64 Pac. 634, it was said:
“Equity follows a trust fund through any number of changes and allows an owner to reclaim it when and wherever it can be identified. It matters not how much it may have been changed, either in form or character, it still belongs to the owner, and if it, or its fruits or substitute, can be found among the assets of the trustee, the amount of the fund may be taken out of such assets, providing no superior rights of innocent third parties have intervened.”
To the same effect was Clingman v. Hill, 104 Kan. 145, 178 Pac. 243; Id., 113 Kan. 632, 215 Pac. 1013.
On the other hand, where the estate of the recipient of trust moneys has not been augmented thereby, no trust can be impressed on the assets of such estate. Thus in Secrest v. Ladd, Receiver, 112 Kan. 23, 209 Pac. 824, it was said:
“The right to follow and retake proceeds of trust property ceases only when assets into which the fund has come have been expended so that no part of them can be traced to existing assets.” (p. 25.)
See, also, Eklund v. Fidelity State Bank, 134 Kan. 342, 348-349, 5 P. 2d 791 and citations; “Following Misappropriated Property” in 3 Kan. Bar Journal (May, 1935), 302-305; Restitution, Restatement, 640, 866, § 160 and § 215.
Since no part of the $3,739.90 which Duval, trustee, paid to Mrs. Mary Woods could be traced into the hands of this plaintiff, the rule that equity will impress a trust on money wrongfully received as far as the money can be traced has no application. Plaintiff received none of that money, except the four monthly remittances following his mother’s death and for which he confessed judgment in the city court in 1935. The six certificates in which he owns an undivided half interest (as adjudicated in the city court case and in this case) are not the product of the excess payments of $3,739.90 his mother received as oil royalties from Duval, trustee, in her lifetime. Consequently, so much of the trial court’s judgment as imposed a trust on the present accrued royalties now in Duval’s hands and on those which may yet accrue, and which pertain to plaintiff’s undivided half interest in the six certificates in controversy, cannot stand.
Other objections to this phase of the judgment need no discussion, but some of the justices would add that the intervenors’ judgment against plaintiff in the city court barred any further claim against him directly or indirectly on account of overpayments of oil royalties prior to the institution of that action — under the familiar rule of law which will not tolerate the splitting of causes of action. (First National Bank v. Schruben, 125 Kan. 417, 265 Pac. 53 and citations.) We also deem it unnecessary to discuss the question whether the intervenors’ claim did not fail altogether because it was not filed against Mrs. Mary Woods’ estate. (Time allowed for filing in Washington, six months; within one year under our law prior to July 1, 1939.) See 2 Bartlett’s Kansas Probate Code, 403; Newton v. Insurance Co., 95 Kan. 427, 148 Pac. 619, syl. ¶ 2. We do not overlook the fact that no judgment was rendered against the trustee for the wrongful disbursement of the intervenors’ share of the oil royalties, but that point is of no significance, since there is no cross-appeal on account of it.
On mature reflection we think that justice will be best subserved by remanding this cause to the district court with instructions to set aside that part of the judgment which would impress a'trust on plaintiff’s share of the royalties now in the hands of the trustee and on his share of future royalties; also, that for the benefit of all concerned the trustee should be directed to pay the costs of this action out of the royalty funds now in his hands pertaining to the six certificates in controversy, and to divide the balance thereof now in his hands, one-half to plaintiff and one-half to the intervenors, and that whatever future royalties may yet be collected by the trustee be disbursed in the same proportions. It is so ordered. | [
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The opinion of the court was delivered by
Hoch, J.:
This is an income-tax case. It is here on appeal from an order of the district court sustaining an additional assessment made against the plaintiff company by the state tax commission. The substantive question presented is whether the entire income against which the tax was assessed was “derived from property located and busines transacted within this state,” or was in part “derived” from property located and business transacted outside this state. A procedural issue is also raised, the tax commission contending that the company did not comply with the statutory and regulatory requirements in making its returns, that it did not exhaust its administrative remedies and therefore judicial relief is not available to it. The substantive question will be first considered.
It is admitted by appellees that any attempt to tax the income of a nonresident derived from sources outside the state would be unconstitutional and void. (61 C. J. 1561, 1562.)
The Kansas income-tax act provides (G. S. 1935, 79-3203 [b]):
“Corporations shall pay annually a tax with respect to carrying on or doing business of 2 percent on the entire net income, as herein defined, derived from property located and business transacted within this state during the taxable year.” (Italics ours.)
Montgomery Ward & Co., the plaintiff and appellant here, operates over five hundred retail merchandise stores throughout the United States. During the period here involved it operated between twenty-one and twenty-four such stores in the state of Kansas. Receipts from sales in the Kansas stores constitute the income in issue. All of the merchandise sold in Kansas was bought through the company’s offices in Chicago and New York. The company also oper ates a warehouse in Kansas City, Mo., which serves Kansas stores. Numerous services connected with the handling of the merchandise and with administrative and supervisory activities are carried on by the general offices outside the state. Further reference to these services will later be made.
The income in controversy was for the company’s fiscal years ending January 31, 1936, and January 31, 1937. It is agreed that the total net income received from sales in the Kansas stores was $223,015.25 for the first year named, and $324,862.45 for the second. The accounting methods used in determining such net income are not questioned. The figures were arrived at by deducting from receipts from gross sales in Kansas all expenses and proper deductions directly connected with the Kansas investments and sales operations, and also a pro rata share of the cost of the outside purchasing operations, handling and various managerial and supervisory activities. It is not denied that all goods bought and supplied to the Kansas stores were figured at cost, and all outside services of purchase, handling, management,, etc., were figured at cost — -in other words, no profit claimed by these outside activities, prior to determination of net income from Kansas stores was allowed. At this point the controversy enters. Having shown such “net income” from Kansas stores, the company made allocation on its returns for each of the years as between Kansas and the other states wherein the outside activities of purchase, handling, management, etc., were carried on. Such allocation was made upon the theory that the “net income” so arrived at was not income wholly “derived” from the retail selling operations in Kansas, but was income “derived” from the combined investments and activities of buying, handling, administration, supervision and selling. In other words, that while the entire income was “collected” or “captured” in Kansas, it was not wholly “derived” from Kansas investments and the selling transactions in Kansas, and that part of it should be allocated to the other states where the buying and other necessary activities took place. The formula used ’ in making the allocation was based upon the expenses incurred in Kansas as compared with the expenses outside the state, which resulted in allocating to Kansas approximately 85 percent of the “net income” of Kansas stores, and 15 percent in the aggregate to the other states. Such percentages resulted in allocating to Kansas for the two years net income of $468,280.97 and to the other states, in the aggregate, $79,596.73. The commission declined to recognize any allocation and assessed a tax against the whole net income. The additional assessment in controversy amounted to $1,667.51, which included' interest to September 15, 1937, and was arrived at by applying a 2 percent tax to the above figure, $79,596.73. Briefly, the position of the commission is that the whole income from Kansas stores was derived from Kansas investments and transactions, that the purchase of goods and the various out-state activities in question involve expenditures, and not income, that before arriving at the “net income” there was deducted the full pro rata Kansas share of the cost of such out-state activities, and that to permit an allocation of the income so arrived at would amount to granting a second deduction based on the same out-state services. The company contends, on the other hand — to repeat — that it took the combined chain of operations from purchase to sale to secure the income, that all' goods and services were charged strictly at cost — without profit— to the Kansas stores, and that the allocation of the net receipts has nothing to do with deductions for expenses incurred in realizing those receipts. Again, the commission says in effect that the company makes no profit and gets no income until the goods are sold in Kansas; the company says that no income would be received unless the goods were first bought and that all the out-state services are a necessary part of the operations which ultimately produce the income.
It should be made clear that the allocation formula itself is not here in dispute. The position taken by the company, before the commission, the trial court, and this court, is that the formula which it used is a fair and equitable one, but that if the commission is not satisfied with the fórmula it will accept any other proper formula that may be prescribed. Our question, therefore, is not whether the formula used, or any other particular formula for making allocation of income would be fair and proper, but whether on the facts in the case there should be no allocation at all — whether Kansas is entitled * to impose a tax on the whole income.
It will be helpful at this point to state in a general way what the transactions and services are which are carried on by the company outside the state in connection with operation of the Kansas stores. In addition to the buying of all merchandise the central offices or regional offices outside of Kansas issue complete instructions relative to store operations, prepare individual store operating budgets, prepare all window and counter displays and all advertising copy, prepare special sales events and issue complete instructions for conducting them, issue detailed information concerning the stocking and display of merchandise, etc., design all store buildings, select store equipment, employ store managers and department heads, conduct all banking and accounting services, supervise and pay all taxes, route all merchandise shipments, handle all claims against common carriers for damage to goods, conduct training schools for sales people and furnish various other services which need not be further enumerated.
The issue may be clarified by a simple illustration. Let us assume that the company sold all its goods in Kansas, but that it bought all of them and furnished all the management and other services above enumerated through offices and warehouses in Missouri, and that all the out-state services were charged at cost to the Kansas stores. Under the theory of the commission the total net receipts from Kansas sales — after deducting all expenses in both Kansas and Missouri — would constitute income derived from Kansas property and transactions. Under the company’s theory the income would be derived from the combined Kansas and Missouri properties and transactions and part of it therefore should be allocated to Missouri. Or, to illustrate by an extreme case with reversed situation, let us assume that all the company’s offices were located in Kansas and all of its buying and managerial services conducted in Kansas, but none of its sales made in Kansas — all sales being made in Missouri by traveling salesmen who make all collections in that state. It would appear that logical application of the commission’s theory in such a case would require a holding that the whole income of the Kansas company would be “derived” in Missouri and none of it from the property or transactions carried on in Kansas. The illustration, let it be noted, involves no question of double taxation, or any contention that double taxation is necessarily unlawful. The point is that if the income is wholly “derived” from the Missouri transactions of sales, it could not at the same time be partly “derived” from the Kansas transactions of purchase and management.
Let us approach the question in another way. As already stated, the instant company charges goods and services at cost to its Kansas stores. Let us suppose that instead of receiving such goods and management services from the company’s own out-state offices, the Kansas stores purchased the same goods and the same services from an independent out-state company. Obviously the Kansas stores could not get the goods and services at cost but would also have to pay a profit — on wholesale basis — to the independent company. On such profit the out-state company would then pay an income tax in the state where its activities for the Kansas stores were carried on, and the “net income” collected from sales in Kansas would be reduced to the extent of the profit so paid. The income would thus in effect be “allocated” as between the Kansas and the foreign company.
Let us follow the preceding illustration with another step. Suppose, instead of there being an independent out-state company, the instant company used a different system of accounting, and charged all goods and services to the Kansas stores, not just at cost, but at a figure which included a reasonable profit — on a wholesale basis— which profit it returned as income in the states where its buying and handling transactions and management services were carried on. Would there be anything improper or unlawful about such 'a system of accounting? Would it not involve a proper recognition of different sources from which the final income was derived? Is there anything essentially different, and is not the same practical result reached, under the system of accounting which was in fact used in this case? What essential distinction can be urged between an accounting system which marks up profits as they may be said to be earned and one which defers all allocation of profit until the final net income is determined? It is true that if the former system were used and the company paid income on the intermediate book profit in the other states and the ultimate sales showed a net loss the company would be loser under the system, since it could not deduct selling loss from prior profits in making its income-tax returns in the other states. But does such a possibility affect the argument as to the real sources of the income?
Whatever the difficulty of resolving the issue, it is in reality a simple one. It has seemed surprising, therefore, that so few cases have been discovered by the parties or by our own research, which bear directly upon the question. This is to be accounted for, perhaps, by the fact that income tax laws are of comparatively recent origin in this country and time has been insufficient to develop extensive precedents on all branches of the subject.
The two cases cited by appellant which are perhaps most directly in point are Westby v. Bekkedal, 172 Wis. 114, 178 N. W. 451, and International Elevator Co. v. Thoresen, 58 N. D. 776, 228 N. W. 192. In the Westby case the essential question was whether the state of Wisconsin could levy an income tax on income collected by residents of New York from the sales of tobacco purchased in Wisconsin, under a partnership agreement with Wisconsin residents. The Bekkedals were a firm located in Wisconsin, engaged in buying, sorting, handling and shipping tobacco. The Rosenwalds were a firm with offices in New York city, engaged in selling, handling and merchandising tobacco. The two firms entered into a partnership agreement under which the Bekkedals were to buy tobacco raised in the state of Wisconsin upon joint account with the Rosenwalds and were to attend to the packing and handling. The Rosenwalds agreed to market the tobacco and apply the net proceeds of the sales to the credit of the joint account. The right of Wisconsin to levy an income tax on the profits of the transactions was attacked on the ground that all receipts were had outside the state and therefore the income in question was not “derived from property and from business transacted within the state of Wisconsin.” Under the partnership contract the Bekkedals were to receive forty percent of the net proceeds and the Rosenwalds sixty percent. As in the instant case, the real question was whether the activities of buying and handling by the Wisconsin Bekkedals constituted part of the transactions from which the income was derived, or whether the income was derived by the Rosenwalds from transactions wholly outside Wisconsin. The question was clearly reasoned by the court, which said:
“The sales made by the Rosenwalds were one factor, and the purchasing, etc., by the Bekkedals were the other factor, the combination of which produced the profit. Hence, to argue that, because the sales were entirely without the state, all of the income was derived from business without the state, when it is conceded that a large part of the business was transacted within the state, is to argue from a false premise. The partnership had an income, at least a part of which was derived from property located or business transacted within the state. . . .
“It is plain that that part of the income belonging to the Bekkedals [40 percent] was taxable within this state, it being derived wholly from property located and business transacted within this state. . . .
“As to that portion' of the income apportioned under the contract to the Rosenwalds [60 percent], it is income derived partly from property and business within the state of Wisconsin and partly from business transacted without the state of Wisconsin, and it should therefore have been allocated. (U. S. G. Co. v. Oak Creek, 161 Wis. 211, 153 N. W. 241.) As to the Rosenwalds, that portion of the income belonging to them must be treated as partly earned from, business transacted for them by an agent, their partner the Bekkedals, residing within the state of Wisconsin." (pp. 119, 121.) (Italics inserted.)
It is true, as stated by counsel for the commission, that in the Bekkedal-Rosenwald case the relief sought was denied on the ground of estoppel through failure to appear before the board of review to dispute the assessment as required by the statute. To that extent the statements just quoted may be considered dicta. But they were made directly upon the essential issue involved in the case.
International Elevator Co. v. Thoresen, supra, involved a similar issue. Plaintiff company operated a line of grain elevators, about half of which were in Montana and the other half in North Dakota. The. plaintiff’s income was derived chiefly from the sale, outside the state, of grain bought within North Dakota, and the question was whether North Dakota could assess a tax upon any part of the income from the sales outside the state. Without going into the detailed matters of accounting considered in the case, suffice it to say that allocation of income was sanctioned to North Dakota wholly out of proportion to the receipts within North Dakota. In other words, the essential holding was that the transactions of buying constituted an essential part of the transactions from which the income collected outside the state was derived.
Appellant cites three “Standard Oil” cases, namely, Standard Oil Co. v. Wisconsin Tax Comm., 197 Wis. 630, 223 N. W. 85; Fisher v. Standard Oil Co., 12 F. 2d 744, and Standard Oil Co. v. Thoresen, 29 F. 2d 708.
In Standard Oil Co. v. Wisconsin Tax Comm., supra, the plaintiff produced, refined, transported and marketed petroleum products in eleven mid-western states, and its property within Wisconsin consisted chiefly of tanks and filling stations required to serve the Wisconsin demand. Fifty-four percent of the oil stores on its Wisconsin oil farms was sold within Wisconsin and forty-six percent outside the state. Plaintiff did practically no manufacturing within Wisconsin. The controversy arose as to the manner in which that part of its income properly taxable in the state of Wisconsin should be ascertained. The state commission used a ratio method provided in the statute for unitary business transactions conducted within and without the state. That-is to say, it applied a percentage to the whole income of the company in determining the income taxable in Wisconsin. The" corhpany contended that such a percentage allocation was not necessary, since its Wisconsin income could be directly determined by accounting methods which showed profits received from the Wisconsin transactions. The company contended that the separate Wisconsin accounts and records showed the Wisconsin business charged at the market price of products received by it, and that by deducting from the gross receipts in Wisconsin the expenses of transacting the Wisconsin business, including a proper allocation of general overhead expenses and office accounting, there was properly indicated the income of the company taxable in Wisconsin. The court upheld the company’s contention. The appellee here contends that the case is not persuasive, since the Wisconsin income was wholly ascertainable by direct accounting methods. The case does, however, have a distinct bearing on the instant issue, in the fact that the products furnished to the Wisconsin business were charged at “market value” rather than at cost. Market value (at wholesale) included reasonable profit, and such profit became income to the company in the outside states. This amounted in effect, to allocation of income, as between Wisconsin and the other states. The court said: . *
“We perceive no reason why, under the facts in this case, the profits derived from the sales operations should not be ascertained, so far as plaintiff is concerned, as they wpuld be if the sales operations were conducted by a separate corporate entity.” (p. 639.)
That comment is in line with observations we have heretofore made in the illustration by a hypothetical case involving an independent outside company.
Fisher v. Standard Oil Co., supra, decided by the circuit court of appeals of the eighth circuit, makes a similar holding. The case involved the method of allocation used by North Dakota in determining income taxable in North Dakota. The company was an Indiana corporation and its business in North Dakota consisted of selling petroleum products at wholesale and retail which it produced wholly outside the state. It is unnecessary here to recite in detail the allocation method used by North Dakota, but the court held that no allocation theory should have been followed, since the net income within the state stood on its own footing, unmixed with outside business, and could be directly determined. The court said:
“On these allegations and admissions in the answer it is freely conceded that the commissioner wholly ignored the value of appellee’s property which it uses in the production, manufacture and refining of its products, because it is contended that profits or income arises only from sales and not from production and manufacture. . . . We think it cannot be doubted that the products as brought into the state had an easily ascertainable wholesale market price. We think appellee’s business within the state is easily separable from its other business by charging it with the wholesale price of products which it sells in North Dakota. That would put it on an equality there with those who sell and do not produce and refine.” (Italics ours.) (pp. 746, 747.)
There was a similar holding by the United States circuit court in the case of Standard Oil Co. v. Thoresen, supra.
Again the pertinency of the case is found in the fact that the court sanctioned the practice of charging the products to the North Dakota end of the business at wholesale market prices in determining income derived in North Dakota. The distinction between market price and cost cannot be ignored. The former includes profits and the latter does not. In the instant case the merchandise and the out-state services were charged to the Kansas stores at cost.
Appellee calls our attention to the case of S. S. Kresge Co. v. Bennett, 51 F. 2d 353, in which the court refused to enjoin the tax commission of New York from collecting a tax determined by an allocation formula applied to the company’s entire business within and outside New York. The nature of the business was very similar to that of appellant’s. The taxpayer, a Michigan corporation, operated a chain of stores throughout the country, a number of which were located in New York. In determining the New York income the commission accepted the taxpayer’s reported net income for its entire system and used a ratio based on New York assets as compared to its entire assets. There was no issue such as we have here presented or determined. Injunction was denied on the ground that the taxpayer had not shown by any direct method what its net in■come in New York was, and that the proceedings before the commission were not sufficient to sustain the action. The court called attention inter alia to the fact that in addition to operation of its individual stores in New York the company, operated within the state a warehouse for the entire system and that the profit which resulted from these latter activities had not been completely reflected in the net profit of the individual stores.
In Maxwell Comr. v. Mfg. Co., 204 N. C. 365, 168 S. E. 397, which was affirmed by the U. S. Supreme Court in 291 U. S. 642, 54 L. Ed. 437, the court said:
“The bare fact of sale produces no income. It is merely the act by which the income is captured; the capital, the organization or efforts which produce the sale, are the things to be considered in ascertaining the amount of income to be credited to the sale.” (p. 370.)
Appellee relies much upon the case of Shaffer v. Carter, 252 U. S. 37, 64 L. Ed. 445. The plaintiff, a resident of Illinois, was engaged in the oil business in Oklahoma, having purchased, owned, developed and operated a number of oil leases there. From these properties, all owned and operated in Oklahoma, he received a net income of $1,500,000 which was the subject of the tax. The power of Oklahoma to assess an income tax against him was attacked upon the ground that he was a nonresident, that an income tax is a personal tax and Oklahoma had no jurisdiction to tax him. That was the only issue. The right of a state to tax a nonresident’s income received from transactions within the state is well settled. All through the opinion reference is made to income earned in Oklahoma. The only possible bearing the case has here lies in the fact that the owner’s personal skill and business judgment in directing operation of his Oklahoma properties was partly exercised by him outside the state. The record discloses no expenditures, if any, outside the state in producing the income in Oklahoma. The court said that the fact that the Oklahoma business required the personal skill and management of the nonresident owner and operator to bring his income from producing properties in Oklahoma to fruition, and that he exercised this skill and management from another state “did not deprive Oklahoma of jurisdiction to tax the income which arose within its own borders.” Continuing, the court said:
“The personal element cannot, by any fiction, oust the jurisdiction of the state within which the income actually arises, and whose authority over it operates in rem. At most, there might be a question whether the value of the service of management rendered from without the state ought not to be allowed as an expense incurred in producing the income; but no such question is raised in the present case, hence we express no opinion upon it.” (p. 55.) (Italics ours.)
While the decision did not turn upon the instant issue, it may be noted that the court said that “there might be a question whether the value of the service of management rendered from without the state ought not to be allowed as an expense incurred in producing the income.” The value of such service is something entirely different from the cost of such service. “Value” would include a reasonable profit. In the instant case it is not disputed that the expense deductions permitted were the pro rata cost of the outside service. As heretofore suggested, if all of the outside services had been purchased from another company the Kansas stores would have paid a profit in addition to the cost, and such profit would have been income taxable against the other company in the other state. The result would be comparable to allocation of net receipts, where outside services had only been charged to the selling agencies at cost.
Both appellant and appellee call our attention to numerous cases involving the validity of allocation by applying a percentage, determined by statute or other formula (G. S. 1935, 79-3218, 79-3219), to the entire income in order to determine the income taxable in a state where the business is only partly carried on. Insofar as these cases merely involve the right of the state to employ such methods to arrive at state income, they are not in point here. It is well settled that states do have such a right. Some of the cited cases, however, do bear upon our issue. A leading case is Underwood T’writer Co. v. Chamberlain, 254 U. S. 113, 65 L. Ed. 165. In that case the typewriter company manufactured its typewriters in Connecticut and sold them generally throughout the country. Using a statutory method of allocation, Connecticut determined that forty-seven percent of the company’s net income was derived from property and transactions within the state. The company resisted the tax on the ground that only a little over three percent of their net receipts was collected in Connecticut. The court upheld the Connecticut allocation, and it was said in the opinion that—
“The profits of the corporation were largely earned by a series of transactions beginning with manufacture in Connecticut, and ending with sale in other states . . . ‘The plaintiff’s argument on this branch of the case,' as stated by the supreme court of errors, ‘carries the burden of showing that forty-seven percent of its net income is not reasonably attributable, for purposes of taxation, to the manufacture of products from the sale of which eighty percent of its gross earnings was derived after paying manufacturing costs.’ The corporation has not even attempted to show this; and for aught that appeal’s the percentage of net profits earned in Connecticut may have been much larger than forty-seven percent. There is, consequently, nothing in this record to show that the method of apportionment adopted bj'- the state was inherently arbitrary.” (p. 121.)
Here again is recognition that income from sales is attributable to the series of transactions from which the income is derived.
In Hans Rees’ Sons v. No. Carolina, 283 U. S. 123, 75 L. Ed. 879, the taxpayer was engaged in the business of tanning, manufacturing and selling leather products. The principal manufacturing and supply house was located in North Carolina. Sales were made throughout this country and many foreign countries. We need not here review fully the facts and the issues. Suffice it to say that the opinion clearly recognized the necessity of using a method of apportioning to a state that portion of entire income “which is reasonably attributable to the processes conducted within the borders of that state.” The court said:
“The difficulty of making an exact apportionment is apparent, and hence, when the state had adopted a method not intrinsically arbitrary, it will be sustained until proof is offered of an unreasonable and arbitrary application in particular cases. But the fact that the corporate enterprise is a unitary one, in the sense that the ultimate gain is derived from the entire business, does not mean that for the purpose of taxation the activities which are conducted in different jurisdictions are to be regarded as ‘component parts of a single unit’ so that the entire net income may be taxed in one state regardless of the extent to which it may be derived from the conduct of the enterprise in another state.” (p. 133.)
Analysis of other cases cited by the parties or encountered in our study would only serve to unduly prolong this opinion. The clear weight of authority supports the proposition that in the case of retail merchandising operations the situs alone of the retail sales does not necessarily determine the source from which the net income is derived. We find no case definitely holding to the contrary. This conclusion is not only sound in logic but is consonant with practical considerations. It is true that in the instant case application of the principle results in the loss to Kansas of about fifteen percent of the income tax which the commission seeks to collect. But the soundness of the proposition may be further tested by the fact that were the situation reversed and the taxpayer’s buying and manufacturing activities carried on in Kansas and its retail sales made wholly outside the state, the application of the principle here urged by the commission would result in denial to Kansas of any part in an income tax imposed upon the taxpayer no matter how extensive its investments and its purchasing and management activities might be within the state. Kansas is now embarked upon an effort, under legislative enactment, to promote the industrial development of the state. Such a program will naturally include the location within this state of manufacturing concerns whose products will be sold in large part, or wholly, outside the state. The question of policy involved in this laudable effort is not our concern — we are here only considering the question of law. It may be said, however, that the application of the theory that net income is only derived where sales are made would logically require renouncement of any right of Kansas to impose a tax on income not actually collected within the state.
We have not overlooked appellee’s contention that the theory urged by appellant would in many cases be incapable of practical application. Appellee says in its brief:
“From a purely economic viewpoint, appellee agrees with such a theory; however, it must be remembered that taxation is an intensely practical matter, and therefore cannot deal with abstract, idealistic theories.”
It may well be that situations will arise where an effort to determine different sources of income would break down on account of its complexity. But no such difficulty is here presented. It is true that scientific accuracy in these matters cannot always be achieved and courts have repeatedly held that such result is not necessary in order to sustain the validity of the method used. But we see no reason in the instant case to hold that the net income arrived at in the manner heretofore stated cannot be fairly allocated in order to determine what portion is derived from property located and business transacted within this state.
We conclude that the net income here involved was income derived as a consummation of the whole chain of activities which ultimately produced it; that it was not therefore wholly derived from property and business transacted in Kansas. The appellant submitted for consideration of the commission an accounting formula for making the allocation. We do not say that the formula employed is the proper one. It is the duty of the commission to see that a just and equitable basis of allocation is used. That is an administrative duty and not a judicial one. If the commission should determine after full consideration that the Kansas income of appellant cannot fairly be determined under the direct accounting method of section 79-3217, G. S. 1935, or by using the proposed formula, it may prescribe a different method for doing so, within the limits of its statutory authority. We only here determine that under all the facts of the case the commission has improperly held that appellant’s net receipts from retail sales in Kansas are wholly derived from property located and business transacted within the state. Both under state law and the requirements of the federal constitution it is necessary that there be equitable segregation of that portion of the income derived from property and transactions within the state.
We consider now appellees’ contention that appellant failed to comply with the requirements of the income-tax law and with the commission’s regulations, and therefore has failed to exhaust its administrative remedies. The alleged noncompliance consisted of failure to secure permission to use a new “method of allocation” of income to Kansas, and failure to show that a method of allocation provided in the statute was “impracticable” and “inequitable” as applied to its business.
The pertinent provisions are found in sections 79-3217, 79-3218 and 79-3219, G. S. 1935 (hereinafter referred to as sections 17, 18 and 19), and articles 79 and 12 of the regulations. We need only summarize them.
The three sections relate to taxpayers whose business is carried on partly within and partly outside the state. Section 17 deals with such cases where the taxpayer’s account books are so kept as to reveal directly the income taxable by Kansas. In such case the commission need only to satisfy itself that a proper and fair method of direct accounting to segregate Kansas income has been used, and does not need to consider the taxpayer’s entire income within and outside the state. Section 18 covers cases, with certain exceptions, where there has been no separate accounting to reveal Kansas income and it is necessary to apply some percentage to the whole income. The section provides a formula for determining the ratio or percentage to be applied to the whole income. Section 19 is intended to cover cases where, on account of the particular nature of the business, the formula of section 18 would be impracticable or inequitable and would work an undue hardship upon the taxpayer. In such cases the taxpayer may employ a different allocation formula, subject to commission approval, or the commission itself may prescribe a formula.
Article 79 of the regulations provides that such taxpayers must make application and secure permission of the commission to use or change an allocation method — whether the method be by direct accounting (sec. 17) or by percentage formula applied to the whole income (secs. 18 and 19). Other provisions of article 79 need not be noted.
Article 12 of the regulations relates specifically to methods of accounting, provides that returns be made on the basis used in filing return for the preceding year, unless otherwise authorized, and further provides that “where a change of accounting period or methods is desired the taxpayer should file his return on the new basis, accompanied by a statement specifying the classes of items differently treated under the two methods and specifying all the amounts which are duplicated or entirely omitted as a result of the change.”
Appellant’s books are set up on the direct accounting basis (sec. 17) for the purpose of segregating Kansas income. Separate accounts are kept for each Kansas store. For the years in question the returns showed net receipts of Kansas stores and apportionment of such net receipts- — to indicate Kansas income — and were accompanied by a statement showing the method followed in making such apportionment, as heretofore stated in this opinion. It will be noted that there is not involved any computation based upon the total income within and outside the state. The company contends that this apportionment was an addition to its direct accounting system and has nothing to do with allocations made by formula under section 18 or 19, and that the statement was submitted for commission approval in compliance with regulation 12. The commission contends that this was a new method of allocation and that sections 18 and 19 are applicable and required formal application upon commission form provided for the purpose. And the commission says that since sections 18 and 19 apply it was incumbent upon the taxpayer to demonstrate that the formula provided in section 18 was “impracticable” and “inequitable” and would work an undue hardship upon it and that it failed to offer any such proof. Whether formal application should have been made or not, it seems clear that the apportionment of net Kansas receipts does not fall within the formula methods of sections 18 and 19, since it does not involve the company’s total receipts within and outside the state. Whether it was in fact a change in “accounting” or a change in “allocation” is a technical question which, in view of the whole record, we do not consider necessary to determine. We briefly review the salient facts of the record.
The returns were regularly made as indicated, disclosing fully the methods of accounting and apportionment of net receipts. In due course they were audited and the taxpayer was notified that apportionment or allocation of any part of the net receipts to sources outside Kansas had been disallowed and that a tax had been imposed upon the total net receipts. Thereupon that company notified the commission that it desired a hearing upon the issue, as provided for in the statute, and such a hearing was duly held. All parties were represented, arguments were made, and the whole issue fully considered. After adverse ruling the company made timely appeal to the district court, and from the judgment there entered appeals to this court. The record, which includes the correspondence between the commission and the company, discloses that at no time during the pendency of the matter before the commission, either before or during the hearing, did the commission notify the company or contend that there had been any failure to follow procedural requirements of the statute or of the regulations. Nor was such issue raised in any pleading filed by the commission in the district court. It appeared first in the argument in the district court. The only issue here is the one which was squarely raised by the commission and determined by it. There can be no contention that the administrative body was not given full notice and full opportunity to pass upon the taxpayer’s contention. Appellee does not here contend that any new contention was made by appellant in the trial court or that we are asked to pass upon any substantive question except the one involved in the commission hearing. We do not say that under other facts and circumstances the contentions of the appellees as to procedural defects might not be well founded. We only say that upon the facts of this case the appellant is clearly entitled to judicial review of the commission’s holding and of the judgment of the trial court.
The judgment is reversed and the state tax commission directed to determine, in harmony with the conclusions heretofore stated, what portion of the net receipts in issue is properly taxable as income derived from property located, and business transacted, in Kansas, and to make such lawful and appropriate orders in connection therewith as may be necessary in the premises.
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover damages on account of the breach of a contract. Judgment was for plaintiff. Defendant appeals.
The petition first alleged that plaintiff was a resident of Bronson, Kan., and that defendant was a Michigan corporation transacting business in Kansas. The petition then alleged that on or about April, 1938, the defendant, through its agent, one F. L. Macarty, entered into an oral contract with plaintiff, by the terms of which the defendant agreed that the plaintiff should be made a Ford dealer in Bronson, and would be permitted by the Ford Motor Company to buy products for resale in the customary way as a Ford dealer. The petition next alleged that as a part of this agreement it was agreed that plaintiff would buy a building in Bronson and would enlarge it so as to provide a place in which to give service to Ford automobiles and would purchase certain signs, parts bins and tools, peculiarly designed and appropriate to be used in connection with a Ford agency; that plaintiff should proceed at once in the performance of his duties as Ford dealer by soliciting sales of Fo^d automobiles. The petition next alleged that in reliance upon this agreement plaintiff paid $650 for a building and spent $780 enlarging and repairing it at the suggestion of the agent of defendant; that he bought a Neon sign for $35, parts bins for $36 and tools specially designed for Fords for $30 and made sales of three Ford automobiles or trucks upon which he would have made a profit of $600; that after plaintiff had done these things the defendant refused to make him a Ford agent and refused to make deliveries to him at the customary dealer’s price the automobiles and trucks he had sold. The petition further alleged that the building he had purchased, while of peculiar value to a person engaged as a Ford dealer, would not have been purchased by plaintiff except in reliance upon the oral contract, and after the refusal of the defendant to perform its part of the contract the building was not worth more than $750, and plaintiff had been damaged in that connection in the sum of $680; that the Ford signs purchased were valueless except to a Ford dealer and plaintiff had been damaged in that connection in the amount of $35; that the parts bins bought for $36 were worth only $18 and plaintiff had been damaged in the amount of $18 in that connection; that the tools bought for $30 were worth only $15 and plaintiff had been damaged $15 in that connection; and plaintiff had lost the commissions upon the three cars sold by him in the amount of $600.
Judgment was asked in the amount of $1,348 and costs.
To this petition the defendant by way of answer entered first a general denial. The answer then specifically denied that Macarty entered into any contract, as alleged in the petition, and further specifically denied that Macarty was the agent of defendant with authority to enter into an oral contract with the plaintiff, as alleged in the petition.
The reply was a general denial.
At the close of the evidence of plaintiff, defendant demurred to it on the ground that it did not prove facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. This demurrer was overruled. After the defendant’s evidence and the court’s instructions, the case was submitted to a jury, which returned a verdict in favor of the plaintiff in the amount of $800. Special questions were answered as follows:
“1. Was there a contract entered into by and between the plaintiff and defendant? Yes.
“If you answer the Question No. 1 in the affirmative, give the date and terms of such contract. 1-3-1938. Oral agreement.”
The motion of the defendant for a new trial and for a judgment on the special questions notwithstanding the general verdict was overruled. Judgment was entered on the verdict. Hence this appeal.
The first point argued by defendant is that its demurrer to the evidence of plaintiff should have been sustained. Defendant presents its argument on this point under several headings. It first argues that plaintiff failed utterly to show a contract of any kind. This argument requires an examination of the evidence. In brief, the plaintiff testified that Macarty came to his place of business in Bronson in the fall of 1937; that Macarty introduced himself as representing the Eord Company as a road man; that he came in response to a letter plaintiff had written stating that he would like to be a Ford agent at Bronson. He testified further that on January 3, 1938, Macarty sold him a Ford car for $500, the dealer’s price; that no sales tax was charged, and he sold this car for about $800 and gave the first title on the car to the purchaser. He testified further that subsequent to this Macarty told him that if he had a place and a proper service department he would give him the agency; that he went with plaintiff to look at different properties, and suggested the building he finally purchased and told him he would have to build an extension to it; that he bought the building April 18, 1938, and paid $650 for it in reliance on the promise of Macarty that he was to get the Ford agency; that he rebuilt the building as Macarty told him to, and it cost him $780; that a Mr. Baker from the Ford Motor Company was there specifying how the work should be done; that he paid $35 for a Ford Neon sign; that he paid $36 for some other article and sold it for $18; that after the building was completed Macarty said he wanted him to take him to Kansas City to sign a contract; that he signed a paper in Kansas City and Macarty told him to go back to Bronson and sell cars, and Macarty took him back; that when they returned to Bronson he asked Macarty to let him have the car they had driven down in; that Macarty did let him have the car and the man to whom he wished to sell it wanted a different type of car so Macarty took this car back; that he was to get the type car his customer wanted from Kansas City; that in May a Mr. Griffin came down and told him they were not going to give him the agency because they were going to cut out the small places and open up in the larger ones; that he talked to him about the money he spent; and Griffin said they would buy the sign and make it right with him; that after he had fixed the building up it was reasonably worth $750. This story was corroborated in several particulars by the banker at Bronson and one dr two other witnesses.
Very little is accomplished by detailing evidence in an opinion of this court. Without going further into detail, there was ample evidence to warrant the trial court in submitting to the jury the question of whether a contract was made between plaintiff on one side and Macarty, the agent of the Ford Company, on the other. What that contract was we shall see presently.
Defendant next argues that even if there was a contract proved it was so vague and indefinite in its terms as to be void. The evidence set out above proved a contract whereby the plaintiff agreed to buy a certain building, make specified repairs, and buy certain equipment, and in return the defendant was to make him its agent. There could hardly be an oral contract proved with any more certainty. The proof further established a complete performance on the part of plaintiff. It must be remembered that this is not a case where the parties entered into the written agency contract about which so much has been said in the brief of defendant, and then for some reason the company saw fit to terminate the agency. In this case every requirement made by the defendant was complied with and when time came for it to perform it refused to do so. In King v. Machine Co., 81 Kan. 809, 106 Pac. 1071, this court said:
“Expenditures necessarily made in anticipation of, or in preparation for, the performance of a contract in which default is made or fulfillment prevented are usually recoverable.” (Syl. ¶ 1.)
See, also, Hope v. Sinclair Refining Co., 136 Kan. 353, 15 P. 2d 432:
Defendant next argues that the testimony of plaintiff concerning the oral negotiations between the parties failed to show any terms or conditions of the purported contract and the jury found none. This argument is based on the failure of the testimony of plaintiff to state the length of time available to plaintiff for performance, the time within which plaintiff should perform, the effective date of the purported contract, the termination date thereof, the prices at which automobiles and Ford Motor Company products should be bought and sold, the quantity of goods to be sold by defendant and purchased and resold by plaintiff. The trouble with that argument is that this is not an action on account of the termination of an agency-contract. The contract upon which recovery was sought was the failure of the defendant to make plaintiff its agent after it had caused plaintiff to make the expenditures, relying on being made the agent. There was some reference to anticipated profits from the sale of cars, but the jury quite evidently based its verdict on. the expenditures the plaintiff had made. The verdict was for $800. When the evidence as to the price paid for the building for the repairs and for the equipment and then the testimony as to the present value of the building is examined it is clear that thé jury did not make any allowance for loss of profits on the sale of cars. When the jury was asked whether a contract had been entered into between plaintiff and defendant it answered “yes.” When asked to give the date and terms of the contract it answered as to the date “1-3-1938.” This was the date when the car was sold to plaintiff by defendant. It certainly was the date that marked a definite understanding between parties, even though Macarty was still to help plaintiff select a building, and to tell plaintiff what he must do in the way of repairing it. As to the terms of the contract, the jury answered “oral agreement.” This was quite evidently a reference to the oral contract pleaded in the petition and proved by the testimony, that is, to make the plaintiff the agent when plaintiff did the things required.
Defendant next argues that even if the terms of the formal dealership contract were incorporated into the purported oral agreement it is likewise unenforceable and void because of indefiniteness and uncertainty. Here the defendant refers to the contract which plaintiff signed in Kansas City. The argument under this head is that the dealership contract ordinarily entered into by the Ford Motor Company is unenforceable. With this argument we are not concerned here. The contract upon which the action was brought and which was proved by the plaintiff was an oral one.
The defendant next argues that the purported contract is unenforceable because lacking in mutuality. This argument is also directed at the written contract. What has just been said applies with equal force to this argument.
Defendant next argues that the purported agreement is completely lacking in consideration. Under this head defendant says “nothing passed from either party to the other in exchange for a promise, there was no promise by plaintiff, and accordingly defendant could not be bound.” The record discloses that the plaintiff fully performed the contract on his part by meeting certain requirements and the defendant promised to make him the agent.
The defendant next argues that breach of an agreement to enter into a specific dealership contract would give no greater right of recovery than would breach of the dealership contract itself. This argument has been dealt with in this opinion when considering the argument that the contract was too indefinite in its terms to be enforceable. The fact is, a Ford agency is a valuable thing. The defendant agreed to give this agency to plaintiff if he did certain things. He did them, and then defendant refused to perform its obligation under the contract. There can be no doubt about this. The plaintiff testified that one agent of the defendant stated that plaintiff would not be made the agent because the company had decided not to have agencies in the small towns, and a witness for defendant testified that the defendant did not perform because the plaintiff could not meet the company’s financial requirements. The fact is, however, that it did not perform. The jury was entitled to believe the story of plaintiff.
Defendant next argues that plaintiff failed to show that the agent with whom he dealt had authority to bind the defendant; and the dealership contract, if relied upon by plaintiff, shows on its face that defendant is not bound thereby. On this point the evidence shows that Macarty called on plaintiff in answer to a letter plaintiff had written the company asking about being made agent; that he took plaintiff to the city after assisting plaintiff in selecting a building, and advising him as to what changes would be necessary. Macarty himself testified that part of his duties was arranging for Ford dealers in towns where there were none. It must be remembered that the contract sued on was not the written agency contract, but an oral contract to make plaintiff an agent.
Defendant next argues that plaintiff failed to show that he sustained damage as the result of a claimed breach of contract, and is in any event precluded by the dealership contract from recovering damages of the type awarded. We have already pointed out that plaintiff showed that he lost by buying and repairing the building and buying equipment just about what the jury awarded him.
The defendant next argues that the answers to the special questions were evasive, unresponsive and insufficient, and the trial court erred in discharging the jury before the special questions were responsively answered. We have already dealt with this argument.
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 on a note for $1,000 and to foreclose a chattel mortgage given by the defendant Albert F. Stockman to secure it on his undivided two-thirds interest in a crop of wheat then growing upon certain described leased land in Harvey county. The record presents several controversies between plaintiff and the respective defendants, or between defendants respecting liens on this crop, or priority of such liens. We think best separately to state these controversies, the judgment of the trial court thereon, and our decision.
The defendant, the United States, by H. D. Baker (W. H. Burke substituted), collector of internal revenue for the district of Kansas, in its answer denied Stockman was indebted to plaintiff, and alleged the note and mortgage sued on were without consideration, or, if any indebtedness evidenced by these instruments ever existed, the same has been paid, and by cross petition claimed a first lien upon Stockman’s share of the wheat because of a federal internal revenue tax levied against Stockman. The trial court found that plaintiff, who is the grandmother of Stockman, over a period of several years had furnished sums of money to Stockman, the amount of which far exceeded $1,000, and that she had made and kept a record of these transactions in a little book she had; that under date of October 1, 1936, Stockman signed a note, payable to plaintiff, for $1,000, and under date of May 3,1937, Stockman executed the mortgage in question, and this was recorded May 5, 1937, in the office of the register of deeds of Harvey county. In March, 1937, Stockman pleaded guilty to liquor violations in the United States district court of Kansas. In February, 1937, an assessment list was received by the collector of internal revenue for Kansas from the commissioner, assessing a liquor tax of $3,285.60 against Stockman. On April 3,1937, a notice of demand was mailed to Stockman, and on April 13 a second notice was mailed to him, neither of which was returned, and on April 23 a warrant for distraint was duly issued and served on Stockman May 10. On May 5, 1937, a notice of the tax lien was filed in the office of the clerk of the United States district court at Wichita, and on May 6,1937, a notice of the tax lien was filed in the office of the register of deeds of Harvey county, and on the same day with the register of deeds of Sedgwick county, in which county Stockman then was living. The trial court found that both the defendant Stockman and the plaintiff Schmitz were aware of the claim of the government at the time of the execution and delivery of the chattel mortgage in question, and that the chattel mortgage was given for the purpose of evading the government tax. The court concluded that the chattel mortgage cannot be set up as a prior claim to the government tax lien, and on this point rendered judgment accordingly, giving the government a first lien for the balance due on the tax, giving plaintiff a personal judgment against Stock-man for the amount due on the note, and giving her a lien second to that of the government upon the wheat. Plaintiff has appealed from that part of the judgment which allowed the government a lien superior to hers on the wheat. We think the point is well taken.
Under the established law of this state a debtor has a right to prefer creditors, and in doing so may pay or secure one of his creditors so long as such performance is in payment of a bona fide preexisting indebtedness. (See Brecheisen v. Clark, 103 Kan. 662, 176 Pac. 137; People’s State Bank v. Dierking, 143 Kan. 617, 56 P. 2d 85; First Nat’l Bank v. Cottingim, 145 Kan. 330, 65 P. 2d 293.) The federal statute, 26 U. S. C. A., § 1560, 1940 ed., § 3670, imposes a lien in favor of the government on the property of the taxpayer. Under 26 U. S. C. A., § 1561, 1940 ed., § 3671, the date of the lien, “unless another date is specifically fixed by law,” is the time the assessment list is received by the collector of internal revenue for the district, and by 26 U. S. C. A., § 1562, 1940 ed., § 3672, it is provided:
“Such lien shall not be valid as against any mortgagee, pledgee, purchaser, or judgment creditor until notice thereof has been filed by the collector— (1) In accordance with the law of the state or teiTitory in which the property subject to the lien is situated, whenever the state or territory has by law provided for the filing of such notice; . . .”
Our pertinent statute (G. S. 1935, 79-2605) reads:
“That notices of tax liens under the internal revenue laws of the United States, and certificates of discharge thereof, may be filed in the office of the register of deeds in any county in the state of Kansas, and when so filed shall be notice to all persons claiming an interest in the pi’operty of the person or persons against whom filed: . . .”
In United States v. Beaver Run Coal Co., 99 F. 2d 610, the federal statute above quoted is considered and applied. It is pointed out that the statute was enacted by congress to avoid the hardships re- suiting from the interpretation of the then existing statute by the United States supreme court in United States v. Snyder, 149 U. S. 210, 37 L. Ed. 705, 13 S. Ct. 846, which case is cited and relied upon by counsel for the government in this case. It was there held:
“Positive legislative enactments prescribing conditions essential to existence and preservation of statutory lien cannot be disregarded.
“A mortgage lien was entitled to priority over government’s tax lien upon mining properties, where tax lien notice was not filed pursuant to state law until long after mortgage had been executed and recorded. . . .
“Where United States had failed to file notice of tax lien as required by statute, court would not read into statute any limitation based upon equitable doctrine of bona fide purchasers without notice so as to give tax lien priority over lien of mortgagee which, at the time of execution of mortgage, knew that mortgagor owed taxes.” (Headnote, Iflf 2, 3, 4.)
Counsel for the government argue that there was insufficient evidence to sustain the finding of the court that plaintiff’s note and mortgage evidenced a valid indebtedness. We have carefully examined the record and find ample competent evidence to support the judgment of the court on this point. Counsel for the government cite 26 U. S. C. A., §§ 1580 to 1584, pertaining to distraint and exemptions. This argument is beside the point. This is not a distraint proceeding, and there are no claims for exemption. The controversy here, particularly between plaintiff and the government, is the priority of liens. We think the trial court erred in holding that the government lien was prior to that of plaintiff.
Both the plaintiff and the United States government appealed from the adverse judgments pertaining to claims of some of the other defendants. These will now be considered.
George W. Wear owned the land on which the wheat was grown. He had leased this to Stockman for a stated sum, cash rent and one-third of the wheat, delivered. He claimed a balance due of $50 on the cash rent and that this was a lien on, Stockman’s share of the wheat superior to that of the plaintiff, or that of the United States. The trial court so found and adjudged. There was no error in this ruling. (G. S. 1935, 67-524; Firstenberger v. McBee, 113 Kan. 110, 213 Pac. 813; Shell v. Guthrie, 129 Kan. 632, 284 Pac. 420.)
G. E. Woodworth had a past-due chattel mortgage on Stockman’s combine harvester. The legal effect of this was that he had title to it. He agreed Stockman might use it to cut the wheat if he would pay for such use out of the wheat threshed. Stockman used the machine to cut all of the wheat but fifty-three acres, when it broke down. In payment of that, he paid to Woodworth wheat of the value of $116.16. Lloyd Smith, a neighbor, harvested the remaining fifty-three acres of wheat under employment by Stockman. To pay him for this Stockman had him take a load of the harvested wheat to the Midland Flour Milling Company, where it was sold. The money received was $50 more than enough to pay Smith and he gave that sum to Stockman. Abe Unruh was the thresherman, and at Stockman’s direction was paid $70.38 by the N. Sauer Milling Company, which purchased some of the wheat. The trial court held the harvesting and threshing were necessary in order for the wheat to be marketable so anyone could get money out of it, and that these parties acted in good faith without actual knowledge of the lien of plaintiff, or of the government. On behalf of the United States complaint is made of these rulings. With the lien of the plaintiff and the United States of record we think these parties cannot be said to have dealt with this wheat innocently. However, under our statute (G. S. 1935, 58-203) harvesters and threshermen may have a lien upon the crop harvested or threshed, which is “preferred to that of any prior chattel mortgage or encumbrance.” Subsequent sections provide for the filing of such a lien and for a suit to enforce it. These parties, having been paid, did not file their lien, but this is no reason the statute fixing their right to the lien should not be considered. As we understand it, under the federal statute there are two general methods of procedure for the government to collect a tax of this kind. One is by distraint, but, as previously noted, this was not the procedure invoked here. Perhaps that procedure would not have been available as to an immature, growing crop of wheat. (Isely Lumber Co. v. Kitch, 123 Kan. 441, 256 Pac. 133.) The other is by an action in the federal district court for the determination of the government’s lien’upon a particular property, and if it was found to exist, to enforce it. (26 U. S. C. A. 1568, 1940 ed., 3678.) In that type of an action other lien claimants should be made parties defendant and a receiver may be appointed, if necessary. Had the government pursued that remedy in this case the action might have been commenced before harvest, in which event the necessary expense of harvesting, threshing and marketing the wheat would have been a proper charge in the receivership. While this action was in a state court, we think the government is not entitled to any greater remedy, as against those who harvested and threshed the crop, than it would have had in the federal court action above mentioned. We therefore approve the judgment of the trial court with respect to these claimants, except in one particular. The principle just stated would not authorize the payment of the $50 by Smith to Stockman, and as to that we think plaintiff and the government were entitled to judgment as against Smith and the Midland Flour Milling Company. Appellant also contends that the evidence does not support the finding of the trial court that Abe Unruh’s claim for threshing was for threshing this particular crop; that it must have been for some threshing bill of a prior time, and that the evidence discloses the crop in question was cut by combine. We think this point is well taken.
At harvest time the defendant Stockman hauled four truck loads of the wheat into Sedgwick county, where he had his wife’s sister, Irene Knebler, drive the truck to the elevator of Edward M. Kelley, doing business as the Commerce Milling and Elevator Company, where the wheat was sold. Kelley paid $203.16 for the wheat by check to Irene Knebler, who turned it to the defendant, Marie Stockman, the wife of Albert F. Stockman. The trial court held Kelley not liable, on the ground he was an innocent purchaser and paid full value. Complaint is made of this ruling. We think it was erroneous and that the court should also have held Irene Knebler and Marie Stockman liable.
Stockman delivered 167 bushels of the wheat to Frank N. Ketzner in return for seed wheat Ketzner had furnished him. Ketzner sold this wheat to the Farmers Cooperative Elevator at Mount Hope. The court held neither of these parties was liable. Complaint is made of this ruling. We think it was erroneous. We find nothing in the record tending to show Ketzner had any lien on the wheat crop, and he cannot claim such a lien as against the plaintiff and the federal government.
The Midland Flour Milling Company received 610 bushels of Stockman’s share of the wheat. The only controversy respecting this relates to the basis of settlement. Appellants contend the settlement should be made as for a sale of the wheat at the time it was delivered to the milling company, which was about July 1, 1937, and at the price then being paid for wheat. The milling company claimed it should settle as of the date of the judgment in this action, August 31, 1939, and at the price of wheat at that time, less a storage charge as a warehouseman, at one cent per bushel per month since the wheat was received by it. The court’s judgment was in accord with the contentions of the milling company. Appellants complain of this. It was erroneous. The milling company was not licensed as a warehouseman; it had no authority to make a contract of storage. (Kipp v. Goffe & Carkener, 144 Kan. 95, 58 P. 2d 102.) We do not understand it claimed to have made a storage contract with anyone. The record indicates it received the wheat as it did other wheat it was buying at that time. The judgment for plaintiff and the federal government should be rendered on that basis.
The N. Sauer Milling Company is holding the sum of $269.40 for wheat purchased. It tendered this sum into court and asked the court to determine to whom it is due. The Buhler Milling Company bought a part of this wheat from Stockman, for which it paid $460.40. The court held the company liable. With respect to both of these items the judgment of the court was that the sum should be paid into court to apply upon the government lien. These orders should be modified so that when the sums are paid into court they should be applied first to the lien of the plaintiff, then to that of the government.
Fred Unruh purchased from Stockman some of the wheat and paid him for it the sum of $57.50. The court held he was not liable. We think this ruling erroneous and he should be required to pay this sum into court to apply upon the liens of plaintiff and of the federal government.
The mortgage to plaintiff was filed of record in the office of the register of deeds of Harvey county May 5, 1937. The notice of the tax lien of the federal government was filed of record in the same office the next day, May 6,1937. We think these liens have priority in the order of their filing dates. The filing of these liens gave notice to everyone who dealt with this wheat. We see no reason for anyone to say that he dealt with it innocently.
From what has been said the judgment of the court below should be affirmed as to the landlord’s lien and the harvesters and threshermen and in other respects reversed, with directions to enter judgment in harmony with the views expressed in this opinion. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal and cross-appeal from a judgment awarding damages for-taking plaintiffs’ twenty-acre country home for publicrpark purposes.
In 1934 the board of county commissioners of Wyandotte county set about the creation of a public lake and recreational park. Civil engineers made a tentative plat of the needed lands at a suitable site in the northern part of the county a few miles west of Kansas City.
Plaintiffs’ property was within the area of the tentative plat of the proposed park, and during 1935 a considerable acreage of the needed lands had been acquired by the county, but for nearly two years after the park project was set on foot the county made no effort to acquire plaintiffs’ lands by negotiation or otherwise.
In 1935 the project had progressed to the stage where the federal government had promised a grant of WPA funds, and by December of that year 700 laboring men had been put to work improving the grounds. Early in 1936 the employment of 1,500 men was authorized.
On June 22,1936, the county subjected plaintiffs’ property to condemnation proceedings. The award was $2,600, which plaintiffs declined and appealed.
On the evidence adduced, the jury returned a verdict for $4,700 in favor of plaintiffs, and made special findings which, in part, read:
“1. What do you find to be the reasonable market value of the plaintiffs’ tract on June 22, 1936? A. $4,700.
“3. What do' you find to be the use to which plaintiffs were putting their tract between May 1, 1935, and June 22, 1936? A. Homesite.
“4. What do you find to be the most valuable usage to which the plaintiffs’ tract was adapted on June 22, 1936, excluding any enhancement of value by reason of commencement of the work on Wyandotte county park, recreational grounds and lake on December 17, 1935? A. Small grain, fruit, for chicken farm and pasture.
“5. What do you find to be the reasonable market value of plaintiffs’ tract for the usage stated in the answer to question No. 4? A. $4,700.
“6. Do you find that the plaintiffs’ tract possessed any adaptability as lakeside property, except for the project developed by the defendant as its park, recreational grounds and lake development? A. No.
“7. Do you find any evidence of a demand for lakeside property in Wyandotte county prior to the commencement of Wyandotte county’s park, recreational grounds and lake? A. Yes.
“11. What do you find the reasonable market value of plaintiffs’ property to be as of June 22, 1936, for its most valuable use, taking into consideration its situation and surroundings, including the development of the Wyandotte county lake and recreational grounds, as of that date as generally known to the public? A. $5,100.”
Plaintiffs moved for judgment on the jury’s special finding No. 11. Defendant leveled various motions against the general and special verdicts and for a new trial. All motions were overruled and judgment was entered on the general verdict.
Hence this appeal and cross-appeal.
Touching the errors assigned by the county board, it is first contended that incompetent evidence of land values was introduced, particularly enhanced values caused by the commencement of the county’s project to create a public park in the vicinity of plaintiffs’ property. Passing for the moment whether any such evidence of enhanced values was incompetent, it is clear from special findings Nos. 1, 4 and 5, that the jury did not apply those enhanced values in reaching their general verdict. Counsel for defendant stress the fact that the testimony of only one of plaintiffs’ witnesses supports the verdict, whereas the testimony of several witnesses placed a lower valuation on the property. As to that, we have to remind counsel once again that this court has nothing to do with determining the comparative weight of conflicting oral testimony. In Tidball v. Railway Co., 97 Kan. 396, 155 Pac. 938, which was a railway-crossing accident case, one issue of fact was whether the plaintiff had been signaled to cross the railway track. He alone testified that he had, while four eye-witnesses positively swore that he had not. The jury believed the one witness and disbelieved the four, but there was nothing an appellate court could do in a matter of that sort. In State, ex rel., v. Telephone Co., 115 Kan. 236, 269, 223 Pac. 771, the late Mr. Justice Marshall estimated that this court had reiterated this rule of appellate review “five hundred times.” See, also, 5 C. J. S. 549 et seq.
Counsel for the defendant say, “We think the various opinions of value were confusing to the jury.” Perhaps so; that situation is likely to arise in any lawsuit where mere opinion evidence has to be used; but the jury’s business is to dissolve that confusion and to decide for themselves what witnesses appear to them to have given truthful and helpful testimony.
It is also urged that the court erred in excluding proffered evidence of what certain county records would show in respect to current prices paid for other lands in the vicinity of plaintiffs’. But defendant failed to follow up that proffered evidence as the code requires. It never did get into the record, consequently we have no means of knowing whether it was competent or material. (Hall v. Shaffer, 131 Kan. 109, 289 Pac. 442; Hunter v. Greer, 137 Kan. 772, 22 P. 2d 489; Wood v. McKeever, 141 Kan. 323, 328, 41 P. 2d 989.)
It is next urged that error inhered in the instructions to the jury— that they were “confusing, ambiguous and repetitious.” No particular defect in the instructions is cited in support of this general complaint, and a fair perusal of them does not reveal any debatable statement of pertinent law of which defendant can justly complain. True, there was an element of confusion belatedly injected into the lawsuit by defendant in the nature of a cross demand or counter claim for the rental value of the use and occupancy of plaintiffs’ property from the date of its condemnation, June 22,1936, until they vacated it on March 20, 1939. But nothing said in the instructions touching this detail is shown to have affected the main question at issue — the value of plaintiffs’ property at the date of its condemnation.
Still another error is assigned on the trial court’s refusal to send the jury out in the country to view the locus in quo. That matter was vested altogether in the trial court’s discretion. Within limits, as where it may aid the jury to get a clear understanding of the scene of a crime or accident, a view of the premises may be advisable. Again, a view may be inadvisable and lead to prejudicial error. (State v. Powell, 120 Kan. 772, 245 Pac. 128, syl. ¶ 16.) It is not conceivable how a view of plaintiffs’ property and its surroundings could have materially assisted the jury in ascertaining the value of the property condemned. Surely counsel do not take the view that the jury should ignore the evidence and substitute their own opinion of values based on a view.
Nothing approaching prejudicial error in the judgment as against the defendant board is made to appear.
On the cross-appeal plaintiffs contend that since the settled law is that a condemnation award for property taken by eminent domain should be based on its value for the highest and best use to which it is adaptable (Lee v. Missouri Pac. Rld. Co., 134 Kan. 225, 232, 5 P. 2d 1102), they were entitled to judgment for the amount the jury found that value to be — $5,100. (Finding No. 11.) The law books have much to say about when, and when not, a valuation of property condemned for some public purpose should include some enhancement because of its availability for the particular use for which it is condemned. While the jury specially found that at one time or another, and at some unstated place or places in Wyandotte county, there was a demand for “lakeside property” prior to the commencement of Wyandotte county’s park, recreational grounds and lake (finding No. 7), there was no evidence that there was such a demand for property in the vicinity of plaintiffs’, and findings Nos. 8 and 9 are specifically to the contrary. Counsel for these litigants cite and quote a wealth of authorities, but we think the pertinent law was fairly stated in the court’s instructions thus:
“(9-d) The county, hereinafter referred to as the condemnor, has exercised the right of eminent domain, and by that right has deprived plaintiffs, claim ants, of the entire tract of twenty acres of land and all improvements thereon. The condemnor had the right to exercise that power and deprive the claimants of their land, but as a condition to the exercise of that right is required, under the law, to make full compensation to claimants for the value of said land, including improvements as said land — including improvements — stood on June 22, 1936.
“(9-e) In arriving at market value, you will consider the situation and condition of said land, including improvements, as it stood on the 22d day of June, 1936, and all facts and circumstances as shown by the evidence as of that date and will disregard all evidence of situations, conditions, circumstances, happenings and occurrences subsequent to that date, or not known to exist as of said date, and fix the market value in the light of the information which a prospective purchaser would have had or been able to ascertain as of that date. You will not, however, depreciate or enhance the market value of said land by reason of the fact that the condemnor had prior to that date intended to take said land or drawn a plan by which it indicated an intention to appropriate or acquire this land for park or recreational grounds; but for the purposes of this case, you will consider it as land which the claimants had a right to sell and any buyer had the right to buy upon the open market, unaffected by any intention of the condemnor whether that intention was public or secret.”
These instructions were in substantial accord with the weight of authority. In Mowry v. Boston, 173 Mass. 425, 53 N. E. 885, the following statement of the pertinent law was quoted approvingly:
“ ‘The owner of land taken for public use cannot recover therefor an enhanced value which it has acquired merely by reason of the taking, or as the result of the improvement which the taking of that particular land for the specific purpose for which it is taken contemplates; for from the very nature of things its appropriation is a condition precedent to the existence of the improvement, and it cannot share in the effect of the change to create which it must be used.’ ” (p. 428.)
In United States v. Certain Lands, Town of Narragansett, 180 Fed. 260, it was said:
“Where, from the inception of the public improvement, it is known with practical certainty that the land will be required for the public project, this in itself negatives any supposed advantages which might accrue to the land held in private ownership by reason of its adjacency to the grounds of a public capítol, park, or like improvement. If from the outset it is known that the lands must be taken for the public purpose, it is unsound to base their valuation upon any supposed advantages arising from their continuance in private hands as lands adjacent to public grounds.” (p. 261.)
In United States v. Chandler-Dunbar Co., 229 U. S. 53, 57 L. Ed. 1063, it was held:
“One whose property is taken by the government for improvement of the navigation of the river on which it borders is not entitled to the probably ad vaneed value by reason of the contemplated improvement. The value is to be fixed as of the date of the proceedings. . . . The owner of a separate parcel is not entitled to additional value resulting as part of a comprehensive scheme of improvement, requiring the taking of his and other property.” (Syl.)
See, also, 2 Lewis on Eminent Domain (3d ed.), 1329-1330; 1 Nichols on Eminent Domain (2d ed.), 675-677; 10 R. C. L. 131-132, 5 Perm. Supp. 2656; Anno. — Eminent Domain — Damages—Special Value, in 124 A. L. R. 910 et seq.
The contention of the plaintiffs as cross-appellants cannot be sustained.
On the appeal and the cross-appeal the judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
The question here presented is the right of an attorney for one of the parties in an action for divorce to enforce a contract providing for a contingent fee.
On March 5, 1937, Irvin J. Dannenberg commenced an action against his wife, Doris Thompson Dannenberg, for a divorce, alleg-' ing as grounds extreme cruelty and gross neglect of duty, and that a postnuptial contract settling property rights had been entered into. On May 1, 1937, Mrs. Dannenberg, by F. J. Rayfield as her attorney, filed an answer and cross petition in which she alleged the agreement was unfair and inequitable to- her and was secured by unfair means. The action was tried on May 13, 1937, and resulted in a judgment of divorce to the plaintiff, but setting aside the post-nuptial contract and awarding alimony of $960 to the defendant, payable in installments, and that plaintiff should pay into court for the benefit of defendant’s attorney, Rayfield, the sum of $100 payable in four installments. Mr. Rayfield died in December of 1937. On December 29, 1938, Mable I. Rayfield, as administratrix of the estate of E. J. Rayfield, caused to be served upon the plaintiff and the clerk of the district court and to be filed in the divorce action a notice of attorney’s lien claiming a lien on any moneys paid into court to apply on the judgment for alimony, the lien being claimed on account of a contract between Doris Thompson Dannenberg and F. J. Rayfield, a copy of which was attached to the notice. The contract was dated May 12, 1937, which was after the answer had been filed and the day before the action was tried. The contract provided that Doris Thompson Dannenberg employed Rayfield as attorney to represent her in the divorce action and—
“It is agreed that the compensation of the said attorney for said services so to be rendered shall be the fees as allowed by the district judge of Brown county, Kansas, and in addition to this an amount equal to fifty percent of any money or property that may be recovered by said attorney for said Doris Thompson Dannenberg, and each first and second parties agree with the other that they will not without the concurrence of the other make any property settlement.”
In March, 1939, Mrs. Dannenberg filed her motion asking that the lien be set aside and held for naught for five asserted reasons, including that the agreement between her and Rayfield was against public policy and that it was never presented at any time to the court for its consideration.
Evidence was presented on the hearing on the motion. It was conceded that the $100 allowed to Rayfield under the divorce decree was paid by the plaintiff and received by Rayfield and also that prior to the filing of the notice of attorney’s' lien the plaintiff had paid into court installments of alimony aggregating $625, all of which had been paid to defendant or her attorneys other than Ray-field. At the time of the hearing, installments of alimony aggregating $100 were due.
The trial court found that the contract was not presented to the court, nor called to its attention in the trial of the divorce action; that the contract provided the compensation to Rayfield should be the fee allowed by the court and in addition one-half of any alimony awarded defendant, and was in no manner dependent on the reasonableness of the fee allowed by the trial court; and that the contract was unfair, unreasonable, unjust, unconscionable and inequitable and should not be enforced. The court further found the failure to submit the contract was unfair and an imposition on the court. It concluded there was nothing due to the administratrix by reason of the contract and that all alimony payments made or to be made were discharged and cleared of any lien or claim of lien, etc. The motion of the administratrix for a new trial was denied and she perfected an appeal by serving notice on Doris Thompson Dannenberg, hereafter referred to as the appellee, and the clerk of the district court.
Appellant’s contentions are that the trial court was without jurisdiction to determine the matter in the proceedings before it, but that if it did have jurisdiction, its findings were contrary to the evidence and its judgment was erroneous.
On the hearing 'of the motion the administratrix objected to the hearing or consideration of the motion for the asserted reason the trial court was without jurisdiction, and she contends here that the remedy of the appellee was by an independent action and not by motion in the original action and that the trial court was without jurisdiction. There is no controversy here concerning the service of the claimed attorney’s lien, nor that it was filed in the divorce action, and that it was intended to impress a lien in favor of Rayfield on the unpaid installments of alimony due from the plaintiff in that action. It may not be doubted in an ordinary case that such procedure would be proper, and that upon a hearing, and without formal pleadings, an appropriate order could be made establishing the amount of the lien and providing for distribution of moneys in the hands of the clerk. (See G. S. 1935, 7-108, 7-109.) Appellant argues, however, that the only method in which there could be a final determination of the rights of the parties would be upon filing of a petition with subsequent pleadings, hearing, judgment, etc. Our attention is directed to certain provisions of the code of civil procedure, but no authority is cited applicable to a situation such as was presented to the trial court. It would appear that if the attorney claimant could have an informal hearing, such as is provided for in G. S. 1935, 7-109, the person against whom the claim was made was entitled to like informality. A somewhat similar situation was before this court in Epp v. Hinton, 102 Kan. 435, 170 Pac. 987, where the question was the right to a jury trial of the party whose interest was to be subjected to payment. It was held the proceeding to enforce an attorney’s lien was special and summary in character (1. c. 438), the syllabus reading, in part:
“Being a special statutory proceeding of an equitable nature, neither party is entitled to a trial by jury as a matter of right.” (Syl. ¶ 2.)
From the terms of the statute and under the reasoning of the above case, we conclude the trial court had jurisdiction to hear the matter in the manner in which it was presented.
We need not notice appellant’s contention that any of the trial court’s findings may be contrary to or unsupported by evidence. The basis of the claim for fees is the contract, the execution of which is admitted by all parties. From the paragraph quoted above, it appears an agreement was made for an attorney’s fee contingent upon the amount of alimony allowed, and that an agreement was also made there would be no property settlement without concurrence of client and attorney. For both reasons the contract was void as against public policy.
The overwhelming weight of authority is to the effect that a contract between a client and attorney in a divorce action providing for a fee contingent upon the amount of alimopy awarded is void as against public policy. (See 5 Am. Jur., p. 361 [Attorneys at Law, § 166] and the various decisions and annotations cite.d; also, see, 19 C. J. 237 [Divorce, § 557].)
In Comer v. McGuire, 121 Kan. 820, 250 Pac. 345, this court had before it a contract set out in full in that opinion. That contract . has substantially the same provisions as are contained in the contract now before us. In discussing that contract, this court said:
“The contract was void as against public policy (Railway Co. v. Service, 77 Kan. 316, 94 Pac. 262). Plaintiff contends the provision for payment of a fee in the event defendant did settle, compromise, or dismiss her divorce action, left her free to take such a course, and purged the contract. Defendant contracted, however, not to settle, compromise, or otherwise dispose of the divorce action without her attorney’s consent. She could conclude no arrangement with her husband, however desirable, independently of her attorney, without breach of contract, and the provision referred to was in effect a stipulation relating to compensation in case of breach of contract. Reconciliation of the parties to the divorce action and amicable adjustment of their affairs not extending to full reconciliation, were thus definitely restrained. The contract in the case of Railway Co. v. Service, supra, related to an action for damages for personal injury. The contract was held to be obnoxious to public policy, whether viewed in the light of reason or authority. If there may be degrees of odiousness, a contract interposing a barrier to full control by the plaintiff over a divorce action is more deserving of censure, because of the nature of the litigation. The result is, the judgment was erroneous.” (p. 821.)
And it has also been held in this state that in an action other than for divorce, a contract between attorney and client that the client shall not settle the cause of action without the consent of the at torney, is contrary to public policy and void. (See Railway Co. v. Service, 77 Kan. 316, 94 Pac. 262, and Graham v. Elevator Co., 115 Kan. 143, 146, 222 Pac. 89. See, also, annotation on the subject in 121 A. L. R. 1122.)
Appellant in her brief cites two of our cases approving contingent fees: Stevens v. Sheriff, 76 Kan. 124, 90 Pac. 799, and Costigan v. Stewart, 76 Kan. 353, 91 Pac. 83, but neither is in point here.
The judgment of the trial court was correct and it is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for personal injuries filed in Wyandotte county, April 11, 1939. Defendant’s motion to require the petition to be made definite was sustained in part and overruled in part. Defendant filed an answer containing a general denial and a general plea of contributory negligence. Plaintiff’s motion that defendant be required to state the facts upon which it relied in its plea of contributory negligence was sustained. Defendant then served notice to take plaintiff’s deposition. Plaintiff moved the court to enjoin the defendant from doing so. This motion was sustained. Defendant has appealed (1) from the order enjoining the taking of plaintiff’s deposition, (2) from the order sustaining plaintiff’s motion directed at its answer, and (3) from the order overruling in part its motion directed at the petition.
Defendant is a common carrier of passengers at Kansas City, using gasoline-propelled motorbuses. Plaintiff alleged that “on or about” March 25, 1939, “at about” 8:30 o’clock p. m., plaintiff boarded one of defendant’s northbound buses “at or near” Eortysecond and Rainbow boulevard. The number or better description of such bus plaintiff did not know and could not state; that she paid her. fare and became a passenger and seated herself on the seat behind the driver of the bus; that on reaching her destination she pushed the signal button and rose from her seat preparatory to alighting and walked forward toward the front exit; that the driver -of the bus, whose name, number or better description she did not-know, suddenly and without warning slackened the speed of the bus and turned to the left, causing plaintiff .to be thrown forward against the seat occupied by the bus driver and down on her knees with great force, causing personal injuries, which are detailed; and several acts of negligence on defendant’s part were charged. Defendant’s motion to make more definite averred that its employees, and particularly the drivers of its buses, under its rules, are required to make reports of any accident known to them; that no such report had been made; that no complaint had been made by plaintiff to any of its officers or employees prior to filing the action, and asked that plaintiff be required to set out a more definite description of the bus and the time she boarded it, and a more definite description of the driver; also, that charges of negligence on the part of defendant be made more definite in several particulars, and that plaintiff be required to elect as between some of them because of their inconsistency. Upon the court’s sustaining the motion in part plaintiff filed an amended petition omitting one of the grounds of negligence charged in the original petition. The answer contained two paragraphs, the first being a general denial, and the second reads:
“If the plaintiff was injured at the time and place and in the manner alleged in her amended petition her own negligence directly contributed to her alleged injuries as a direct and proximate cause thereof.”
Plaintiff moved that this paragraph be made more definite by stating how and in what manner plaintiff’s own negligence directly contributed to her injuries. This motion was sustained May 18, 1939, and defendant was ordered to amend its answer within twenty days.
Defendant then served notice to take plaintiff’s deposition. On June 1 plaintiff applied for an order restraining defendant from taking plaintiff’s deposition for the reason there was no actual necessity therefor; that defendant was not proceeding in good faith to preserve testimony, but attempting to learn in advance the testimony of plaintiff; that it was a “fishing expedition” and was done for the purpose of harassing and oppressing the plaintiff. In support of that application plaintiff filed her affidavit that she intended to be present in court at the trial; that she knew of no reason that would prevent her from being personally present and testifying; that she is a young woman and not infirm to the extent of its being probable that she might not be available at the trial, and that she believed defendant was not proceeding in good faith to take her deposition to be used upon the trial. Counsel for defendant, and on its behalf, filed an affidavit that under its rules all employees are required immediately to make a written report of any accident, or supposed accident or injury, occurring on or near their buses; that no report had been made of the accident claimed to have been sustained by plaintiff either by any of its employees or the plaintiff, or anyone acting for her; that defendant and its counsel who handles its matters of this character knew nothing of the claimed accident until this action was filed; that in its answer it had filed a general plea of contributory negligence, which the court had ordered it to make more definite within the stated time; that it desired to obtain sufficient information to enable it to comply with the order of the court; that defendant and its officers knew of no means of obtaining such information-except from plaintiff; that plaintiff is a resident of Johnson county; that notice had been given to take her deposition in that county; that defendant was proceeding in good faith to obtain information about the alleged accident and information necessary to comply with the court’s order and to prepare its defense, and that it had no intention to harass or oppress plaintiff. Upon the hearing of this application the court considered the affidavits offered and made an order restraining and enjoining defendant from taking plaintiff’s deposition. Thereafter, and on June 7, defendant filed its amended answer. In the first paragraph defendant admitted its corporate existence and its business, as alleged in the petition, and denied other allegations thereof. In the second paragraph defendant protested the order of the court forbidding it to take plaintiff’s deposition, the order of the court overruling in part its motion to make the petition more definite, and the order of the court requiring defendant to make its answer of contributory negligence more definite, and averred that by reason of these orders it was compelled, for want of information which it could not obtain, to forego the filing of its plea of contributory negligence which it wished to set up.
We turn now to the questions argued. Did the court err in making the order enjoining defendant from taking plaintiff’s deposition? In its affidavit in opposition to the application for that order defendant set out its reasons for desiring to take the deposition, namely, to ascertain the facts which plaintiff claimed to exist in order better to make its defense, and particularly to enable it to ascertain information upon which to plead specific facts tending to show plaintiff’s contributory negligence. There was no contention that defendant expected to use the deposition on the trial, and in this court it is conceded, at least in effect, that no such use was expected to be made of it. Our former decisions do not authorize the taking of a deposition of a party to the action simply to get information and without the intention of using it at the trial. In In re Davis, Petitioner, 38 Kan. 408 (1888), 16 Pac. 790, it was held:
“The taking of the deposition of a party in a pending ease, merely to fish out in advance what his testimony will be, and to annoy and oppress him, and not for the purpose of using the same as evidence, is an abuse of judicial authority and process; . . .”
In Long v. Prairie Oil & Gas Co., 135 Kan. 440 (1932), 10 P. 2d 894, it was held:
“Our statutes (R. S. 60-2803, 60-2821 and 60-2822) authorize a party to a civil action, to take the deposition of the opposing party, but in doing so he must be proceeding in good faith for the purpose of using the testimony at the trial, and there must be some reasonable ground for believing that an actual necessity exists for doing so.’'
To the extent the question of good faith entered into the application for the order and defense thereto, the sustaining of the application and the making of the order amounted to a finding or holding of the court that defendant was not proceeding in good faith for the purpose of using the deposition, on the trial. To the extent the ruling was within the discretion of the trial court no abuse of such discretion is shown. (Hanke v. Harlow, 83 Kan. 738, 112 Pac. 616.)
Counsel for appellant cites statutes of the state of Missouri somewhat similar to our statutes mentioned in the syllabus above quoted, and advise us that under the Missouri practice depositions of an adverse party may be taken before the answer day in all civil actions, and makes an able argument that our statute should be so construed. Without stopping to analyze this argument carefully we call attention to the fact that for half a century at least our statute has been construed differently. We think if any change is to be made in this procedure it should be done by the legislature rather than by the court. '
We. think defendant’s motion to have plaintiff’s petition made more definite is not tantamount to a demurrer to the petition, or any material subdivision thereof, and that the order of the court overruling that in part is not one from which an appeal can be taken before final judgment. We feel compelled to hold that the same ruling applies to plaintiff’s motion that defendant be required to make the second paragraph of its original answer more definite, particularly in view of the fact that defendant complied with the court’s definite order to file an amended answer within twenty days, and in doing so stated that it did “forego the filing of its plea of contributory negligence which it wished to set up.” This holding need not seriously handicap defendant on the trial. While it is well recognized that contributory negligence is an affirmative defense, and ordinarily must be pleaded and proved (Stevens v. Railway Co., 84 Kan. 447, 113 Pac. 398), if the evidence on behalf of plaintiff discloses contributory negligence of plaintiff, those facts may be relied upon by defendant as establishing contributory negligence even though the answer is only a general denial (Altwein v. Street Railway Co., 86 Kan. 220, 120 Pac. 550), and if necessary in the progress of the trial the answer may be amended to conform to the evidence. (Jenkins v. Kansas City Public Service Co., 127 Kan. 821, 823, 275 Pac. 136.)
The rulings and judgment of the trial court are affirmed. | [
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The opinion of the court was delivered by
Six, J.:
This case concerns the admissibility of prior crimes evidence under K.S.A. 60-455 and the preservation of the admissibility issue on appeal.
John F. Clements, Jr., was found guilty of sexual battery (K.S.A. 21-3517) and aggravated criminal sodomy (K.S.A. 21-3506[a]). We acquired jurisdiction through a transfer by the Court of Appeals under K.S.A. 20-3016.
The case at bar is Clements’ third appeal to this court. See State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987) (reversed for improper admission of Clements’ prior conviction of sodomy [Clements Z]); and State v. Clements, 244 Kan. 411, 770 P.2d 447 (1989) (reversed for improper admission of an expert’s opinion as to characteristics of an individual who typically sexually abuses children [Clements ZZ]). The charges in the case at bar are based on incidents occurring after Clements 1 and II.
Our standard of review is abuse of discretion. State v. Blackmore, 249 Kan. 668, 670-71, 822 P.2d 49 (1991). We find no error and affirm.
Facts
In June 1989, Clements was working on electrical repairs at the home of D.W. and K.W. Seven children (including four foster children) lived in the home. Clements, who developed a friendly relationship with the family, was hired to work on other odd jobs at the house. The male children often were hired by Clements to assist him.
Clements and J.A., a 17-year-old boy and one of the four foster children, spent a day in June 1989 working together. J.A. testified: (1) He was taken to Clements’ house where he played a computer game while Clements took a shower; (2) while sitting at the computer his back was massaged by Clements (J.A. had previously complained of back pain to Clements); (3) Clements moved his hands around to J.A.’s front and into J.A.’s pants; (5) J.A. grabbed Clements’ hands and asked Clements to stop; (6) Clements then offered J.A. a ride to dinner, which J.A. accepted because he “was scared.”
J.A. informed the police about what had happened. Charges were not filed until later.
The second incident involved C.B., a 15-year-old boy. In November 1989, Clements drove C.B. and his friends around town and bought them a 12-pack of beer. After finishing the beer, the group gathered in the basement of the home of C.B.’s girlfriend. According to C.B., Clements came up behind him and rubbed his back and shoulders and asked if he could “go lower.” C.B. said, “No.”
Clements also hired C.B. to help with odd jobs. C.B. assisted Clements in siding a vacant house. C.B.’s friend, H.J., also worked on the house. C.B. related that, after H.J. left the job site, Clements began rubbing C.B.’s back and asked to “go lower.” C.B. testified that after he declined, Clements offered him $100 for a “hand job or blow job.” C.B. accepted the offer. Clements orally copulated C.B. C.B. told his girlfriend and his foster parents about the incident. The foster parents took C.B. to the police. C.B.’s trial testimony differed from his initial story. The first time C.B. spoke with a police officer, C.B. indicated that Clements had knocked him out and performed both oral and anal sex.
The State charged Clements with sexual battery (the incident with J.A.), aggravated kidnapping (C.B.’s original story), and aggravated criminal sodomy (the incident with C.B.). The aggravated kidnapping charge was dismissed.
A search warrant was issued for Clements’ residence. Among the items seized and admitted into evidence were baseball cards found in Clements’ bedroom. A photograph of the cards in the place where they had been located by the police was also admitted into evidence.
Prior to trial, motions concerning the admissibility of the fruits of the residential search and of Clements’ prior crimes were heard by the trial court. Clements filed a motion in limine to prevent the State from introducing evidence regarding both a 1982 Navy court martial and a 1989 Butler County conviction for aggravated indecent solicitation of a child, P.V.
The incident involving P.V. took place in May 1985. In September of 1985, Clements was charged with aggravated criminal sodomy. The 1985 charge resulted in several trials and two appeals. After three jury trials (including one hung jury) and two conviction reversals by this court, Clements I and II, Clements pled no contest to the reduced charge of aggravated indecent solicitation of a child. The chronology of the trials, appeals, and plea was before the jury in the case at bar by stipulation (orally from the bench by the trial judge and in writing from the parties).
The trial judge admitted the June 1989 Butler County conviction under K.S.A. 60-455 to prove intent as to sexual battery and to prove plan as to both sexual battery and aggravated criminal sodomy. A ruling on admission of the items recovered during the residential search was reserved until the attempted introduction of each item at trial.
Clements’ 1989 conviction was introduced under K.S.A. GO-455 through the testimony of P.V. P.V. testified that he sometimes saw Clements at a baseball card shop and that Clements had performed oral sex on him. P.V. was 11 years old at the time. (P.V.’s involvement with Clements is set out in Clements 1 and II.) No contemporaneous objection was made at trial to P.V.’s testimony. Following the State’s direct examination of P.V. and the luncheon recess, defense counsel moved to strike P.V’s testimony. The motion was denied.
K.S.A. 60-404 — The Contemporaneous Objection Rule
Clements’ counsel did not make a K.S.A. 60-404 contemporaneous objection to P.V.’s testimony.
Defense counsel did move to strike the testimony. However, “ ‘[w]hen a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal.’ [Citation omitted.]” State v. Hall, 246 Kan. 728, 739, 793 P.2d 737 (1990). See also State v. Jordan, 250 Kan. 180, 192, 825 P.2d 157 (1992) (admission of prior crimes evidence was not properly before the court due to the failure of counsel to object at trial).
The trial court in the case at bar instructed the jury regarding the limited purpose of the K.S.A. 60-455 evidence just prior to P.V.’s testimony and again in the written instructions at the close of trial. Even if the K.S.A. 60-455 prior crimes issue had been properly before us, we would not find an abuse of discretion in admitting the testimony of P.V. for the limited purposes of showing intent and plan.
Prior Crimes Evidence Under K.S.A. 60-455
The admission of evidence of prior crimes is governed by K.S.A. 60-455.
We have consistently stated that appellate review of the admission of prior crimes evidence is “limited to whether the trial court abused its discretion or whether the trial court admitted clearly irrelevant evidence.” State v. Blackmore, 249 Kan. at 671.
The trial judge reasoned that State v. Damewood, 245 Kan. 676, 783 P.2d 1249 (1989), controlled the case at bar.
Damewood’s convictions resulted from two incidents in which a 14-year-old boy was forced to engage in various sexual activities. Damewood’s criminal activities followed a pattern of becoming acquainted with the 14-year-old and eventually asking him to assist in Damewood’s beekeeping operation. On each occasion Damewood arranged to pick up the 14-year-old under the guise of assisting in the beekeeping activity. Each time, Damewood drove the boy to a secluded area and forced the boy to engage in the sexual activities. Damewood, 245 Kan. at 678-79.
Following K.S.A. 60-455, the trial court in Damewood permitted testimony by another boy regarding a previous similar encounter with Damewood. 245 Kan. at 679-80.
Clements argues that because he denied committing the crimes, “intent is proved by proving the crimes”; thus, prior crimes evidence has no probative value. He also reasons that prior crimes evidence “is relevant to show plan only when that evidence demonstrates a preexisting design or scheme. ... It is. the existence of a structured design, not common features, which determines admissibility.”
In Damewood, we dealt with arguments similar to those Clements raises here. See 245 Kan. at 681-82.
Clements attempts to discount the applicability and wisdom of Damewood on the admission of the testimony to prove intent and plan. Regarding the admission to show intent, Clements argues that State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989), and State v. Nunn, 244 Kan. 207, 768 P.2d 268 (1989), are controlling. According to Clements, these cases stand for the proposition that “[ijntent becomes an issue for the purposes of K.S.A. 60-455 only when the defendant admits doing the act in question but maintains that he did it in innocence.”
In Clements’ situation, intent must be proved to support a charge of sexual battery (a backrub does not, by itself, necessarily constitute sexual battery).
Damewood is controlling on the issue of plan. The general method used by Clements to entice young boys is similar enough to show a common approach that is tantamount to a plan.
Clements’ argument arising from Graham and Nunn is not persuasive.
The Baseball Cards
Clements asserts that the baseball cards seized from his home and admitted into evidence “served only as extrinsic evidence to validate the prior crimes evidence testimony of [P.V.]. The exhibits had no probative value whatever in the present case.”
The State suggests that Clements places too much emphasis on the cards, which circumstantially link the 1985 (the K.S.A. 60-455 prior crimes evidence) and the 1989 charges.
The baseball cards supply one evidentiary aspect of the general prior crimes issue. P.V.’s testimony of the 1985 incident was properly admitted under K.S.A. 60-455; consequently, admission of the baseball cards was not uniquely prejudicial.
The trial judge carefully considered the admission of the card evidence. A motion in limine to suppress the evidence was filed by Clements’ attorney. The trial judge declined to rule on the motion regarding each piece of evidence until trial. Defense counsel objected at trial. The cards were admitted after additional argument. We find no abuse of discretion in admitting the baseball cards.
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The opinion of the court was delivered by
Six, J.:
This is a first impression annexation case construing certain 1987 amendments to K.S.A. 12-521. The City of Topeka (City) challenges an order of the Board of Commissioners of Shawnee County (Board) denying the City’s petition to annex lands adjacent to the southwest comer of Topeka (the Sherwood area). The. City appealed the Board’s denial of the annexation petition to the district court. The district court’s affirmance of the Board’s order is now before us. The two issues are: (1) whether the district court applied the proper standard of review, and (2) whether there was substantial evidence to support the Board’s conclusion. Our jurisdiction is based on K.S.A. 20-3018(c) by transfer under our own motion.
The applicable standard of review requires us to first determine whether the district court observed the requirements placed upon it and then conduct a similar review of the Board’s action. In re Appeal of City of Lenexa, 232 Kan. 568, 576, 657 P.2d 47 (1983). The appropriate district court standard of review is analyzed as an issue in the opinion.
We find no error and affirm.
Facts
The City, in 1991, filed a petition with the Board to annex the Sherwood area. The Sherwood area consists of approximately 2,482 acres with an estimated population of 4,922 persons. The population of the area is projected to grow 10 to 15 percent over the next five years. The area is: (1) surrounded on two sides by the southwest comer of the City; (2) primarily residential, with few commercial businesses and no industrial development; and (3) characterized by having less than 1 percent of the land devoted to agricultural use, with 81 percent of the land finally platted and 4 percent of the land subject to pending preliminary plats. The City’s service plan would replace the services currently provided by Mission Township and the Sherwood Improvement District with City services.
On August 14-15, 1991, a public hearing on the proposed annexation was held before the Board. Evidence and arguments were provided by approximately 30 different witnesses. At the hearing, the substance of the City’s service plan was explained by the city attorney. The various portions of the plan were supported by testimony and explanations from the City.
The City requested not less than a week to respond in writing to the comments made by annexation opponents at the August 14 hearing. The Board decided to conclude the hearing on August 15. The City objected to not being given more time to prepare its response. The City submitted a six-page letter on the 15th responding to the previous day’s comments in opposition - to annexation.
The Board determined that the service plan submitted by the City contained the K.S.A. 12-521(a) requirements. Additionally, the Board determined that:
“Governmental services are provided in the area by Shawnee County j Mission Township and the Sherwood Improvement District. All three units of government have improvement projects to maintain the streets and storm-drain system. The area is served by on-site private sewer systems and a County sewer district. Water service for the area proposed to be annexed is provided by the City of Topeka. Nonresidents of Topeka are assessed a seventy percent (70%) surcharge on water sold to them. Law enforcement is provided by the Sheriff’s Department and fire protection is provided by Mission Township Fire Department. The City’s subdivision regulations apply to the subject area because it is located within three (3) miles of the City limits.”
The Board found in resolving the disputed anticipated costs of annexation that:
“The proposed annual cost to extend City services to the area proposed to be annexed is $980,250, based on 1990 numbers. The capital costs, annualized over twenty (20) years, would be $235,250. . . .
“The total annualized costs, including capital expenditures is $1,418,745. This figure is arrived at by adding the $203,245 the City will lose annually from not having its seventy percent (70%) surcharge for providing water to the area to the noncapital annual' costs of providing services to the area. This figure is then added to the annualized capital costs ($235,250) for a total of $1,418,745 in annual expenses. Total annual revenues received for providing these services to the subject area would be $1,324,652, a net annual cost to the City of $94,093.”
The Board concluded: “The City does not demonstrate that it will provide and maintain services to the area to be annexed at a level equal to or better than the level of services being provided before annexation.”
The Board found that property taxes within the Sherwood area would increase by approximately 30 to 35 percent. Additionally, the valuation of property in Mission Township would decrease by approximately 63 percent, and the tax impact upon the property remaining within Mission Township would be negative and substantial. The Board also determined that “[p]roperty taxes within. the City of Topeka will increase to provide services proposed in a manner which is equal to or greater than the services received by residents in the area proposed for annexation.”
The Board determined: “1. . . . that manifest injury will result to the owners of land proposed to be annexed by the City of Topeka. 2. . . . that no manifest injury will result to the City of Topeka if the petition is disapproved.” By a two to one vote the Board denied the City’s petition for annexation.
The district court concluded: “The evidence and testimony submitted to the Board provided a relevant substantial basis for the Board’s findings and conclusions. Therefore, the decision of the Board was neither arbitrary, nor capricious, and that decision is affirmed.”
The District Court’s Standard of Review
The City argues that the Board’s determination must be quasi-judicial. The 1987 amendments to K.S.A. 12-521 included the statement that “[t]he action of the board of county commissioners shall be quasi-judicial in nature.” K.S.A. 12-521(c). The City observes that prior to the 1987 amendments, we had determined that a county board was acting in both a legislative and a quasi-judicial capacity when it decided whether to grant or deny a city’s annexation petition. See City of Lenexa, 232 Kan. at 575. When a board determined the advisability of an annexation proposal, it acted in a legislative capacity. However, when it determined manifest injury, the board was exercising a quasi-judicial function. City of Lenexa, 232 Kan. at 575. For a discussion of judicial review of annexation, see Shultz, Kansas Annexation Law: The Role of Service Plans, 40 Kan. L. Rev. 207, 249 (1991).
According to the City, the two-fold nature of a board’s decision meant that district courts were to apply two different standards of review to the board’s determination. We have explained the review standards to be used by a district court when it examines a board’s annexation action:
“[T]he reviewing court is limited to considering whether, as a matter of law, (1) the board acted fraudulently, arbitrarily, or capriciously, (2) the board’s order is supported by substantial evidence, and (3) the board’s action was within the scope of its authority. [Citations omitted]. . . .
“The judicial review of the Board’s determination of the advisability of the annexation, however, is the review of the legislative function. The duty of the district court ... is limited to a determination of whether the Board has the statutory authority to enter the order which it made. [Citations omitted.]” City of Lenexa, 232 Kan. at 576.
The City argues that the legislature amended K.S.A. 12-521 in 1987 with full awareness of our holdings but did not codify our characterization of the board’s role in determining advisability of proposed annexations. The legislature directed the board to “render a judgment.” K.S.A. 12-521(d). The City insists that the legislature did not describe any part of the board’s decision as legislative in character.
The City reasons that the district court in the case at bar applied the wrong standard of review because it did not consider the Board’s action to be entirely quasi-judicial. The City declares the district court’s consideration of the impact of annexation upon Mission Township proves that the wrong standard of review was used. According to the City, a board’s finding that annexation would negatively affect areas outside the land proposed for annexation is totally irrelevant except as to how that negative impact relates to the board’s consideration of manifest injury to (1) the area proposed to be annexed and/or (2) the city.
The Board emphasizes that the district court recognized that the general purpose of Kansas annexation law was the protection of the rights of landowners against unilateral annexation. The Board asserts that the district court set out the appropriate standard of review. We agree.
The district court recited the quasi-judicial standard of City of Lenexa, 232 Kan. at 575-76. The Board did not make a separate legislative finding of advisability, distinguished from its quasi-judicial findings of manifest injury. The district court did not apply separate standards of judicial review to separate legislative and quasi-judicial determinations. The district court reviewed the decision of the Board as a quasi-judicial decision.
The City insists that the Board could only determine manifest injury to residents of the proposed annexation area and to the City. The City emphasizes a single sentence of K.S.A. 12-521 and interprets it out of context. The City’s reasoning discards the purpose of subjecting annexations to review and resolution by the board of county commissioners. The argument suggests an attempt to evade the express wording of K.S.A. 12-521.
K.S.A. 12-521(c) indicates that the board
“shall consider the impact of approving or disapproving the annexation on the entire community involved, including the city and the land proposed to be annexed, in order to insure the orderly growth and development of the community. ... In determining whether manifest injury would result from the annexation, the board’s considerations shall include, hut not he limited to, the extent to which the following criteria may affect the city, the area to be annexed, the residents of the city and the area to be annexed, other governmental units providing services to the area to be annexed, the utilities providing services to the area to be annexed, and any other public or private person, firm or corporation which may be affected thereby:
“(11) effect of the proposed annexation on the city and other adjacent areas, including, but not limited to, other cities, fire, sewer and water districts, improvement districts, townships or industrial districts.” (Emphasis added.)
The legislative intent of K.S.A. 12-521 is to allow the board to hear testimony as to the advisability of certain annexations. A determination is to be made considering the impact of the annexation on the entire community involved, including the city, in order to insure the orderly growth and development of the community. In making that determination, the board’s considerations shall include, but not be limited to, 14 designated criteria described in K.S.A. 12-521(c) and the extent that such criteria may affect certain entities. The board must make specific written findings of fact and conclusions based on a preponderance of the evidence, determining whether the annexation would cause man ifest injury to the owners of land in the area proposed to be annexed or to the city if the annexation is disapproved. Requiring the board to make the manifest injury findings does not negate the remaining requirements of the statute that the board consider the impact of the annexation on the entire community involved.
Amicus curiae League of Kansas Municipalities (League) endorses the City’s interpretation of the 1987 K.S.A. 12-521 amendments. The League asserts that it submitted Senate Bill 246 [L. 1987, ch. 66, § 5, now K.S.A. 12-521] with the intent to change the role of the board to a quasi-judicial capacity. The League suggests that legislative history supports the claim that a board now must function as a quasi-judicial body. We agree.
Amicus curiae Kansas Association of Counties (Association) argues that the 1987 amendments contained in K.S.A. 12-521 are a well thought out attempt to balance the competing political interests of cities and counties. The Association reasons that the quasi-judicial function of the board is not exclusive of the legislative function. The Association advances the observation that both the legislative function and the quasi-judicial function of the board are carried out in the hearing process. Separate meetings are not called and a declaration made that the meeting is quasi-judicial or legislative. According to the Association, good minds cannot and should not become impervious to the balance of needs of the people or the need for responsive local government.
The Association emphasizes political electoral reality, observing that courts should not substitute for county commissioners who act as elected representatives and are able to observe and hear those who testify. We agree with the Association’s observation on the limited role of the judiciary in annexation matters. The Association accents board responsibility by citing Cedar Creek Properties, Inc. v. Board of Johnson County Comm’rs, 249 Kan. 149, 158, 815 P.2d 492 (1991) (“city officials making the decision on how to zone the land do not represent the residents in outlying areas”).
The district court followed the appropriate standard of review. Granted, language from City of Lenexa referencing “legislative determination of advisability” was quoted. See 232 Kan. at 583. However, the district court then proceeded to (1) discuss the fact that manifest injury “is, and always has been, a quasi-judicial function of the board” and (2) present the definition of manifest injury in great detail. The standard of review that we have said should be used when evaluating the manifest injury determination (see City of Lenexa, 232 Kan. at 576) is explicitly set forth within the district court’s memorandum opinion wherein the district court observes:
“In this case, the City has not challenged the statutory authority of the Board to deny the advisability of the proposed annexation. There is no claim that the Board acted outside the scope of its authority, and there is no allegation of fraud. The only remaining issues subject to this judicial review are whether the Board acted arbitrarily and capriciously, and whether the Board’s denial was supported by substantial evidence.”
Thus, the legislative/advisability review, which centers on statutory authority to enter the order of annexation, was not conducted by the district court because the issue of statutory authority was not argued.
The district court identified and applied the substantial evidence definition we acknowledged in City of Lenexa, 232 Kan. at 584, by observing:
“In determining whether or not substantial evidence exists to support the findings of the Board, it is not the function of this Court to reweigh the evidence, but rather, only to look at the evidence which supports the finding and determine whether or not that evidence is substantial. Evidence which might have supported a contrary conclusion is not relevant to this determination. If there is evidence in the record which supports the Board’s findings, and if that evidence is substantial, then the decision must be affirmed.”
We do not agree with the City’s assertion that the trial court’s acceptance of the Board’s consideration of the impact of annexation upon Mission Township necessarily proves the wrong standard of review was used. The City’s interpretation is strained. An examination of K.S.A. 12-521 in its totality indicates that the legislature intended a variety of factors to be relevant to the Board’s decision. Legislative intent is to be determined from a general consideration of the entire act. Our duty, as far as practicable, is to harmonize different statutory provisions to make them sensible. Todd v. Kelly, 251 Kan. 512, 516, 837 P.2d 381 (1992).
Standard of Review — Substantial Evidence Analysis
The City contends that the district court committed a second standard of review error because it accepted evidence in support of the Board’s order denying annexation that did not meet the substantial evidence test. The City doubts that a reasonable person would accept comment from one side of a dispute when the comment was (1) not under oath, (2) not subject to cross-examination, (3) from a person with a financial interest, and (4) not subject to a meaningful rebuttal. The City complains that the district court relied on certain evidence, i.e., the self-interested statements of property owners in the Sherwood area and the residents’ alleged experts, without determining whether the evidence was substantial.
The City reasons: (1) The Planning Commission found that the proposed annexation was compatible with the relevant land use plans for the area; (2) the Board observed that the Sherwood area was highly urbanized and that urbanization would continue; and (3) the only objective substantial evidence presented to the Board supported annexation. The City states that it is not asking us to rule that all members of the public who testify at a hearing must be sworn. Rather, the City urges us to rule that the legislative designation of K.S.A. 12-521 as quasi-judicial requires the truthfulness of evidence to be tested either by being under oath or by being subjected to cross-examination or rebuttal. According to the City, only evidence that has been sworn, cross-examined, or rebutted may carry the label “substantial.” We do not agree.
The Board responds by observing: (1) The City presented a six-page rebuttal letter on August 15, which was significantly expanded upon by presentation of the city attorney, (2) none of the testimony offered on behalf of the City was sworn, and (3) all of the witnesses who appeared at the hearing were subject to cross-examination or questions from the Board during the hearing.
The fact that testimony and information were obtained by the Board through the public hearing process does not diminish the ability of the Board to rely upon that information in making its determination. If the evidence presented was relevant and of substance, and was of a type that a reasonable person would accept as being sufficient to support a conclusion, then the Board could properly act upon it. The legislature did not intend to impose formal judicial procedural requirements on annexation proceedings. We rejected a cross-examination requirement as a due process prerequisite in In re Petition of City of Overland Park for Annexation of Land, 241 Kan. 365, 371, 736 P.2d 923 (1987).
The City’s suggestion that its evidence should be entitled to greater credibility because it was not based upon self-interest is faulty. A self-interest analysis places the dependability of the City’s own evidence in question. The Board observes that the City has desired to annex the Sherwood area for years. According to the Board, the number of errors in the service plan raises questions regarding the City’s credibility..
The issue for review is whether the Board’s decision was supported in the record by substantial evidence. The fact that the persons who testify are biased does not render the testimony insubstantial. A large percentage of the testimony in any annexation proceeding is presented by people who either desire a specific outcome or are motivated by self-interest. The Board has a responsibility to assess the credibility of the witnesses and reach a judgment.
The Arbitrary and Capricious Analysis
The City contends that the Board’s action was arbitrary and capricious. The City correctly notes that under the standard of review of quasi-judicial actions, the Board’s decision must be examined to determine whether it was arbitrary or capricious. The City relies on In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 687 P.2d 603 (1984). In City of Shawnee, we reasoned that whether the Board acted arbitrarily and capriciously in denying Shawnee’s annexation petition depended entirely on whether the Board’s conclusion of manifest injury was based on substantial evidence. 236 Kan. at 21.
K.S.A. 1991 Supp. 12-521(c) mandates that the board consider, but not be limited to, 14 criteria in making the manifest injury determinations:
“In determining whether manifest injury would result from the annexation, the board’s considerations shall include, but not be limited to, the extent to which the following criteria may affect the city, the area to be annexed, the residents of the city and the area to be annexed, other governmental units providing services to the area to be annexed, the utilities providing services to the area to be annexed, and any other public or private person, firm or coiporation which may be affected thereby:
(1) Extent to which any of the area is land devoted to agricultural use;
(2) area of platted land relative to unplatted land;
(3) topography, natural boundaries, storm and sanitary sewers, drainage basins, transportation links or any other physical characteristics which may be an indication of the existence or absence of common interest of the city and the area proposed to be annexed;
(4) extent and age of residential development in the area to be annexed and adjacent land within the city’s boundaries;
(5) present population in the area to be annexed and the projected population growth during the next five years in the area proposed to be annexed;
(6) the extent of business, commercial and industrial development in the area;
(7) the present cost, methods and adequacy of governmental services and regulatory controls in the area;
(8) the proposed cost, extent and the necessity of governmental services to be provided by the city proposing annexation and the plan and schedule to extend such services;
(9) tax impact upon property in the city and the area;
(10) extent to which the residents of the area are directly or indirectly dependent upon the city for governmental services and for social, economic, employment, cultural and recreational opportunities and resources;
(11) effect of the proposed annexation on the city and other adjacent areas, including, but not limited to, other cities, fire, sewer and water districts, improvement districts, townships or industrial districts;
(12) existing petitions for incorporation of the area as a new city or for the creation of a special district;
(13) likelihood of significant growth in the area and in adjacent areas during the next five years; and
(14) effect of annexation upon the utilities providing services to the area and the ability of those utilities to provide those services shown in the detailed plan.”
The City observes that the Board found 10 of the 14 criteria supported annexation of the Sherwood area. The district court confirmed that criteria 1, 2, 3, 4, 5, 6, 10, 12, 13, and 14 all supported annexation. According to the City, criteria 1, 2, 3, 4, 10, and 13 are more important to the annexation decision than other criteria. The City does not suggest that a board is required to engage in a numerical comparison of the criteria that support annexation versus the criteria that are contrary to annexation. The City asserts that a quasi-judicial process cannot allow total dis cretion on the part of the decision maker with respect to how, or whether, one of the 14 criteria compares to another. According to the City, to permit such discretion would subvert the entire K.S.A. 12-521 process. The City submits that the overwhelming evidence supported the community of interest that exists between the Sherwood area and the City and that the annexation was appropriate “in order to insure the orderly growth and development of the community.” K.S.A. 12-521(c).
The Board emphasizes that the reviewing court should not reweigh the evidence and that evidence which might have supported a contrary conclusion is not relevant to the determination. The Board reasons that it issued a written fact-finding statement regarding each of the 14 statutory criteria even though the statute did not require that it do so. According to the Board, there is little dispute over the evidence relating to several of the criteria. However, there are disputed factual matters contained in four of the Board’s findings which weigh heavily against annexation. These findings correspond to K.S.A. 12-521(c)(7) (costs of government services), (8) (service plan), (9) (tax impact), and (11) (effect on the city, “and other adjacent areas, including, but not limited to, . . . improvement districts”). Generally, the Board argues the primary areas of disagreement relate to the cost estimates for the proposed annexation, the ability of the City to maintain services at a level equal to or better than the level of services provided prior to the annexation, and the impact of the annexation upon the Improvement District and the Township.
The Board’s analysis suggests that although the disputed matters relate to only 4 of the 14 listed criteria, it is clear that the statutory annexation scheme places significance on these 4. The Board indicates that several undisputed facts which relate to the contradicted findings justify denial of the annexation petition. For example, regarding number (7) (present cost, government services, and regulatory control), the Board notes:
“No one presented evidence or testimony that existing governmental services in the area to be annexed are inadequate. . . .
“. . . Economic growth and development of the area has already occurred without annexation. Necessary infrastructures have already been constructed. Existing zoning regulations are more appropriate for the area than would be those of the City, and the area is already subject to joint health de partment regulations, flood plain regulations, and the same Planning Commission approves area plats. In short, existing governmental services are adequate without annexation, and substantial evidence in the record clearly supports this finding.”
Regarding number (8) (proposed cost, extent and necessity of governmental services to be provided by the city and the plan), the Board declares that there is no dispute that the proposed annual cost estimate is $980,250. The Board claims that even using the City’s own evidence “there would only be approximately $182,000.00 in revenues which exceed costs. In light of an annual budget in excess of $116 million, denial of the annexation petition would not cause a material or significant loss to the City or its taxpayers.” The Board concludes that “[w]ith corrections only to the income figures, the evidence submitted on behalf of the landowners demonstrates that the City would incur a net annual cost of approximately $94,000.00 per year to annex.” The Board emphasizes that there is a significant discrepancy between the City’s present cost estimates and the estimates for the 1986 annexation plan. Furthermore, the Board argues that the City failed to prove that it has the ability to maintain police, fire, and road maintenance services at a level equal to that provided.
Concerning criterion (9) (tax impact on the City and the area to be annexed), the Board states that there is no dispute regarding the conclusion that the negative tax impact upon property owners within the Sherwood area would be significant because the evidence indicated that property taxes would increase 30 to 35 percent. Also, the valuation of property in Mission Township would decrease by approximately 67 percent. The Board concluded that the tax impact upon Mission Township would be negative and substantial. The Township’s loss would be approximately $495,000 out of a total budget of approximately $740,000.
The Board emphasizes that under criterion (11) (effect on city and adjacent areas), the evidence supported the Board’s finding that the revenue available to offset anticipated costs would not be sufficient to avoid a tax increase in the City.
The district court’s analysis paralleled the Board’s analysis. The district court carefully examined the disputed criteria and pointed out the relevant evidence in the hearing record which supported the Board’s determination. Regarding the balancing of the criteria, the district court noted:
“The statute does not require that each criteria be given equal consideration, but only that each criteria be considered, and then, considered only to the extent that the criteria may affect the various interested parties and governmental entities. Merely counting the number of criteria supporting annexation and comparing that to the number of criteria weighing against annexation, would be an inappropriate application of the statute. It would also ignore the legislative directive that the commissioners consider the impact of the annexation upon the entire community in order to ensure the orderly growth and development of the community.
“Clearly, the legislature did not intend for the Board to merely count the number of criteria weighing in favor of annexation. The statute gives the discretion to the Board to determine the extent to which the criteria may affect the interested entities. Some of those criteria have a much more significant effect than others, and it is apparent that the Board has the discretion to determine what weight is to be accorded to each.”
The district court concluded that, based upon its review of the evidence, the annexation decision was not arbitrary or capricious. We agree. K.S.A. 12-521(c) does not limit the Board’s consideration to the 14 criteria. A purely mathematical resolution to annexation based on weighing the count by adding up the 14 criteria pro and con was not intended by the legislature. The significance of individual criteria will vary when applied to different annexations.
In In re City of Shawnee, 236 Kan. 1, we reviewed the denial of an annexation petition presented by the City of Shawnee. Regarding the Board’s manifest injury determination, we observed that the evidence before the Board was sharply conflicting. Reasonable minds could differ on the question of manifest injury to the affected landowners. It is not our duty, however, to reweigh the evidence or to substitute our judgment for that of the administrative tribunal. We found the Board’s denial was supported by substantial evidence and therefore neither arbitrary nor capricious. 236 Kan. at 25.
K.S.A. 12-521(c) was amended in 1987 to require that the board’s findings and conclusions on manifest injury shall be based on a preponderance of the evidence presented to the board. Legislative imposition of the preponderance of the evidence requirement does not affect the standard of appellate review.
Manifest Injury
K.S.A. 12-521(c) requires a county board to determine whether the proposed annexation would cause manifest injury to the property owners in the area. The City reminds us that we have defined the term “manifest injury” as meaning the “imposition of material or substantial burdens upon the landowners without accompanying material or substantial compensating benefits.” City of Lenexa, 232 Kan. at 584.
The City reasons that (1) the issue of manifest injury to property owners must be placed in context, (2) the fact that property owners subjected to annexation may face increased costs or taxes is not the imposition of substantial burdens, and (3) it is only fair and reasonable that those property owners contribute towards the expense of the substantial benefits that they receive from the annexing city. The City cites City of Georgetown v. Pullen, 187 Ky. 697, 700, 220 S.W. 733 (1920) (an increase in taxes, by itself, or in comparison with the benefits that property owners would receive, did not constitute material injury). The City argues that the district court erred in holding that substantial evidence supported the Board’s conclusion that property owners would suffer manifest injury if the annexation were approved.
The trial court’s conclusion, based upon an analysis of the record, is as follows:
“In general, the Board’s determination that the annexation would cause manifest injury to the owners in the area proposed to be annexed is supported by the undisputed figures relating to increased property taxes, when considered in light of the substantial evidence that the City’s plan does not provide for extension of services at a level which is equal to or better than the level of services provided prior to annexation. This additional taxation is a material and substantial burden without accompanying material or substantial compensating benefits. Annexation would result in manifest injury to landowners in the area proposed to be annexed.”
The Board had the discretion to weigh the evidence as it saw fit. The district court correctly determined that substantial evidence supported the Board’s findings.
K.S.A. 12-521(c) also requires county boards to determine whether the denial of the petition would cause manifest injury to the city. The City, in the case at bar, expresses the view that the term “manifest injury” involves greater complexity when ap plied to a city than when the impact on property owners is at issue. We do not agree.
The City asserts the purpose of the Kansas annexation law is to provide cities with the legal authority to expand their boundaries. According to the City, if protecting property owners were the ultimate goal of the law, there would be no annexation statutes. The City argues that the term manifest injury, as it relates to a city proposing an annexation, should focus on the extent to which denial of an annexation petition would negatively affect the legitimate interests of a city and the urban community of which the annexed area is proposed to become a part. The City explains that the district court was in error when it determined “manifest injury” with regard to a city has the same meaning as “manifest injury” with regard to the property owners in the area proposed to be annexed.
The City observes that the Board’s finding that annexation would create a net dollar cost to the City was beyond the Board’s authority because the statute only permits findings regarding manifest injury if the annexation is denied. The City points out that even if denial of the City’s annexation petition would have prevented “cost” to the City, the prevention of a burden does not equal a benefit, it only maintains the status quo. The City reasons that there is no room in the present wording of the statute to allow the Board to make a finding that denial of the annexation would not cause manifest injury simply because approval would cause manifest injury.
The City then argues that “[tjhere is no statutory authority for the Board to second-guess whether a city, proposing to annex land, has properly weighed the consequences of such an annexation for its current city residents.” Consequently, the City reasons, the Board’s failure to make specific findings means the decision was contrary to the autonomy of municipalities that is guaranteed under the Kansas Constitution, art. 12, § 5.
The City states that tax inequities between City residents and Sherwood area residents will continue, absent annexation. Finally, the City takes issue with the Board’s determination that annexation would cost the City money. The City contends that the Board and the district court erroneously found that the City would have a deficit of $94,093 as a result of the annexation because the City would lose $203,245 in revenue from its sale of water to the Sherwood area. The loss of revenue would occur because the City could no longer impose its 70 percent surcharge on the sale of water to nonresidents. The district court concluded that the City would actually be benefited by denial of its annexation petition since it would not suffer a cost of approximately $94,000 in extending services to the Sherwood area. The City asserts that the Board’s logic is flawed because the water utility is a separate entity not supported by tax revenues and its revenues do not fund the City. Second, the City says that if lost water revenue could properly be considered, the lost tax support to the City’s library and Washburn University is also a factor which the Board arbitrarily did not, but should have, considered. Third, The City contends the Board’s logic is faulty because it essentially means that the City must break even on the annexation plan or else manifest injury occurs. Finally, according to the City, the Board and district court are essentially saying that the denial of the petition saved the City money which is a benefit which compensated for burdens caused by the fact that the City could not annex the Sherwood area.
The Board counters by insisting that the City raises a sophistic argument that because there is no evidence of a lack of manifest injury to the City the finding of the Board cannot be supported. According to the Board, the City’s argument fails for two reasons. First, without something of evidentiary value to suggest that the City would be manifestly injured, the Board’s conclusion that no manifest injury would result is proper. Second, the record contains substantial evidence that there would be no manifest injury to the City if annexation is denied.
In addressing this issue, the district court stated:
“The Board’s finding that no manifest injury would be caused to the City if the annexation is disapproved is supported by the substantial evidence in the record which indicates that there would be a significant annual cost of annexation in excess of the estimated annual revenue. Moreover, this finding is supported by the expert testimony of C. Bickley Foster in which he concludes, among other things, that there is no need for the city of Topeka to annex this area; that the area does not need additional services from the city of Topeka; that the area can survive without annexation; and that the County and the City would be better served in the long run by continuing the present development of the subject area.”
The testimony provided a basis for the Board’s view that the City would suffer injury. The district court evaluated the evidence and reached a similar conclusion. The City raises some important considerations regarding the need for annexation. However, these are considerations that should be evaluated by county boards and municipal governments. Appellate courts should not reweigh the evidence. The decisions of the Board and of the district court are supported by substantial evidence.
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46,
107,
65,
28,
-18,
-8,
-51,
46,
90,
-83,
-25,
-105,
24,
-21,
0,
-76,
-99,
-11,
86,
15,
124,
-61,
5,
31,
108,
-113,
-114,
-92,
-101,
79,
48,
-126,
11,
-21,
-93,
17,
116,
-61,
-10,
125,
-42,
50,
-101,
31,
-8
]
|
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