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The opinion of the court was delivered by
Six, J.:
This case is about jury instructions, evidentiary rulings, the identity of a confidential informant, and the manner in which a first-degree murder trial was conducted by the trial judge. David G. Thomas was convicted under K.S.A. 1992 Supp. 21-3401. He contends he is entitled to a new trial because the trial judge: (1) was partial and unfair; (2) did not permit him to present his defense; (3) improperly instructed the jury on first-degree murder; (4) failed to instruct on accomplice or on lesser included offenses; (5) admitted evidence of Thomas and his girlfriend threatening witnesses and of a previous conviction of Thomas’ girlfriend; and (6) did not require the State to disclose the identity of a confidential informant.
Our jurisdiction is under K.S.A. 1992 Supp. 22-3601(b)(l) (based on Thomas’ conviction of a class A felony or on his maximum sentence of life imprisonment).
We find no reversible error and affirm.
Facts
Thomas borrowed a .22 rifle from Joy and Stan. Austin in March 1991, indicating that he wanted to go hunting. The next evening, two brothers of his longtime girlfriend, Duchess Couser, were with Thomas when he drove to Wichita’s north side looking for rock cocaine.
Thomas previously had told Eddie Wynn, one of Duchess’ brothers, and others that someone “had ganked him” (sold bad cocaine or drugs). Thomas pulled into a driveway next to a recreation center and asked a man standing nearby if he had any cocaine. The man replied that he did. Thomas got out of the car, reached into the back seat, and pulled out a gun. Earl testified that Thomas aimed the gun at the man, who was standing nearby. The man started to run to the back of a building and was pursued by Thomas. Eddie heard two shots, Earl heard three. At trial, neither Eddie nor Earl were able to describe the man they had seen that evening. When Thomas returned to the car he showed Eddie some crack rocks and said, “I got this.” Earl asked Thomas if he “shot the guy.” Thomas replied, “Pussy ass nigger sold me some bad drugs.”
The trio drove to the Austins’ house, where Thomas wiped with alcohol and towel-dried the .22 rifle. Joy Austin testified Thomas said he wiped off the gun because “he didn’t want anybody to do something with it and blame him because his fingerprints were on it.” Earl testified that Thomas again, when asked about the cocaine rocks, said he got them “off the guy he shot.” The body of Veotis Richmond, who was known to sell drugs, was found the next morning. Richmond died from a single gunshot to the head. The bullet was retrieved during an autopsy. The pathologist testified that the shot had been fired from some distance. Richmond also had sustained several injuries to his face, which the pathologist speculated were caused by foot stomping. According to the pathologist, the marks and abrasions on Richmond’s neck and knees and the lacerations on his fingers could have been due either to an offensive or defensive injury. A firearms examiner testified that the bullet removed from Richmond’s head came from the gun Thomas had borrowed from the Austins. Richmond’s death was reported on the five o’clock evening news. After seeing the news report, Earl asked Thomas, “Do you know you killed him?” Earl testified that Thomas replied, “It’s just another nigger dead.”
The month after Richmond’s death, Duchess called Earl to the phone. Thomas was on the line. Earl testified that Thomas “just said, you know, ‘Why did you have to say it on me,’ you know, just he said, you know, T could have had my family come down here and just’ pow pow, you know, just like that.” Earl stated that he understood Thomas’ words to be a threat to kill him “[f]or telling on him.” During the homicide investigation, a confidential informant (Cl) spoke to Officer Terry Fettke. According to Fettke, the Cl indicated that he or she had heard two women (Tracy Jackson and Evelyn Robinson) discussing an incident where a black male, known as “Roger,” had made threatening comments about someone named Veotis who had sold Roger bad drugs. Thomas filed a motion to disclose the identity of the Cl. The motion was denied.
A Fair and Impartial Judge
According to Thomas, the trial judge “repeatedly injected himself into the trial,” and, thus, Thomas’ case was prejudiced. Specifically, Thomas complains that the trial judge discounted defense evidence, belittled defense counsel, impeached witnesses, argued with defense counsel, applied the rules of “reality of evidence,” gave speech after speech on evidentiary theories in front of the jury, curtailed and interfered with defense cross-examinations, denied the defense the right to put on evidence, and so saturated the trial with interference corrosive to Thomas’ right to fairness that the very fabric of the trial fell apart. Thomas emphasizes that he is entitled to a trial before a fair and impartial judge. He relies on State v. Hamilton, 240 Kan. 539, 731 P.2d 863 (1987), in which a conviction was reversed for judicial misconduct.
The State insists that Thomas’ contentions are based upon his slanted characterization of the trial. The State emphasizes that Thomas bears the “burden to prove error in the judge’s conduct. State v. Stoops, 4 Kan. App. 2d 130, 132, 603 P.2d 221 (1979).” We agree. According to the State, (1) appellate counsel has gone to extraordinary lengths to distort the record in an attempt to argue Thomas was denied a trial before a fair and impartial judge, (2) Thomas’ claims are simply not supported by the record, (3) the trial court made every effort to ascertain the truth of the charges against Thomas and to insure that the trial was properly conducted, and (4) the jury was specifically instructed that nothing the court did was meant to influence the verdict. •
We have examined the record of the specific incidents complained of by Thomas. The complaints are similar to those asserted by the defendants in State v. Diaz & Altemay, 232 Kan. 307, 654 P.2d 425 (1982), which involved the same trial judge. We recently reaffirmed the Diaz & Altemay approach to the issue of judicial misconduct. State v. Nguyen, 251 Kan. 69, 79-80, 833 P.2d 937 (1992).
Thomas contends the trial court spontaneously interrupted , his counsel’s cross-examination of Eddie in a manner which was implicity critical of counsel.
Example:
“Q. [Defense counsel] I’m asking you. When you testified earlier, as I understood your testimony, show me which alley — you can use this as a pointer. Show me which alley you were indicating the vehicle you were riding in went in.
“THE COURT: Are you saying he said an alley?
“Q. [Defense counsel] Or driveway. Show me where the vehicle went.”
Example:
“Q. [Defense counsel] So, to answer my question, you’re fairly certain that this is the driveway you entered into and not any of these other two driveways?
“A. Yes.
“THE COURT: For the sake of the record, in case someone ever reviews it, would you mind specifying some spot, location, direction or landmark somewhere on the diagram about which questions have been asked?
“[Defense counsel]: Yes, your Honor. Point well taken.”
Example:
“Q. [Defense counsel] How certain are you of your testimony?
“THE COURT: Counselor, at what time are you asking about right now? Leaving his house? Leaving the other person’s house? Leaving the liquor store or leaving the residence which he testified about? I just — I [sic] trying to remove ambiguities, that’s all.
“Q. [Defense counsel] Mr. Wynn, as Mr. Thomas, yourself, and Earl Couser are leaving your residence, getting ready to leave and go to the liquor store, was any mention ever made by Mr. Thomas that he was upset over being cheated on a drug transaction?”
Example:
“Q. [Defense counsel] Now, previously, you’ve testified that you rode around approximately 40 minutes after you left the liquor store; is that what you’re telling us today?
“THE COURT: Well, counselor, I’m sorry, but are you referring to some other occasion? Or are you talking about earlier this afternoon?
“[Defense counsel]: Well, actually, I’m talking about his previous testimony at preliminary hearing.
“THE COURT: Well, then you’re going to have to lay a foundation and ask it if a certain question was asked and. a certain answer was given.”
Example:
“Q. [Defense counsel] . . . Would you read aloud the lines I have marked in yellow, starting at line two and concluding with line 21?
“THE COURT: You may ask him to read it to himself, and ask him if he were asked those questions and gave those answers, but that’s the way you’ll have to proceed.
"[Defense counsel]: Okay. Thank you, Your Honor.”
Example:
“Q. [Defense counsel) Now, Mr. Wynn, having reread your preliminary hearing testimony, at preliminary hearing you testified that—
“THE COURT: No, wrong.
“Q. [Defense counsel] Mr. Wynn, having reread your preliminary hearing testimony, does that refresh your recollection as to whether or not anything in addition to a six pack of beer was purchased at the liquor store?”
Thomas complains of the trial judge’s comment at the time the gun was introduced.
Example:
“Q. [The State] Mr. Wynn, I’m showing you—
“THE COURT: Just a moment. Check that. (A sheriff’s officer examined the exhibit.)
“THE COURT: Please. I didn’t mean to order you about.
“[The State]: It’s been checked.
“THE COURT: Well, Ms. Fitch, we don’t take anybody’s word for anything, we check it every single time. We don’t point guns at people we don’t intend to shoot, ever.
“[The State]: Good point, Your Honor.
“Q. Mr. Wynn, I’m showing you what’s been marked as State’s Exhibit No. 1. Have you ever seen this before?
“[Defense counsel]: Let me object, Your Honor. This is not part of my cross examination. This exhibit was not presented during direct. If I have to limit myself to the scope of direct, I think—
‘THE COURT: Counsel, you went into great detail or some detail about the use of the gun. This is redirect on your cross.
“[Defense counsel]: Thank you, Your Honor.”
Thomas asserts that the trial judge expressed panic in front of the jury about Thomas not being present.
Example:
“[Defense counsel]: I understand, Your Honor. I wanted to clean up this from prior to lunch.
‘THE COURT: I don’t want to—
“[The State]: Your client’s not here.
‘THE COURT: We have a real time problem here now, so if you’re going to call this particular witness, please call him now.
“[Defense counsel]: Judge, do you want me to proceed?
‘THE COURT: Oh, God, where’s the defendant? We seem to have lost track of the defendant. Have you looked at those instructions, ma’am?
“[The State]: Somewhat, yes, Your Honor.
‘THE COURT: I could change the elements instruction if the lawyers want it changed, but—
(The defendant entered the courtroom.)”
Thomas complains of numerous additional instances of a similar nature. Thomas argues that the right to a fair trial is fundamental, so the usual “harmless error” standard of review does not apply. The purpose of trial is to ascertain the truth or falsehood of the charges against Thomas. It is a part of the duty of the trial judge to see that the full truth is developed by the evidence. Diaz & Altemay, 232 Kan. at 313. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding the alleged misconduct. The conduct complained of must be examined and a determination made as to whether it was prejudicial to substantial rights. Where a construction can properly and reasonably be given a remark which will render it unobjectionable, the remark will not be regarded as prejudicial. Diaz & Altemay, 232 Kan. at 313.
Thomas has failed to show that the trial court’s conduct constituted prejudicial error.
The Right to Present a Defense
Thomas relies on Chambers v. Mississippi, 410 U.S. 284, 303, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973), which held Chambers was denied a fair trial by evidentiary rulings which disallowed testimony that a third party had confessed. Thomas applies the Chambers criteria to the facts in the case at bar, i.e., the trial court’s failure to admit Officer Fettke’s testimony for the truth of the matter regarding the CL Thomas concludes that the Chambers factors were met; consequently, Thomas should have been allowed to present statements made by a man named “Roger” that a different person committed the crime. Chambers identified four factors which provided “persuasive assurances of trustworthiness,” so as to require admission. First, each of the declarant’s confessions was made spontaneously to a close acquaintance soon after the murder took place. Second, each confession was corroborated by some other evidence. Third, each confession was clearly self-incriminating and against the declarant’s interest. Finally, the declarant was available for cross-examination if any question arose concerning the truthfulness of his out-of-court statements. Chambers, 410 U.S. at 300-01.
Thomas explains that in State v. Jackson, 244 Kan. 621, 772 P.2d 747 (1989), we indicated that a trial court should allow defense counsel to show that another party committed an offense in the situation where there is a declaration against interest on the part of the involved third party. The State counters by discussing the relevant testimony at the pretrial hearing in the case at bar. According to the State, Tracy Jackson testified that she was with Roger on March 26, and she never told anyone she took Roger to 9th Street (the area where the murder occurred) the day of the crime. She did, however, take him to 9th Street the previous day, but Roger did not threaten to kill Richmond. Furthermore, Evelyn Robinson testified that on March 26 she was not present when Roger was allegedly dropped off at 9th Street and she did not hear him make any threats against Richmond. The State highlights the fact that at trial, neither side called Tracy, Evelyn, or Roger as witnesses even though Tracy and Evelyn were present at trial and Roger was available in the Sedgwick County jail. The State explains that although the trial court would not admit the evidence to prove the truth of the matter asserted, the court did allow Fettke to testify regarding the fact that the statement was made by the CL
The State asserts that Thomas’ application of Chambers to the case at bar is flawed for a variety of reasons. First, there is no positive evidence that Roger made the statements. Furthermore, unlike the confessions at issue in Chambers, the statements attributed to Roger did not possess the “considerable assurance of their reliability” that impressed the Chambers court. 410 U.S. at 300. The State argues that the statement attributed to Roger did not constitute a confession to the crime Thomas was charged with. (If the CI was believed, Roger at most told the two women that he was going to “get” someone.) Second, there was no corroborative evidence that Roger murdered Richmond. There was no evidence that Roger was in possession of a rifle, let alone the rifle used to kill Richmond. Furthermore, if Thomas seeks to prove the murder was committed by someone who had a fight with Richmond, there is no evidence that Roger and Richmond were in a fight. Testimony that Roger was present in the area the day before the murder, contrary to Thomas’ assertion, provides no corroboration for the statements he allegedly made to the two women. Third, Roger’s statement that he was going to get someone was not “unquestionably” against his interest as was the third-party confession in Chambers. Finally, unlike Chambers, Thomas did not produce Roger at trial. In addition, he did not call either of the two women.
Thomas’ reliance on Chambers does not persuade us to conclude that the trial court erred in refusing to admit Fettke’s testimony for the truth of the matter asserted. The facts in Thomas do not meet the Chambers criteria.
Thomas argues in the alternative that Roger’s statements to the CI should have been admitted based upon the hearsay exception, K.S.A. 1992 Supp. 60-460(j), declarations against interest. The standard of review on exclusion under 60-460 is abuse of judicial discretion. State v. Quick, 226 Kan. 308, 317, 597 P.2d 1108 (1979). K.S.A. 1992 Supp. 60-460(j), like Chambers, rests on the assumption that hearsay statements which rise to a level of reliability and trustworthiness may properly be admitted. The facts in the case at bar do not demonstrate such reliability.
Thomas, in framing his “right to present a defense” claim, asserts that he has been denied his right to due process, to a fair trial, and to compulsory process. Thomas does not present an independent analysis for these four claims. The due process and fair trial arguments are aspects of the right to present a defense. Thomas is correct when he advances the premise that he has a right to present a defense. See State v. Irons, 250 Kan. 302, 309, 827 P.2d 722 (1992). However, this right is subject to statutory rules and case law interpretation of rules of evidence and procedure. For example, as the State points out, we have repeatedly held that a trial court can exclude, as irrelevant, circumstantial evidence that someone other than the defendant committed the crime in situations where the State’s case is built on direct evidence. Jackson, 244 Kan. at 625. In the case at bar, the State’s case was based on direct evidence.
Thomas also asserts that the trial court erred in refusing to admit Eva McDonald’s testimony. However, Thomas does not indicate what her testimony would have been. The State informs us that Eva would have testified that Richmond was acting overbearing and combative prior to his death. We find no error in the exclusion of Eva’s testimony.
The trial court did not err in limiting Officer Fettke’s testimony.
Jury Instructions — First-Degree Murder
The trial court instructed the jury on first-degree murder as follows:
“Defendant is charged with the crime of Murder in the First Degree. Defendant pleads not guilty. To establish this charge each of the following claims must be proved. Defendant killed a human being, Veotis E. Richmond, in Sedgwick County, Kansas, between March 26 to March 27, 1991:
A. Committed in the perpetration of or attempt to perpetrate a felony, or
B. Committed:
1. maliciously,
2. willfully,
3. deliberately, and
4. with premeditation.
Felony Murder Rule: If the death of a human ensues in the perpetration or attempt to perpetrate a felony dangerous to human life, then Murder in the First Degree is committed even though the death of a human being is not intended.
“Aggravated Robbery and Robbery, and attempt to commit same, are felonies dangerous to human life.”
Thomas objected to this instruction as being confusing and not in conformity with the Pattern Instructions for Kansas (PIK). Thomas’ counsel stated that the felony-murder instruction should not be included with the premeditated murder instruction.
Thomas observes that the instruction did not specify the felony that the jury needed to determine had been committed in order to satisfy the felony-murder elements. Thomas’ counsel made a general objection to the trial court’s failure to follow PIK. However, he did not assert that the failure to specify the felony was error. Thomas declares that “[t]o one unschooled in the law, the killing itself could be considered a felony.” Thomas emphasizes that PIK requires the relevant element to be instructed on as follows: “2. That such killing was done while (in the commission of) (attempting to commit) [the felony is to be specified here], a felony.” PIK Crim. 2d 56.02 (1992 Supp.). The trial court defined aggravated robbery, robbery, and attempt.
“ ‘Aggravated Robbery’ is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.
“ ‘Robbery’ is the taking of property from the person or presence of another by threat of bodily harm to that person or another person or by force.
“An ‘attempt’ is any overt act toward the perpetration of a crime done by a person who intends to commit such crijne but fails in the perpetration thereof or is prevented or intercepted in executing such crime.
“It shall not be a defense to a charge of attempt that the circumstances under which the act was performed or the means employed or the act itself were such that the commission of the crime was not possible.”
According to Thomas, these instructions failed to limit the jury to a consideration of specific felonies. Thomas also alleges that the last paragraph of the instruction was confusing and unnecessary.
Thomas argues that the most significant flaw in the murder instruction was the failure to include all of the essential elements of the offenses of robbery and aggravated robbery. The instructions for robbery and aggravated robbery omitted the element of intent. Thomas reasons that in State v. Clingerman, 213 Kan. 525, 516 P.2d 1022 (1973), we granted a new trial based upon the failure of the trial court to include one of the necessary elements of robbery in its elements instruction on felonious in tent. Thomas states that his counsel objected to the elements instruction and that he “need not show that the error was clear, only that it existed.” However, Thomas does not provide a citation to the record. We find no specific objection to the robbery and aggravated robbery instructions.
Thomas contends that in a felony-murder case: (1) Where there can be a reasonable doubt as to what underlying felony a defendant might be guilty of, a trial court must instruct on each of those felonies; (2) where certain of those felonies are not inherently dangerous, the jury must be so informed; and (3) the jury must be informed that it cannot convict on felony murder if it finds that the underlying felony was not inherently dangerous.
Thomas indicates that he was not separately charged with aggravated robbery and robbery and that there was no direct evidence of exactly what happened. Thomas advances a hypothetical scenario in support of his claim that the evidence could have easily justified an instruction on possession of cocaine or on theft as a lesser crime of robbery. Thomas concludes that just as there was evidence to support the instruction upon aggravated robbery and robbery as inherently dangerous underlying felonies, there was arguably evidence to support the instruction upon the not inherently dangerous felonies of possession of cocaine and theft. According to Thomas, it was clear error to select only the inherently dangerous felonies for inclusion as underlying felonies.
TÍie State responds by explaining that it is well established that “instructions are to be considered together and read as a whole, without isolating any one instruction. [Citation omitted.] If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.” State v. Morris, 244 Kan. 22, 23, 765 P.2d 1120 (1988).
According to the State, sections A and B of the instruction on first-degree murder were patterned after K.S.A. 1990 Supp. 21-3401(a) and (b). The State also believes that when all of the instructions are read together it is clear that robbery, aggravated robbery, or the attempt to commit those crimes were the pertinent felonies. The State next insists that the last paragraph following the attempt instruction properly mirrors the law in K.S.A. 1992 Supp. 21-3301(b) and, therefore, should not serve as a basis for setting the conviction aside.
The State explains that the proper standard of review on the omission of the element of intent is stated in State v. Redford, 242 Kan. 658, Syl. ¶ 4, 750 P.2d 1013 (1988): “When a trial court errs in omitting from its instruction an element of the crime charged, the omission is reversible error if the appellate court is firmly convinced there is a real possibility the jury would have returned a different verdict had the error not be made.”
The State addresses Thomas’ theft and possession of cocaine claims by contending that there was evidence produced at trial about what happened. Thomas told Eddie he shot the victim in the legs, the victim fell to the ground, and Thomas took the cocaine from him. The only contradictory evidence was that the victim was shot in the head, not the legs. The State asserts that there was no evidence that the taking of cocaine was anything but intentional. We agree. Thomas’ argument does not provide a basis for setting aside his conviction.
The standard of review applied to jury instruction error requires an objection before the jury retires, stating distinctly the matter objected to and the grounds for the objection, unless the instruction or the failure to give the instruction is clearly erroneous. K.S.A. 22-3414(3). State v. Crabtree, 248 Kan. 33, 39, 805 P.2d 1 (1991).
Thomas asserted specific errors when he objected to the first-degree murder instruction. However, he failed to object to the lack of the intent element. A general objection to the failure to use PIK should not mean that counsel also objected to the failure to specify the underlying felony. We apply the clear error standard of Crabtree to Thomas’ argument concerning the absence of the intent element. Counsel should have specified this alleged error. Otherwise, trial counsel would be able to generally object to the failure to use a PIK instruction and new arguments advancing specific objections arising from an analysis of PIK notes and comments could be used by appellate counsel for the first time on appeal.
With respect to the failure to include the intent element in the aggravated robbery and robbery instructions, State v. Lucas, 221 Kan. 88, 557 P.2d 1296 (1976), controls the case at bar. In Lucas, clear proof of intent was established by defendant’s use of a deadly weapon. Intent was never made an issue in Lucas. Lucas failed to lodge an objection to the instructions given. We held it was not reversible error to fail to instruct on intent. 221 Kan. at 90-91. We observed in Lucas that it would be better practice to include the element of intent as suggested in PIK Crim. 2d 56.30, 56.31 (1975 Supp.). 221 Kan. at 91. Thomas, like Lucas, used a deadly weapon. Thomas failed to specifically object to the absence of the intent element in the instruction. Jury instructions are to be considered together and read as a whole without isolating any one instruction. Crabtree, 248 Kan. at 39. The trial court did give an instruction on the State’s burden to prove the required criminal intent.
We analyzed a jury instruction challenge in State v. Morris, 244 Kan. at 23, and reasoned that if the instructions properly and fairly state the law as applied to the facts in the case and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be, in some small way, erroneous. We have previously addressed the merits of using PIK instructions. State v. Macomber, 244 Kan. 396, Syl. ¶ 5, 769 P.2d 621 (1989). In Macomber, we concluded that the failure to give the PIK instruction did not prejudice the defendant’s substantial rights. 244 Kan. at 406. Combining the premeditated murder and felony-murder instructions in the case at bar did not prejudice Thomas’ substantial rights. The felonies of robbery, aggravated robbery, and attempt of same were the focus of the total set of jury instructions. The evidence did not support the hypothetical facts regarding the possession of cocaine and theft advanced by Thomas’ appellate counsel.
We find no prejudical error in the instructions on premeditated murder and felony murder.
Lesser Included Offenses
Thomas objected to the trial court’s failure to give second-degree murder and voluntary manslaughter instructions. According to Thomas, the evidence indicated that the firing of the rifle could have resulted from anger arising from a fight with Richmond.
The State contends Thomas was either guilty of first-degree murder or he was not guilty. We agree. His defense at trial was that someone else committed the crime. Lesser included offense instructions are not required in felony-murder cases unless the evidence of the underlying felony is weak or inconclusive. State v. Bailey, 247 Kan. 330, 338-39, 799 P.2d 977 (1990), cert. denied 114 L. Ed. 2d 108 (1991). We recently discussed the rules regarding lesser included instructions in State v. Deavers, 252 Kan. 149, 843 P.2d 695 (1992), a premeditated murder case. Instructions on lesser included offenses must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. An instruction on a lesser included offense is not required, however, if the evidence at trial excludes a theory of guilt on the lesser offense.
In the case at bar, the evidence indicated that Richmond’s murder was committed in the course of an aggravated robbery. Therefore, under the Bailey and Deavers analyses, lesser included offense instructions were not required.
The evidence does not support Thomas’ theories regarding second-degree murder and voluntary manslaughter. In Deavers, we noted that “[s]talking someone, firing a shot, pausing, and shooting again is evidence of premeditation.” 252 Kan. at 153. A similar scenario, in the case at bar, was described by both Eddie and Earl. Thomas went to the north side in Wichita with the intent to locate Richmond. He borrowed a rifle, got out of the car with the rifle, and shot Richmond. The facts support a finding of premeditation.
An Accomplice Instruction
Thomas asserts that an accomplice instruction is proper in all circumstances where an accomplice testifies, citing State v. Anthony, 242 Kan. 493, 501, 749 P.2d 37 (1988). Thomas argues that the testimony of Eddie and Earl is suspect because both men went with Thomas to Wichita’s north side. Thomas believes that both men “could be deemed aiders and abettors” because there “was some evidence that Earl and Eddie were enlisted with knowledge that their mission was to seek out the seller of bad drugs.”
The State reminds us that Thomas did not request an instruction on accomplice testimony. The standard of review is limited to determining whether the failure to give the instruction was clearly erroneous. K.S.A. 60-251(b). The evidence suggested the trip to the north side was either unexpected or a detour taken because Thomas had been sold bad drugs. Thomas is not entitled to an accomplice instruction. See State v. Young, 14 Kan. App. 2d 21, 37, 784 P.2d 366, rev. denied 245 Kan. 788 (1989). Thomas has not demonstrated clear error. He was not prejudiced by the trial court’s failure to give an accomplice instruction.
Evidence of Threats and of A Previous Conviction For Aggravated Intimidation of A Witness
Thomas insists that the admission of testimony regarding threats that he had allegedly made against Eddie if Eddie testified was prejudicial error. The threat testimony was objected to at trial on the grounds of relevance. Thomas also asserts that the State should not have been allowed to introduce Duchess Couser’s previous conviction for aggravated intimidation of witnesses. Thomas believes that evidence of Duchess’ alleged threats to witnesses regarding his case, including threats allegedly made in chambers, was improperly admitted.
The State claims the evidence was relevant. Relevant evidence is statutorily defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). Relevancy is more a matter of logic than law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence. State v. Faulkner, 220 Kan. 153, Syl. ¶ 6, 551 P.2d 1247 (1976). The State identifies the rule that the admission of evidence rests within the sound discretion of the trial court, subject to exclusionary rules. State v. Carmichael, 240 Kan. 149, 157, 727 P.2d 918 (1986). In State v. Wilson, 108 Kan. 433, 435, 195 Pac. 618 (1921), we reasoned that “attempts by the accused to conceal or destroy evidence, or to fabricate or procure false evidence, are incriminating circumstances that may be presented to the jury.” See State v. Williams, 196 Kan. 628, 633, 413 P.2d 1006 (1966). The evidence of Thomas’ threat to Eddie was properly admitted.
The State concludes that, based on Thomas’ own threats and on his long-term relationship with and control over Duchess, there was a connection between Thomas and threats made by Duchess. Consequently, the State claims that discretion was not abused in admitting evidence of Duchess’ threats. Furthermore, the State contends that when Duchess denied making any such threats, her conviction for aggravated intimidation of a witness was properly admitted to rebut her denials. The State reasons, however, that if error occurred in the admission of either Duchess’ threats or her conviction, it was harmless. We agree.
The erroneous admission of evidence in a criminal trial does not require a reversal of conviction in every case, but only where it is of such a nature as to affect the outcome of the trial and deny substantial justice. State v. Walker, 239 Kan. 635, 644, 722 P.2d 556 (1986). We need not decide whether admission of the questioned testimony was error because Thomas has not shown that the admission might have affected the outcome of the trial and denied substantial justice. See Walker, 239 Kan. at 644.
The Identity of A Confidential Informant
Our standard of review on the trial court’s failure to disclose the identity of a confidential informant is abuse of discretion. State v. Pink, 236 Kan. 715, Syl. ¶ 2, 696 P.2d 358 (1985).
Thomas insists that the Cl had material, exculpatory information for the defense. Thomas believes that the refusal to disclose the Cl’s identity denied him due process and the right to access exculpatory evidence. Thomas explains that the informer’s privilege is codified at K.S.A. 60-436. He emphasizes that the identity of an informant should be revealed if the disclosure is essential to assure a fair determination of the issues. Thomas asserts that the denial of fundamental fairness and due process is “glaring” because the trial court did not allow him to bring the Cl into the courtroom to testify about his conversations with Officer Fettke for the purpose of proving the truth of the matter asserted.
The “mere tipster” is an informant whose information precipitates an investigation. In contrast to the tipster, the informant who actually engages in or observes the criminal activity of the defendant is in a position to provide independent evidence rel evant to the defense of the case. State v. Washington, 244 Kan. 652, 658, 772 P.2d 768 (1989).
The State contends that the Cl was a tipster; consequently, disclosure was not essential to assure a fair trial. According to the State, the Cl had no direct knowledge of the events forming the basis of the criminal charges against Thomas.
A Cl who is a mere tipster and whose information precipitates an investigation is generally not subject to identity disclosure. Washington, 244 Kan. at 657. We must determine “[wjhether the informant could provide information essential to a fair trial by providing information relevant and helpiul to the defense.” 244 Kan. at 657.
The trial court heard testimony from Officer Fettke and knew exactly what information the Cl had provided the police. The informant was not a participant in or an observer of Thomas’ criminal activity. The Cl had information that two other people had taken a third party to the area where Richmond was murdered on the date of the crime but at some unknown time. The individual allegedly made some threatening type remarks about a drug dealer. The Cl was not a party to this occurrence. The whereabouts of the principal players in this scenario, two women and allegedly Roger, were known to Thomas. The two women denied any such occurrence. The State is correct. The Cl in the case at bar lacks direct knowledge regarding the events in question and is a mere tipster.
Speculation and suspicion regarding what an informant might possibly testify to is not sufficient to require disclosure. State v. Pink, 236 Kan. at 722. Thomas has not met his burden to prove the identity of the Cl is relevant and material. The trial court did not abuse its discretion. The facts and circumstances were carefully considered at two pretrial hearings on the motion to reveal the identity of the Cl.
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Waddell Warren, from his convictions for aiding and abetting aggravated robbery, aiding and abetting aggravated battery, and conspiracy to commit robbery. Warren also appeals his sentence.
On March 7, 1991, between 3:00 and 3:30 p.m., 87-year-old Pauline Willhardt was walking home in Leavenworth. Donna Tanksley, who was accompanied by Suzy Majors, forcibly took Mrs. Willhardt’s purse, knocking the elderly woman to the ground. Mrs. Willhardt spent almost three months in the hospital recovering from a dislocated shoulder, a broken kneecap, broken teeth, and facial abrasions. Mrs. Willhardt suffered permanent injury. Since the incident, she must use a cane to assist her in walking.
Witnesses saw the two young women take Mrs. Willhardt’s purse and run from the scene. Shortly thereafter, one of the witnesses saw the two women in a car being driven by the defendant. Another witness testified that he saw the two women get into the car driven by the defendant and that they ran straight for the car as if Warren was waiting for them.
Tanksley and Majors were arrested the day of the crime and voluntarily gave a statement to the police. Tanksley pled guilty to aggravated robbery, aggravated battery, and conspiracy to commit robbery. Majors pled guilty to aiding and abetting robbery, aiding and abetting aggravated battery, and conspiracy to commit robbery.
Tanksley and Majors testified for the State at the defendant’s trial. Both testified to the following: Prior to the robbery, Tanksley, Majors, and Warren had been smoking crack cocaine. The defendant said that if they wanted to do more crack, they needed money. He suggested that the two women rob someone or snatch a purse and that he would provide the transportation for getting away. Warren took them initially to a mall and then dropped them off downtown. After robbing Mrs. Willhardt, Tanksley and Majors ran until they found Warren in his car. The two women entered the car, and Warren drove off. Majors also stated that with the money found in the purse, they bought more crack and smoked it. The three were arrested later that day.
Tanksley and Majors testified that William Larry “Kenyata” Bradley, a friend of Warren’s, had been with the three prior to the crime and that Bradley heard the others discuss the plan but did not participate in the crime. Bradley testified for the defense that he had been with the defendant from approximately 8 a.m. until approximately 3 p.m. on the day of the crime and that Tanksley and Majors had not been with them during that period of time. Although Warren did not testify at trial, his version of the story was that the two women had walked up to his car. and requested a ride and that he had no knowledge of or involvement in the robbery.
A jury convicted Warren of aiding and abetting aggravated robbery, aiding and abetting aggravated battery, and conspiracy to commit robbery. Pursuant to the Habitual Criminal Act, Warren was sentenced to a controlling term of 45 years to life.
The defendant timely appeals his conviction and his sentence.
I. Lesser Included Offense
On appeal, Warren contends the trial court erred in not instructing the jury on aiding and abetting robbery as a lesser included offense of aiding and abetting aggravated robbery. Technically, the jury was instructed on aggravated robbery and separately on aiding and abetting. The jury instructions reflected the following statutory language.
“Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 21-3427. “Robbery is the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.” K.S.A. 21-3426. Aiding and abetting is defined, in part, as follows:
“(1) A person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime.
“(2) A person liable under section (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing or attempting to commit the crime intended.” K.S.A. 1991 Supp. 21-3205.
Warren argues that the evidence supported an instruction on robbery because there was no evidence he intended for the two women to arm themselves or to inflict bodily harm. Although acknowledging that Majors testified he suggested the two women rob someone or snatch a purse, Warren emphasizes that both women’s testimony focused on his suggestion of snatching a purse. He also points out that neither woman had a prior conviction and that there was no evidence the women had a propensity for violence. Additionally, based upon Majors’ testimony, the defendant stresses he proposed that the women go into a mall for the purpose of snatching a purse and he dropped them off at a mall for that purpose. Warren implies that the two women’s actions surpassed his intent when they left the mall and found a victim outdoors. He suggests that the reason for choosing a mall in which to snatch a purse was because a mall is a likely location for shoppers to leave a purse unattended temporarily. Why a mall was chosen is not discussed in the record. The record, however, contains evidence that after failing at the mall, the defendant took the two women from the mall to downtown Leavenworth, where the robbery occurred.
The defendant then directs the court’s attention to subsection (2) of the aiding and abetting statute, which upholds a finding of liability for any crime committed in pursuance of the intended crime if the crime committed was a reasonably foreseeable consequence. Warren contends that the foreseeability of the crime committed is a question of fact for the jury to decide. In support of this contention, he cites State v. Davis, 4 Kan. App. 2d 210, 213, 604 P.2d 68 (1979), in which the Court of Appeals stated:
“A review of the facts in each case is necessary to determine whether violence is reasonably foreseeable as a probable consequence of committing the crime intended. State v. Edwards, 209 Kan. 681, 686, 498 P.2d 48 (1972). Defendant has a heavy burden, for the necessary intent and foreseeability may be inferred from circumstantial evidence [citation omitted] and is a fact question for jury determination. State v. Edwards, 209 Kan. at 686.”
Warren fails to take into account that the Davis court added: “If a crime is inherently dangerous to human life, it would be foreseeable that an aggravated felony might occur.” 4 Kan. App. 2d at 215. See also State v. Chism, 243 Kan. 484, 490, 759 P.2d 105 (1988) (in the context of felony murder, foreseeability established as a matter of law if the underlying felony is inherently dangerous to human life). Robbery is a crime inherently dangerous to human life. State v. Giddings, 226 Kan. 110, 595 P.2d 1115 (1979). Therefore, it was foreseeable that an aggravated robbery might occur.
State v. Johnson & Underwood, 230 Kan. 309, 634 P.2d 1095 (1981), is also instructive. Johnson was convicted of aggravated robbery. On appeal, he argued that the trial court committed reversible error because it refused to instruct on robbery. .This court rejected that argument, stating:
“In the present case the evidence is uncontroverted: the robbery was accomplished with a gun. Moreover, pursuant to K.S.A. 21-3205, the aiding and abetting statute, it is not necessary for both defendants to possess a gun to justify both being convicted of aggravated robbery. Proper instructions on aggravated robbery and aiding and abetting were given. Defendants were guilty of aggravated robbery or nothing.” 230 Kan. at 311.
See State v. Sutherland, 248 Kan. 96, 101-03, 804 P.2d 970 (1991); State v. Mitchell, 234 Kan. 185, 189-90, 672 P.2d 1 (1983).
Here, it is uncontroverted that bodily harm was inflicted upon the victim. Proper instructions on aggravated robbery and aiding and abetting were given. With regard to the aggravated robbery charge, Warren was guilty of aggravated robbery or he was guilty of nothing. Under these facts, failure to instruct the jury on robbery was not error.
II. Voluntary Intoxication
“Voluntary intoxication is not a defense to a general 'intent crime, although it may be used to demonstrate an inability to form a particular state of mind necessary for a specific intent crime. [Citation omitted.]” State v. McDaniel & Owens, 228 Kan. 172, 177, 612 P.2d 1231 (1980). See K.S.A. 21-3208(2). Aiding and abetting as well as conspiracy to commit a robbery, two crimes with which the defendant was charged, are specific intent crimes. See State v. Sterling, 235 Kan. 526, 529, 680 P.2d 301 (1984); State v. Campbell, 217 Kan. 756, 770-71, 539 P.2d 329, cert. denied 423 U.S. 1017 (1975).
Warren argues that the trial court erred in failing to instruct the jury on the affirmative defense of voluntary intoxication because both the State and defense presented evidence of his use of drugs and/or alcohol on the date the crimes were committed. The defendant, however, did not request or object to the lack of such an instruction.
The evidence did not warrant instructing the jury on voluntary intoxication. Here, as in State v. Falke, 237 Kan. 668, 703 P.2d 1362 (1985), the evidence showed Warren indulged in intoxicating drugs and beverages. The Falke court held that such evidence “failed to show a level of intoxication such that [the defendants] were utterly devoid of consciousness or awareness’ of what they were doing. [Citation omitted.]” 237 Kan. at 683. The “evidence indicated that the defendants’ ‘intoxication’ did not affect their abilities to reason, to plan, to recall, or to exercise their motor skills.” 237 Kan. at 684. See State v. Davis, 2 Kan. App. 2d 698, 701-02, 587 P.2d 3 (1978), rev. denied 225 Kan. 846 (1979). The evidence did not show that Warren could not recall what occurred on the day the crimes were committed. There was no evidence he lost his ability to reason, to plan, to recall, or to exercise his motor skills.
The trial court did not clearly err in failing to instruct the jury on the affirmative defense of voluntary intoxication.
III. Crime Necessarily Proved
Warren argues that his conviction for aiding and abetting aggravated battery is multiplicitous with his conviction for aiding and abetting aggravated robbery. The defendant relies upon two Court of Appeals’ cases in which the terms “multiplicity” and “lesser included offense” appear to be used interchangeably. Although these cases frame the issue as multiplicity, the test for lesser included offenses is applied. Despite Warren’s reliance upon these cases, he specifies he “is not contending that the aggravated battery charge against him was a lesser included offense of the aggravated robbery charge.” Because this area of the law is often confusing, both in case law and to practitioners, it may be helpful to review general principles of both multiplicity and lesser included offenses.
In State v. Garnes, 229 Kan. 368, 373, 624 P.2d 448 (1981), this court set forth the general principles for determining if charges are multiplicitous:
“(1) A single offense may not be divided into separate parts; generally, a single wrongful act may not furnish the basis for more than one criminal prosecution.
(2) If each offense charged requires proof of a fact not required in proving the other, the offenses do not merge.
(3) Where offenses are committed separately and severally, at different times and at different places, they cannot be said to arise out of a single wrongful act.”
In State v. Woods, 250 Kan. 109, 119-20, 825 P.2d 514 (1992), cert. denied October 5, 1992, we recapitulated:
“ ‘Multiplicity exists when the State uses “a single wrongful act as the basis for multiple charges.” [Citation omitted.] Charges are not multiplicitous if each charge requires proof of a fact not required in proving the other. [Citation omitted.] . . . Offenses are also not multiplicitous when they occur at different times and different places, because they cannot then be said to arise out of a single wrongful act.’ State v. Howard, 243 Kan. 699, 703, 763 P.2d 607 (1988). . . .
“Multiplicity in the crimes charged exists if the crimes charged are based on ‘a series of violent acts occurring] simultaneously.’ State v. Cathey, 241 Kan. 715, 720, 741 P.2d 738 (1987); see State v. Smith, 245 Kan. 381, 392, 781 P.2d 666 (1989). This court has found offenses multiplicitous if the ‘defendant’s conduct constituted a single continuous transaction’ or ‘one continuing unbroken act of force.’ State v. Bishop, 240 Kan. 647, 653-54, 732 P.2d 765 (1987).
“Multiplicity does not exist if an act of violence is intermittent or separate and wholly unrelated to the other acts of violence. State v. Bourne, 233 Kan. 166, 168, 660 P.2d 565 (1983). If there is a “break in the action’ or if ‘offenses occurred at separate times and in separate places,’ the charges are not multiplicitous. Bishop, 240 Kan. at 653-54; see State v. James, 216 Kan. 235, 531 P.2d 70 (1975).”
Included offenses are codified at K.S.A. 21-3107, which provides, in part:
“(1) When the same conduct of a defendant may establish the commission of more than one crime under the laws of this state, the defendant may be prosecuted for each of such crimes. Each of such crimes may be alleged as a separate count in a single complaint, information or indictment.
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
(a) A lesser degree of the same crime;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved.”
In State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988), this court discussed at some length the two-prong test to determine if a crime is an included crime under section (2)(d):
“The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. This approach is ordinarily fairly straightforward, and requires a jury instruction on a particular lesser offense whenever all of its statutory elements will automatically be proved if the State establishes the elements of the crime as charged. For example, where the crime charged is aggravated burglary, the crime of burglary is clearly a lesser included offense, because every one of the statutory elements of burglary must of necessity be proved in establishing the elements of aggravated burglary.
“The result of the first step of the analysis, however, is not necessarily conclusive. Even if the statutory elements of the lesser offense are not all included in the statutory elements of the crime charged, a particular crime may nevertheless meet the statutory definition in 2I-3107(2)(d) of an included crime under the second step of the analysis. This approach requires the trial court to carefully examine the allegations of the indictment, complaint, or information as well as the evidence which must be adduced at trial. If the factual allegations in the charging document allege a lesser crime which does not meet the statutory elements test and the evidence which must be adduced at trial for the purpose of proving the crime, as charged would also necessarily prove the lesser crime, the latter is an ‘included crime’ under the definition in 21-3107(2)(d).”
In State v. Gibson, 246 Kan. 298, 300, 787 P.2d 1176 (1990), this court cautioned against confusing
“what the State may have actually proved in its evidence . . . with what the State was required to prove to establish the crime charged. The mere fact that the evidence adduced in proving the crime charged may also prove some other crime does not make the other crime a lesser included offense under K.S.A. 21-3107(2)(d).”
The Judicial Council commented that the main objective of this statute was “the formulation of limitations upon unfair multiplicity of convictions or prosecutions.” Judicial Council Comment, 1968, to K.S.A. 21-3107. There is no doubt the concept of multiplicity and included offenses are related. Case law does not explain clearly the relationship between the two concepts and increasingly is blurring any distinction. A sampling of this case law is outlined below.
In State v. Mason, 250 Kan. 393, 827 P.2d 748 (1992), the defendant raised a multiplicity argument, cited K.S.A. 21-3107(2), and cited three cases applying that statute. The State relied upon K.S.A. 21-3107(1). This court discussed the two-prong Fike test, including more recent applications of it, and then held: “Multiplicity does not depend on whether the facts proved at trial are actually used to support the convictions of both offenses; rather, multiplicity turns on whether the necessary elements of proof of the one crime are included in the other.” 250 Kan. 393, Syl. ¶ 3. It was concluded that the charges were not multiplicitous under K.S.A. 21-3107(2).
In State v. Edwards, 250 Kan. 320, Syl. ¶ 4, 826 P.2d 1355 (1992), this court held:
“K.S.A. 21-3107(1) formulates the limitations upon unfair multiplicity of convictions and prosecutions. The concern with multiplicity is that it creates the potential for multiple punishments for the same offense, which is prohibited by the double jeopardy clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Bill of Rights.”
See State v. Frazier, 12 Kan. App. 2d 164, 167, 736 P.2d 956 (1987) (K.S.A. 21-3107[1] governs multiplicitous issues arising out of the same conduct).
In State v. Smith, 245 Kan. 381, 781 P.2d 666 (1989), this court referred to K.S.A. 21-3107(2)(d) in discussing the multiplicity argument. The court then cited the principles set forth in State v. Garnes, 229 Kan. 368, and applied them. See State v. Cathey, 241 Kan. 715, 718-19, 741 P.2d 738 (1987).
In State v. Freeman, 236 Kan. 274, 281-82, 689 P.2d 885 (1984), this court stated:
“K.S.A. 1983 Supp. 21-3107 provides statutory authority where criminal conduct of a defendant, although consisting of a single transaction, may result in a multiple violation of the criminal code, for which the defendant may be severally prosecuted. [Citation omitted.] The prosecution may not split a single offense into separate parts where there is a single wrongful act which does not furnish the basis for more than one criminal prosecution. The test concerning whether a single transaction may constitute two separate and distinct offenses is whether the same evidence is required to sustain each charge. If not, the fact that both charges relate to and grow out of the same transaction does not create,.a single offense where two distinct offenses are defined by statute. [Citation omitted.] The same test is used in determining whether offenses charged in a complaint or information constitute lesser included offenses and are multiplicitous under 21-3107 . . . .”
Warren claims his convictions for aiding and abetting aggravated battery and aiding and abetting aggravated robbery are multiplicitous because both charges relied upon the same application of force and resulting injuries to the victim. The defendant requests that this court reexamine its holding in State v. Higgins, 243 Kan. 48, 55-56, 755 P.2d 12 (1988), in light of two recent Court of Appeals’ cases, State v. Hill, 16 Kan. App. 2d 432, 825 P.2d 1141 (1991), and State v. Perry, 16 Kan. App. 2d 150, 823 P.2d 804 (1991).
In Higgins, the defendant argued (1) that his conviction for aggravated battery and aggravated robbery was multiplicitous because the State relied upon the same act of force to prove both offenses and (2) that K.S.A. 1987 Supp. 21-3107(2)(d) precluded his conviction for both offenses because “by proving aggravated robbery, the State necessarily proved aggravated battery.” 243 Kan. at 55. This court rejected the multiplicity argument, reasoning:
“Neither crime is necessarily proved,if the other crime is proved, since each crime contains unique elements not contained within the other crime. Aggravated battery requires the presence of an intent to injure the victim and requires the infliction of great bodily harm upon the victim. Aggravated robbery does not, requiring only the infliction of bodily harm. On the other hand, aggravated robbery requires the taking of property from another. Aggravated battery, of course, does not. The fact that the one application of force supplies the element of bodily harm for both offenses does not prevent the prosecution for both offenses. State v. Chears, 231 Kan. 161, 643 P.2d 154 (1982).” 243 Kan. at 55.
The Higgins court also rejected the defendant’s “lesser included offense” argument, stating: “In the present case, aggravated battery was not alleged nor was proof thereof required to establish aggravated robbery. It was a ‘factually related offense’ and therefore not within the preclusion of K.S.A. 1987 Supp. 21-3107(2)(d).” 243 Kan. at 56.
In State v. Hill, 16 Kan. App. 2d 432, however, the Court of Appeals accepted the defendant’s argument that, under the facts of the case, battery was a lesser included offense of aggravated robbery, pursuant to the second prong of the Fike test. In reaching that conclusion, the court reviewed the following case law:
“The Kansas Supreme Court has held that battery and aggravated battery are not lesser included offenses of the crimes of robbery or aggravated robbery. State v. Warwick, 232 Kan. 232, 654 P.2d 403 (1982). In arriving at this decision, the Supreme Court only compared the statutory elements of the crimes. It reasoned:
‘[U]nder the statutes neither robbery nor aggravated robbery require bodily contact or the actual application of force to the person of another as a necessary element for the commission of those crimes. The State may prove the crime of robbery or aggravated robbery without proving that the robber actually touched or applied force to the person of his victim. Thus, the crimes of battery and aggravated battery are not lesser included offenses of the crimes of robbery or aggravated robbery and, therefore, it is not necessary for a trial court to instruct on those crimes as lesser included offenses.’ 232 Kan. at 235-36.
“Five years after Warwick, the Kansas Supreme Court stated that the test for determining whether a crime was a lesser included offense under K.S.A. 21-3107(2)(d) is not limited to comparison of statutory elements. State v. Adams, 242 Kan. 20, 22, 744 P.2d 833 (1987). Instead, the court issued the following two-prong test:
‘First, the statutes defining the lesser offense and the greater offense must be compared to determine if all the elements of the former are included in the latter. Second, if that comparison fails to disclose an “identity of elements,” then the court must examine the complaint/information to determine if the elements of the lesser offense are alleged, and if proof thereof is required to establish the greater offense. If it is, then it is a lesser included offense within the meaning of subparagraph (2)(d).’ 242 Kan. at 23-24.
“Under the first prong of this test, battery is not a lesser included offense of aggravated robbery for the reason stated in State v. Warwick. Aggravated robbery can be committed by not actually touching the victim, if it is accomplished by threat of force and use of a dangerous weapon.
“However, Hill argues that he was entitled to the instruction under the second prong of Adams [the Fike test].” 16 Kan. App. 2d at 434-35.
In State v. Perry, 16 Kan. App. 2d at 151-53, the defendant argued that the charges of delivery of a forged instrument and theft by deception were multiplicitous. The State argued there was no multiplicity because the two charges required proof of different elements. The Court of Appeals held that the charges were multiplicitous under the second prong of the Fike test: “[A] review of the charging instrument and evidence at trial shows the State necessarily proved delivery of a forged check when proving theft by deception.” 16 Kan. App. 2d at 155.
Returning to the case at hand, Warren’s multiplicity argument first will be analyzed under the second prong of the Fike test.
With regard to aggravated robbery, the complaint charged that the defendant “unlawfully, feloniously, willfully and intentionally aided and abetted another in the taking of property from the person of Pauline Willhardt, by force or threat of bodily harm to the person of Pauline Willhardt, and . . . inflicted bodily harm.” With regard to aggravated battery, the complaint charged that the defendant “unlawfully, feloniously, willfully and intentionally aided and abetted another who touched or applied force, and with the intent to injure the person of Pauline Willhardt, and where great bodily harm was inflicted.” At trial, the evidence showed that the taking was by force and not by threat of bodily harm. Mrs. Willhardt testified that she was walking down the street and the next thing she knew she was lying on the sidewalk. She never observed her attackers. They approached from the rear, grabbed her purse, and knocked her to the ground all in one motion. The evidence also showed Mrs. Willhardt suffered great bodily harm. With regard to aggravated robbery, the jury instruction limited the taking to “by force.”
After examining the allegations contained in the complaint and the evidence adduced at trial, it is clear that the necessary elements of proof for aggravated robbery also established the necessary elements of proof for aggravated battery. See State v. Mason, 250 Kan. 393, Syl. ¶ 3.
We are convinced that under the second prong of the Fike test, aggravated battery can be a lesser included offense of aggravated robbery.
Next, the traditional multiplicity test, as set forth in State v. Garnes, 229 Kan. 368, 624 P.2d 448 (1981), will be applied to the facts at hand. There is no dispute that a single wrongful act provided the basis for both charges. Generally, such an act may not be used for multiple charges. The charges stemming from a single act, however, may not be multiplicitous if the charges require proof of a fact not required in proving the other.
The Games court explained proof of a fact not required in proving the other as follows:
“The essence of aggravated robbery is to deprive a person of property, an element not found in homicide. Though a homicide is committed in the course of an aggravated robbery, the offenses do not merge. State v. Rueckert, 221 Kan. 727, 733, 561 P.2d 850 (1977). Similarly, federal bank robbery does not merge with State charges of aggravated robbery (of an individual), aggravated kidnapping, and kidnapping. See State v. Smith & Miller, 224 Kan. 662, 669-70, 585 P.2d 1006 (1978), modified on rehearing, 225 Kan. 199, 588 P.2d 593, cert. denied 441 U.S. 964 (1979).” 229 Kan. at 373.
State v. Rueckert, 221 Kan. 727, 561 P.2d 850 (1977), and the statement quoted above provide no guidance on the instant facts. The statement was made in the context of the merger doctrine and the felony-murder rule. The Rueckert court stated:
“The proper test for determining whether an underlying felony merges into a homicide is whether all the elements of the felony are present in the homicide and whether the felony is a lesser included offense of the homicide. If this is not true then the felony must be a separate and distinct offense and the doctrine of merger does not apply. While the force used to commit the robbery is an integral part of the aggravated robbery, it is not the entire body of that offense. The essence of the aggravated robbery is to deprive a person of property, which is not an element of homicide. The aggravated robbery and the homicide do not merge.” 221 Kan. at 733.
In State v. Smith & Miller, 224 Kan. 662, 669, 585 P.2d 1006 (1978), modified 225 Kan. 199, 588 P.2d 953, cert. denied 441 U.S. 964 (1979), the above quote was stated in the context of a double jeopardy issue. The defendants argued “they should not be tried for both state and federal charges arising from the same acts of violence.” 224 Kan. at 669. This court responded:
“It is well settled that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which is not required by the other. [Citations omitted.]
“Applying this test to the facts at hand, we must find that the elements of proof necessary for both convictions are different. The federal charge of bank robbery requires proof that the bank in question has some federal connection, i.e., it was insured by the Federal Deposit Insurance Corporation; whereas, the state charges of aggravated robbery, aggravated kidnapping, and kidnapping require elements of proof having nothing to do with the federal crime of bank robbery. It must also be noted that the acts giving rise to the state charges were different from those triggering the federal indictment. The act of robbing the Fourth National Bank was not the same act as the aggravated robbery of Linder. Both acts took place at different times, although they were done in the course of the bank robbery.” 224 Kan. at 669-70.
This case also can be distinguished from the instant case in that Smith ir Miller involved a comparison of state and federal charges. Additionally, the Smith l? Miller court explicitly noted that different acts occurring at different times gave rise to the state and federal charges.
If the charges in this case are not multiplicitous because one charge involves proof of a fact not required in proving the other, then it leads to the conclusion that only crimes involving identical elements can be multiplicitous. This cannot be the case because this court has found crimes involving different elements multiplicitous. See, e.g., State v. Smith, 245 Kan. 381, 392, 781 P.2d 666 (1989) (aggravated battery and attempted first-degree murder multiplicitous); State v. Cathey, 241 Kan. 715, 719-20, 741 P.2d 738 (1987) (same); Garnes, 229 Kan. at 373-74 (same). Why were these convictions not multiplicitous? Crimes involving different elements, if taken literally, necessarily will require proof of a fact not required in proving the other.
We are satisfied, and so hold, that aggravated robbery and aggravated battery are multiplicitous if, as in the case here, the same act of violence provided the basis for each conviction. The defendant’s conviction for aiding and abetting aggravated battery is reversed and the sentence therefor vacated.
IV. Sentence
Warren claims the trial court abused its discretion in sentencing him to a controlling term of 45 years to life. He claims the sentence is excessive in light of the facts of this case and his background.
‘‘A sentence imposed by a trial court will not be disturbed on the ground it is excessive, provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression, or corrupt motive. [Citation omitted.]” State v. Ji, 251 Kan. 3, 40-41, 832 P.2d 1176 (1992).
Warren’s sentence is within the limits prescribed by law. His sentence for aiding and abetting aggravated robbery is the controlling sentence because it is the longest of the sentences and because the sentences for the other convictions run concurrently to the aggravated robbery sentence. An individual convicted of a class B felony, such as aggravated robbery, may be sentenced to a minimum term of 5 to 15 years and a maximum term of 20 years to life. K.S.A. 21-3427; K.S.A. 21-4501(b). Warren was sentenced to a minimum term of 15 years. The State offered evidence of Warren’s three prior robbery convictions. He was paroled shortly before committing this crime. Because of these prior convictions and pursuant to the Habitual Criminal Act, the defendant’s minimum sentence was tripled. See K.S.A. 1991 Supp. 21-4504(b). Thus, Warren’s controlling sentence became 45 years to life.
Warren does not allege partiality, prejudice, oppression, or corrupt motive — he only alleges abuse of discretion. “The test of the trial court’s abuse of discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision.” Taylor v. State, 251 Kan. 272, Syl. ¶ 3, 834 P.2d 1325 (1992).
The trial court stated that Warren’s sentence was based upon the defendant’s “prior record and the nature of this offense, as well as the other information contained in the presentence report.” The PSI report indicated “Warren tested positive for use of marijuana and cocaine” on the day the crimes for which he was convicted were committed. The defendant acknowledged using marijuana and consuming beer, wine, and other liquor; however, he denied having a drug problem. Warren was on parole and probation for prior convictions when he committed the instant offenses.
Warren’s abuse of discretion arguments fall into two categories: those directed at the setting of his 15-year minimum sentence pursuant to K.S.A. 21-4601 and K.S.A. 21-4606 and at the enhancement of his minimum sentence pursuant to K.S.A. 1991 Supp. 21-4504(b), part of the Habitual Criminal Act.
The defendant argues that the trial court failed to consider the sentencing policy set forth in K.S.A. 21-4601 and K.S.A. 21-4606 in that the trial court failed to consider his needs, i.e., obtaining treatment for his drug problem. In addition to the defendant’s needs, the trial court also must consider public safety and the seriousness of the defendant’s crime. Furthermore, Warren denied having a drug problem.
Warren contends the seriousness of the crime committed, concern for public safety, and his prior record do not warrant the “prolonged warehousing” to which he has been sentenced and ignore the potential for rehabilitation. With regard to the seriousness of the crime committed, he suggests that because aggravated robbery requires the victim to suffer bodily harm, the trial court abused its discretion in imposing the maximum sentence. The defendant emphasizes that the victim in this case was “not the victim of a protracted and savage beating”; rather, she was “simply pushed and knocked to the ground.” K.S.A. 21-4606(2)(b) requires the sentencing judge to consider “[t]he exteiit of the harm caused by the defendant’s criminal conduct.” Here, Mrs. Willhardt suffered extensive and permanent injuries.
Warren also alleges the trial court failed to consider that there were “substantial grounds tending to excuse or justify” his conduct, even if the grounds failed to establish a defense. K.S.A. 21-4606(2)(e). Warren’s substantial grounds are that because of his consumption of alcoholic beverages and usage of illegal substances, he may not have been able to comprehend the nature and consequence of his conduct.
Warren acknowledges his prior record is an appropriate factor to consider in sentencing him. He argues, however, that there is no justification for considering his prior record twice: first, in setting his minimum term of 15 years and second, in tripling his sentence pursuant to the Habitual Criminal Act. The defendant claims his “prior record is simply not sufficiently egregious to merit a 45 year minimum term.”
Warren cites no authority for this argument. Moreover, his argument is contrary to the express language of the enhancement statute. K.S.A. 1991 Supp. 21-4504(b) provides in part:
“If a defendant is convicted of a felony . . . having been convicted at least twice before for any such felony offenses . . . , the trial judge shall sentence the defendant as follows, upon motion of the prosecuting attorney:
(1) The court shall fix a minimum sentence of not less than the greatest nor more than three times the greatest minimum sentence authorized . . . for the crime for which the defendant is convicted.”
If a trial court cannot consider a defendant’s prior record in establishing the minimum sentence and in enhancing the sentence, then a sentence could never be enhanced. Additionally, the Habitual Criminal Act does not require a trial court to consider the egregiousness of the defendant’s prior record.
Warren’s arguments are not persuasive. Although the sentence is severe, the trial court did not abuse its discretion in sentencing the defendant to the greatest possible minimum sentence allowed by law.
The defendant’s conviction for aiding and abetting aggravated battery is reversed, and the trial court is instructed to vacate his sentence for that offense. Because that sentence runs concurrently to his primary term, it is not necessary to resentence the defendant. The remaining convictions and sentences are affirmed. | [
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The opinion of the court was delivered by
Six, J.:
The events behind the charges in this case occurred in the Hutchinson Correctional Facility. A correctional officer was struck on the head by an ash can. We consider two issues: The refusal of the trial court to declare a mistrial after the State cross-examined the defendant about a prior conviction and the meaning of “disfigurement” in K.S.A. 21-3414(b).
Arthur Chandler, an inmate at the Hutchinson facility, was convicted by a jury of one count of aggravated battery against a law enforcement officer. (K.S.A. 21-3415). Our jurisdiction is under K.S.A. 1992 Supp. 22-3601(b)(l) (defendant received a maximum sentence of life imprisonment).
We find no prejudicial error and affirm.
Facts
Sergeant Gary D. Hook was working at the Hutchinson Correctional Facility. Hook was in the dining room where Chandler was seated. Chandler, who had been recently released from segregation, asked another inmate to bring him soap and tobacco to use until Chandler was allowed to purchase the items at the inmate store. A disagreement arose out of the request which ultimately involved Chandler, Hook, other inmates, and other officers. Two of the other officers warned Chandler that they would have to “write him up” for dealing and trading. Chandler replied: “I don’t care, about the write up. The point is that [Hook] needs to be talked to for what his actions are down here in the chow hall. He had no right putting his hands on [another inmate] over this bar of soap.” Chandler was told to return to his cell house. The officers testified that Chandler was visibly angry and upset when he spoke with them about the incident. It is unclear what actually happened next. Chandler testified that, after leaving the officers, he spoke with another inmate about getting him some soap. Chandler stated that just after he received the soap, two officers rushed him and took him downstairs. He saw Hook standing by the office. Chandler was handcuffed and taken to segregation.
Hook testified that when he was moving up the steps towards the C-2 cell house he observed four or five inmates at the top of the stairs by the officers’ station. Hook instructed them to head to their cells. According to Hook, he took approximately two more steps when “everything went black and [he] felt like [he] was falling.” Hook explained: “I felt like I was in an earthquake. My knees buckled and I couldn’t see anything. Everything was black.” Hook did not know what had happened. He “blacked out” and was unable to see, but could still hear, for a few moments. When his sight returned he saw a red ash can laying on the steps near him. Hook grabbed the can and went to the top of the stairs to check on the safety of his second officer. He used his radio to call for assistance. Hook could feel a gash on the top of his head. He could not see out of his glasses because they were covered with blood. He was scared. Back-up officers arrived. Hook told them to get Chandler out of the cell house. Hook had not seen Chandler throw the can, but he believed Chandler was involved based on the earlier incidents in the dining room.
Hook was eventually taken to the Hutchinson Hospital. Three days later, his face became swollen. His eyes swelled shut. The swelling lasted for a couple of days. The cut healed and left an indented scar on the top of Hook’s head. He has problems with numbness in the left side of his face. He has lost some neck mobility. Hook returned to work approximately a week after his injury.
The charges against Chandler were filed under three alternate aggravated battery theories: K.S.A. 21-3414(a) (infliction of great bodily harm), K.S.A. 21-3414(b) (disfigurement or dismemberment to or of an individual’s person) and K.S.A. 21-3414(c) (battery with a deadly weapon or in a manner where great bodily harm, disfigurement, dismemberment, or death can be inflicted). Chandler was found guilty under Count II (disfigurement or dismemberment). The jury returned a not guilty verdict on the alternate theories.
At trial, photographs of Hook as he appeared on the day of the injury were shown to the jury. The State produced two eyewitnesses to the crime who were inmates in the C-2 cell house. Inmates also testified on behalf of Chandler.
The physician who treated Hook in the hospital emergency room testified concerning the extent of Hook’s injuries. He indicated that the cut was about two and one-half inches long, penetrating three-quarters of an inch deep through the top three layers of skin and the layer of muscles of the neck and scalp. The wound required nine stitches. The physician stated that, due to the inherent risks associated with head injuries, the blow to Hook’s head could have resulted in his death. The dent in Hook’s head, according to the physician, is the result of the tissue being crushed and blood vessels being destroyed. He testified that the damaged area will never return to its former state because dead tissue in the scalp is reabsorbed by the body, leaving an indentation.
During Chandler’s cross-examination, the prosecutor asked the following question: “One of the things that you’re in prison for is a theft conviction, isn’t it?” Defense counsel objected immediately. The jury was dismissed from the courtroom and defense counsel moved for a mistrial. The trial court ruled that Chandler had not placed his character at issue and that it was erroneous for the prosecutor to question him regarding his prior conviction. The trial court then recessed to take the mistrial motion under advisement. The trial judge ruled that the prosecutor’s error was not sufficiently prejudicial to justify a mistrial. The trial judge stated that “the Court feels that it can be handled by instructing the jury very strongly to totally disregard that and not use it against the defendant in any way.” Such an instruction was given.
The Mistrial Issue
The declaration of a mistrial is a matter entrusted to the trial court’s discretion. Our standard of review is abuse of discretion. State v. Mayberry, 248 Kan. 369, Syl. ¶ 8, 807 P.2d 86 (1991). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. Discretion is abused only when no reasonable person would take the view adopted by the trial court. In re J.W.S., 250 Kan. 65, 72, 825 P.2d 125 (1992).
Chandler asserts that he decided to testify and forgo his constitutional privilege to refuse to take the stand in an effort to offset prejudice the jury may have held against him because the incident occurred in a prison. He observes that none of the correctional officers who testified had witnessed, the incident. Chandler emphasizes that attempts to match his fingerprints to the prints on the ash can failed. Consequently, he believes that his entire case rested upon his credibility measured against two State eyewitnesses who were inmates convicted of crimes involving dishonesty. Chandler reasons that he had the protection-of K.S.A. 60-421 to guarantee that he be allowed to testify without having his history of past misconduct paraded before the jury. See State v. Bowers, 218 Kan. 736, 738, 545 P.2d 303 (1976).
Chandler contends that the prior conviction question was asked in such a way as to inform the jury that he was in prison on more than one charge. He argues that the question clearly conveyed forbidden prejudicial information to the jury and a cautionary instruction could not erase that prejudice.
The State argues that Chandler put his character at issue. Consequently, the State was attempting to admit Chandler’s prior conviction of theft (involving truth and veracity) pursuant to K.S.A. 60-421 and K.S.A. 60-447(b)(ii).
Additionally, the State asserts that Chandler’s objection was sustained and that the trial court instructed the jury to disregard the question. Consequently, the State concludes that there was no reversible error.
We agree with the trial court. Chandler did not place his character in issue. The question is whether the trial court abused its discretion in refusing to grant the mistrial based on the State’s improper inquiry of Chandler. We have adopted the general rule that an admonition to the jury normally cures the prejudice from an improper admission of evidence. State v. McGhee, 226 Kan. 698, 702, 602 P.2d 1339 (1979). The judge’s power to declare a mistrial is to be used with great caution, under proper circumstances, to insure that all parties receive a fair trial. When an event of prejudicial misconduct, the damaging effect of which cannot be removed by admonition and instruction, is presented to the jury, the trial judge should declare a mistrial. State v. Lewis, 238 Kan. 94, 97, 708 P.2d 196 (1985). We do not find such prejudicial misconduct present in the case at bar.
As we have often said, an accused is entitled to a fair trial, not a perfect one. State v. Murdock, 236 Kan. 146, 154, 689 P.2d 814 (1984). Under the facts of this case, we find no abuse of discretion in not granting a mistrial.
Disfigurement — Aggravated Battery
Chandler argues that the jury found him guilty under the combined elements of the substantive statute prohibiting aggravated battery against a law enforcement officer (K.S.A. 21-3415) and the statute defining aggravated battery (K.S.A. 21-3414). “Aggravated battery is the unlawful touching or application of force to the person of another with intent to injure that person or another and which . . . (b) Causes any disfigurement or dismemberment to or of his person,” “[cjommitted against a uniformed or properly identified state, county or city law enforcement officer while such officer is engaged in the performance of his duty.” (Emphasis added.) K.S.A. 21-3414(b) and K.S.A. 21-3415.
Chandler contends that the evidence presented at trial fell short of proving that the injury caused disfigurement. The resolution of this first impression issue rests on the meaning of “disfigurement.” Was Hook disfigured under K.S.A. 21-3414(b)? Chandler reasons that Hook’s thick hair covers the injury; consequently, there is no disfigurement.
The standard of review when the sufficiency of the evidence is challenged is whether after a review of all the evidence, viewed in the light most favorable to the prosecution, we are convinced that a rational factfinder could have found Chandler guilty beyond a reasonable doubt. State v. Evans, 251 Kan. 132, Syl. ¶ 1, 834 P.2d 335 (1992). Chandler emphasizes that no testimony was offered that even hints at any alteration of Officer Hook’s physical appearance. According to Chandler, the scar is not visible through Hook’s thick head of hair but can be located only by touch.
Chandler notes that we have interpreted disfigurement in the civil context. Beal v. El Dorado Refining Co., 132 Kan. 666, 296 Pac. 723 (1931) (approval of workers compensation distinct and separate from ordinary compensation based upon “disfigurement”). The injured worker in Beal suffered severe bums on his scalp, face, and ears when a pipe filled with hot crude oil burst. The disfigurement was noticeable on casual observation. Hair would not grow on the burned scalp. We did not consider the nature and scope of the term disfigurement in Beal. See also Smith v. Marshall, 225 Kan. 70, 587 P.2d 320 (1978) (an innocuous discoloration V~U inches long and 1h inch wide on the shin was not “permanent disfigurement” within the meaning of the Kansas Automobile Injury Reparations [no fault] Act).
K.S.A. 21-3414(b) imposes a measure for determining whether an attack on another is done in such a harmful manner that greater punishment is justified. K.S.A. 21-3414(b) disfigurement is different in concept than the disfigurement required in Marshall to justify standing to remove a claim for monetary damages from the application of the no fault insurance act.
The rationale in Marshall was grounded in the maxim noscitur a sociis (it is known from its associates). The term “permanent disfigurement” was determined to have the same general qualities as its fellow terms. The fellow terms in the no fault act included other injuries of substance. The “disfigurement” in Marshall also must be of substance. Skin discoloration was not of substance and, consequently, not “permanent disfigurement” as contem plated in the no fault act. 225 Kan. at 76. The rationale of Marshall is not appropriate for persuasive application in the case at bar.
Chandler invites our attention to Scott v. State, 61 Md. App. 599, 487 A.2d 1204 (1985). Scott considered whether the loss of a 5-year-old girl’s virginity constituted disfigurement. The loss of virginity was not outwardly visible and did not constitute disfigurement. According to the Maryland Court of Appeals, a disfigurement must consist of an “externally visible blemish or scar that impairs one’s appearance.” 61 Md. App. at 608.
Chandler also relies on Allison v. State, 157 Ind. App. 277, 299 N.E.2d 618 (1973) (“disfigurement” is not a technical word and should be considered in its ordinary sense, quoting Rapp v. Kennedy, 101 Ill. App. 2d 82, 242 N.E.2d 11 [1968], which describes “disfigurement” as that “ ‘which impairs or injures the beauty, symmetry or appearance of a person or thing’ ”). 157 Ind. App. at 281. We observe that Allison further quoted Rapp’s definition of “disfigurement” as “ ‘that which renders unsightly, misshapen or imperfect or deforms in some manner.’ ” 157 Ind. App. at 281. Hook’s injuries appear to satisfy the Allison definition.
Chandler references Perkins v. United States, 446 A.2d 19, 26 (D.C. 1982) (the crime of malicious disfigurement required that as a result of a permanent injury, a person must be appreciably less attractive or that a part of the body must be to some appreciable degree less useful); United States v. Cook, 462 F.2d 301, 304 (D.C. Cir. 1972) (“to disfigure is ‘to make less complete, perfect, or beautiful in appearance or character,’ and disfigurement, in law as in common acceptation, may well be something less than total and irreversible deterioration of a bodily organ”).
The State accents the fact that the jury was instructed on both aggravated battery against a law enforcement officer and the lesser included offense of battery against a law enforcement officer. The State comments that the jury found Chandler guilty of aggravated battery of a law enforcement officer by disfigurement. Furthermore, the State contends that the credibility of witnesses, the weight to be given the evidence, and the reasonable inferences to be drawn from the evidence are the exclusive province of the jury, not the appellate courts. State v. Gibson, 246 Kan. 298, 303, 787 P.2d 1176 (1990).
The treating physician testified that Officer Hook’s injury consisted of far more than bruising. The tissue that was in Hook’s scalp died after he was hit and was naturally reabsorbed into the body, leaving an indentation.
The evidence in the case at bar was sufficient for the jury to find disfigurement. Hook’s head became imperfect or deformed as a result of the injuries he sustained. Hook was the victim of a damaging action and, at the time of the attack, was rendered partly or wholly defenseless.
The case digests provide a legion of “disfigurement” definitions. See 12A Words & Phrases, Disfigurement p. 408. Would we be considering this issue if Hook were either bald or fancied a “boot camp” hair style? We think not. Chandler’s thick hair camouflage argument is not persuasive.
In State v. Goodwin, 208 Mont. 522, 679 P.2d 231 (1984), the court considered whether a child rape victim had suffered serious bodily injury for purposes of the aggravated kidnapping statute. The definition of serious bodily injury in the Montana code included an injury which created “serious permanent disfigurement.” The court considered whether the victim had been disfigured by the rape and observed:
“The term ‘disfigurement’ connotes, among other things, deformity, defacement, marring and/or damage to one’s attractiveness. The doctors testified that the victim would bear a permanent scar in the vaginal and perineal areas and that after the injury a portion of the victim’s hymen was missing. It is beyond dispute that the victim has been left with a serious permanent disfigurement within the commonly accepted meaning of that word. Serious permanent disfigurement is an additional basis for a finding of serious bodily injury.” 208 Mont, at 529.
We consider the injury to Hook, though currently covered by his hair, a disfigurement under the common understanding of the term.
Hook was disfigured immediately following the incident before he received stitches and during the time his head was swollen.
We believe that “disfigurement” under K.S.A. 21-3414(b) has no single technical meaning or single definition. When an injury has been established, whether it is a disfigurement under K.S.A. 21-3414(b) is a fact question to be determined by the trier of fact. Disfigurement should be considered in the ordinary sense. The evidence, in the case at bar, amply supported the jury’s conclusion.
Affirmed. | [
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|
The opinion of the court was delivered by:
Holmes, C.J.:
The State appeals in four consolidated criminal cases which involve the same issues of law based upon similar factual situations. We affirm in all four cases.
All four defendants were charged with the unlawful sale of controlled substances. Defendant Teresa Rowe was charged with two counts of the sale of cocaine to Steven Boyce, a paid con fidential informant, in violation of K.S.A. 1991 Supp. 65-4127a. Defendant Bart Manues was charged with one count of the sale of marijuana to Steven Boyce, in violation of K.S.A. 1991 Supp. 65-4127b. Defendants Byron Lloyd Martin and Oliver Wendell Martin were each charged with two counts of the sale of marijuana to Steven Boyce in violation of K.S.A. 1991 Supp. 65-4127b. All four cases involve the admissibility in evidence of statements and reports made by Boyce to police officers and recordings of alleged conversations between Boyce and the defendants.
In State v. Rowe and State v. Manues, the State of Kansas appeals from orders of the trial court dismissing the complaints. At the preliminary hearings in the two cases, the State sought to introduce hearsay evidence consisting of recordings, statements, and reports of Steven Boyce, a deceased informant. The defendants objected to the admission of the evidence on the grounds that it was excludable as hearsay and violative of the defendants’ constitutional right to confront their accusers. The district court ruled the evidence inadmissible and then dismissed the cases for lack of evidence.
In State v. Byron Lloyd Martin and State v. Oliver Wendell Martin, which were consolidated in district court, the State of Kansas brings an interlocutory appeal from the district court’s order sustaining defendants’ motion in limine to exclude similar hearsay evidence.
Steven Boyce, who had prior felony convictions for crimes involving dishonesty, was solicited by Crawford County law enforcement officials to cooperate in drug investigations and make “controlled buys” of illegal substances. Initially, the consideration Boyce received for his cooperation was an early release from a one-year sentence he was serving in Crawford County and payment of $1,500 per month for working with Crawford County authorities. Eventually, Boyce was put in contact with Labette County law enforcement officials and allegedly made several controlled buys from persons in that county, including the defendants in these four consolidated cases. In Labette County, he was to be paid $50 for each successful buy.
All of the alleged buys by Boyce employed similar operations. Although the factual details vary somewhat in each case, the variances are not materially different and the procedure was gen erally similar. Boyce would contact his law enforcement supervisor and inform the officer that Boyce thought he could buy illegal drugs from an individual. Boyce wbuld then surreptitiously meet with police officers and make arrangements to proceed with a contemplated buy. Thereafter, a “body wire” would be placed on Boyce to transmit and record his conversations, and he then would go to the targeted person’s residence, enter, and allegedly attempt to purchase illicit drugs with money previously furnished to him by police officers. Police officers would monitor the alleged drug transactions from several blocks away by means of electronic transmissions from the body wire. After an alleged transaction was completed, Boyce would leave the residence and subsequently meet with the officers, prepare a written report, deliver the report to his law enforcement supervisor, and receive a $50 payment. Boyce was required to submit a report before receiving the $50 and was not paid if the operation did not result in an alleged buy. Boyce was found dead at the bottom of a Crawford County, Kansas, strip pit prior to the preliminary hearings in any of these consolidated cases. He allegedly was killed during another drug transaction which had no connection with the present cases.
The trial courts in all four cases ruled the proffered evidence regarding Boyce’s conversations and reports inadmissible as violative of the Sixth Amendment Confrontation Clause and as hearsay.
The State timely appeals the trial courts’ orders. The appeals were transferred to the Supreme Court pursuant to K.S.A. 20-3018 and K.S.A. 22-3602(b)(l) and consolidated for purposes of oral argument and decision.
As the record does not disclose any substantial material differences in the controlling facts or the legal issues raised on appeal, we will refer to all defendants collectively as the defendants unless noted otherwise in the opinion.
The evidence which the State desired to present included the taped recordings or transcripts of the recordings of the alleged buys, the reports prepared by Boyce following each buy and delivered to the police, and conversations between Boyce and police officers. The trial judges found all of the proffered evidence to be inadmissible hearsay and that admission of the evidence would also violate the defendants’ Sixth Amendment right to confront the witnesses against them.
The State contends that Boyce’s statements to the officers, the tape recordings, and Boyce’s reports are not hearsay because they were not offered to prove the truth of the matter asserted. The State also argues that even if the evidence is hearsay, it is nevertheless admissible as an exception to the hearsay rule. The admission of hearsay evidence is controlled by K.S.A. 1991 Supp. 60-460, which provides in pertinent part:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made (1) while the declarant was perceiving the event or condition which the statement narrates, describes or explains, (2) while the declarant was under the stress of a nervous excitement caused by such perception or (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant’s recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.”
The State argues that the statements Boyce made to the officers and the subsequent reports filed by Boyce are offered only to explain the preparation and steps involved in the State’s investigátion of the defendants and are not being offered to identify the defendants or establish their guilt. The State relies upon U. S. v. Freeman, 816 F.2d 558 (10th Cir. 1987), where the court held that out-of-court statements are not hearsay when offered for the limited purpose of explaining why a government investigation was undertaken, and why the government took the preparation and steps it did in preparing for an arrest.
However, the record in the instant case reveals that the State was not simply offering this evidence to explain the steps involved in the investigation. Boyce’s written and oral statements to the police officers were the only evidence the State had identifying the defendants, and linking them to the alleged drug sales. None of the recordings from the body wire attached to Boyce identified any of the defendants or contained any information that an illegal drug buy was taking place. In excluding the evidence, the trial court in State v. Manues relied upon State v. White, 234 Kan. 340, 673 P.2d 1106 (1983).
In White, this court stated:
“This court has held that statements of dispatchers or informants, offered only to explain the course of action of an investigating officer, are admissible. See State v. Laubach, 220 Kan. 679, 683, 556 P.2d 405 (1976), and cases cited therein. However, the substance of a communication by an informant to a police officer is inadmissible hearsay when it tends to identify the accused and establish his guilt. State v. Thompson, 221 Kan. 176, 179, 558 P.2d 93 (1976).” 234 Kan. at 346.
In Thompson, a police officers testimony concerning an anonymous phone call he received advising him that a crime under investigation was committed by a man identified as “Crazy John” was held to be inadmissible hearsay, as it tended to identify the accused and establish his guilt.
A review of the record in this case reveals that the State’s only means to establish the identity of the defendants was through Boyce’s oral and written statements. Boyce was the State’s sole witness to the alleged drug sales. Indeed, Judge Brewster determined that excluding the officers’ testimony of Boyce’s statements required dismissing the complaints against the defendants Manues and Rowe. The State’s argument that the oral conversations and written reports were not being offered to prove the truth thereof is simply incorrect. The conversations and reports were vital to prove that the alleged crimes even occurred and to prove the identity of the individual defendants.
Additionally, the State argues that the tape recordings are not offered to prove the truth of the conversations recorded on the tape, but instead are offered to show that the events occurred. The State relies upon U. S. v. Shepherd, 739 F.2d 510 (10th Cir. 1984), for this proposition. In Shepherd, the court held that a government witness’ testimony that an individual gave him instructions to frighten another person was not hearsay. The court noted that an order or instruction is, by its nature, neither true nor false and thus cannot be offered for its truth. 739 F.2d at 514. The court reasoned that the instructions were offered to show that they occurred in order to establish the existence of a conspiracy to assault the victim for purposes of admitting the statements under the federal coconspiracy exception to the hear say rule. The instructions were not offered to prove the truth of something asserted.
Shepherd is not applicable to the facts before this court. The facts here disclose that the tape recordings were not in the nature of instructions or orders. Furthermore, no officer witnessed the alleged drug transactions, and the State had to rely solely upon Boyce to identify the taped voices and other essential portions of the tape recordings.
Boyce’s statements, reports, and tape recordings were clearly offered to prove the truth of the matter asserted, and, as such, the proposed evidence falls within the definition of hearsay.
The State next argues that, even if the excluded evidence constitutes hearsay, it is admissible because it falls within one or more of the exceptions to the hearsay rule contained in K.S.A. 1991 Supp. 60-460(d). These exceptions áre commonly known as the “present sense impression” (K.S.A. 1991 Supp. 60-460[d][l]), the “excited utterance” (K.S.A. 1991 Supp. 60-460[d][2]), and the “unavailable declarant” (K.S.A. 1991 Supp. 60-460[d][3]).
The State devotes a number of pages in its briefs to arguing that all three categories of evidence are admissible as part of the res gestae of the occurrence. The State notes that: “Prior to the adoption of the Code of Civil Procedure . . . declarations were admissible as part of the res gestae where the declarations were so closely connected with the principal occurrence as to form in reality a part of the occurrence.”
However, the common-law concept of res gestae has been modified in some areas by the provisions of K.S.A. 1991 Supp. 60-460(d). As the State notes in its brief, “[t]he adoption of 60-460(d) replaced the res gestae exception with the contemporaneous statement exception to the hearsay rule. (State v. Peterson, 236 Kan. 821, 696 P.2d 387.)”
Judge Card explains the correlation between the common-law res gestae approach and K.S.A. 1991 Supp. 60-460(d)(l) and (2):
“That class of ‘res gestae’ statements which are hearsay, if admissible at all, were so under the former practice, only because of their spontaneous character. . . .
"Clauses (1) and (2) of this section [K.S.A. 60-460(d)] describe conventional res gestae, admissible hearsay with the characteristic of spontaneity arising either from the reaction to contemporary perception or from the excitement which carries over from the event. . . . Whether a statement measures up to the requirement of spontaneity is largely a matter for the discretion of the trial court as held in Drake v. Moore, [184 Kan. 309, 336 P.2d 807 (1959).]” 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(d), p. 239 (1979). (Emphasis added.)
Boyce’s statements prior to and after the alleged purchase of drugs, and the report by Boyce, are not present sense impressions as contemplated by K.S.A. 1991 Supp. 60-460(d)(l), which requires that a statement be strictly contemporaneous with the act. See Smith v. Estate of Hall, 215 Kan. 262, 266-67, 524 P.2d 684, 688 (1974). Here, the statements by Boyce to the police and the reports written by Boyce do not qualify as statements contemporaneous with the alleged illegal activity of the defendants. All of the conversations Boyce had with police took place before or after and not as a part of the alleged criminal acts. Likewise, the reports were not prepared by Boyce until after the acts took place.
Further, the tape recordings did not meet the requirements of K.S.A. 1991 Supp. 60-460(d)(l). As defense counsel points out, the State failed to lay the necessary foundation for their admission. In order to establish a present sense impression, the State must show:
“1. An event or condition occurred.
“2. The declarant perceived the event or condition.
“3. The declarant made the statement while perceiving the event or condition.” (Emphasis added.) Barbara, Kansas Evidence Objections with Evidentiary Foundations § 7.6, p. 7-18 (1988).
The event or condition that the State is trying to establish occurred is that the defendants sold drugs to Boyce. However, none of the defendants are identified by Boyce on tape. Boyce does not state on the tapes that he is purchasing drugs. Boyce’s statements on the tapes simply do not show that the event the State is trying to prove occurred. Furthermore, the State presented no other evidence establishing that the drug transactions occurred. The police were unable to identify the defendants, did not witness Boyce enter or leave the residences, and did not personally view the defendants or any drug transactions. The State did not meet its foundational burden to admit the tapes under K.S.A. 1991 Supp. 60-460(d)(l).
The State next relies upon K.S.A. 1991 Supp. 60-460(d)(2), the “excited utterance” exception, as additional authority for admitting the taped statements. This exception to the hearsay rule requires the State to show:
“1. An event or condition occurred.
“2. It was startlingly sufficient to cause nervous excitement.
“3. The declarant perceived it.
“4. The declarant made the statement while under stress of nervous excitement.” Barbara, Kansas Evidence Objections with Evidentiary Foundations, § 7.6, p. 7-18 (1988).
The State claims that Boyce operated under a “nervous excitement” during the alleged drug buys, given the inherent dangers associated with acting as a drug informant. Once again, the State has failed to establish the first foundational element, that the event occurred. Moreover, the record reveals that the State failed to produce any evidence that would show anything “startling” occurred at the alleged buys. While the purchase of illegal contraband as a confidential informant is necessarily risky, as is borne out by Boyce’s unfortunate demise, the record shows that Boyce had been a confidential informant on a number of occasions and for a number of months. Undercover drug buys were a routine part of Boyce’s life and apparently part of his occupation. The record reveals that Boyce was a drug user and accustomed to making buys. The State has made no showing in the record that any of the events were “startlingly sufficient to cause nervous excitement.”
Finally, the State seeks admission of Boyce’s oral statements and written reports through K.S.A. 1991 Supp. 60-460(d)(3), the unavailable declarant exception. While there is no doubt the declarant, Boyce, was unavailable, the State has failed to meet the other requirements of the statute. K.S.A. 1991 Supp. 60-460(d)(3) provides:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
(d) A statement which the judge finds was made ... (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant’s recol lection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.”
State v. Hobson, 234 Kan. 133, 671 P.2d 1365 (1983), provides:
“The trial court is necessarily given considerable discretion in admitting statements under this exception. Verrton’s Kansas C. Civ. Proc. § 60-460(d) (1965); 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(d) (1979). In Smith v. Estate of Hall, 215 Kan. 262, 268, 524 P.2d 684 (1974), we held that under this provision the presence or absence of an incentive to falsify or distort is a question of fact to be determined by the trial judge in light of all the circumstances. See also State v. Brown, 220 Kan. 684, 688, 556 P.2d 443 (1976).” 234 Kan. at 158.
This court is in no better position than the trial courts to decide whether Boyce had any incentive to distort or falsify his statements, nor will we second guess the trial judges’ decisions.
According to Judge Gard, the statement “must have been made under circumstances so as to show that it was [made] in good faith, before there was an action pending, and with no incentive to falsify or distort. Any possible motive the declarant may have had for making a case for himself must be absent or the statement is clearly not admissible.” 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-460(d), p. 240 (1979). (Emphasis added.)
There is ample evidence in the record to suggest to the trial courts that Boyce’s statements were made with incentive to falsify or distort. It is well documented in the record that Boyce only got paid if he produced drugs and wrote a report implicating someone. This evidence alone would be sufficient for a trial judge to exclude the statements. Additionally, there is evidence in the record that Boyce obtained an early release from custody in Crawford County by agreeing to work as a drug informant. No abuse of discretion appears.
Defense counsel next contend that if this court were to find Boyce’s hearsay statements fit within the exceptions of K.S.A. 1991 Supp. 60-460(d), the statements still must be excluded. They assert that allowing the introduction of the statements into evidence would violate the defendants’ right of confrontation as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and the Bill of Rights of the Kansas Constitution. While we might agree with the arguments of defense counsel, we find no need to address the constitutional argument.
We conclude that all of the excluded evidence constituted hearsay and that none of it fell within any of the statutory exceptions found in K.S.A. 1991 Supp. 60-460(d). No error or abuse of discretion has been shown in the rulings of the trial judges in these cases.
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|
The opinion of the court was delivered by
McFarland, J.:
This is an action by a widow seeking to invalidate two revocable inter vivos trusts created by her husband, now deceased, and have the trust assets transferred to the testate probate estate wherein she is the residuary legatee. The district court ordered the corporate stock held by one trust transferred to the estate. The widow appeals from the district court’s refusal to (1) invalidate the trust and (2) order certain life insurance proceeds transferred to the probate estate. The trustee cross-appeals from the district court’s judgment ordering the transfer of all of the corporate stock to the probate estate.
In entering the summary judgment the district court made the following findings of uncontroverted facts:
“1. Will Cedric Taliaferro died, testate, on September 1, 1990. He was survived by his wife, Betty Taliaferro. No children had been bom to the couple, and Betty Taliaferro is the sole heir-at-law of the decedent. They were residents of Johnson County, Kansas.
“2. The will executed by the decedent left his entire estate to Betty Taliaferro, with the exception of a piece of property at the Lake of the Ozarks, which he left to his brother.
“3. The will was executed on March 29, 1990. At the same time, Mr. Taliaferro executed a trust instrument creating the ‘Taliaferro & Browne Trust,’ hereinafter referred to as the T&B Trust.
“4. The T&B Trust was a revocable, inter vivos trust. Mrs. Taliaferro did not consent to the trust.
“5. Mr. Taliaferro was the owner of 100% of the stock of Taliaferro & Browne, Inc., an engineering firm. Upon execution of the ‘Declaration of Trust for Taliaferro and Browne Trust,’ he transferred 100% of the stock of Taliaferro & Browne, Inc. to the T&B Trust, reserving to himself during his lifetime all income from the trust.
“6. Other than the stock of Taliaferro & Browne, Inc. the only asset of the trust is the proceeds from a life insurance policy on Mr. Taliaferro’s life. The life insurance policy was purchased and owned by Taliaferro & Brown, Inc., and the T&B Trust was named as the beneficiary. $598,093.12 in death benefits under the life insurance policy have been paid to the trust.
“7. The Declaration of Trust was amended twice by Mr. Taliaferro. The first amendment, executed on July 6, 1990, named Adoria Taliaferro, Mr. Taliaferro’s niece, to succeed him as trustee of the T&B Trust. The second amendment, executed July 10, 1990, provided that the net income of the T&B Trust will be paid to Mr. Taliaferro during his lifetime. Upon his death, the net income is to be paid to Betty Taliaferro during her life.
“8. Other provisions of the trust are largely irrelevant to this controversy, but a key clause of the trust provides that $327,000.00 is to be poured over into a second trust also established on March 29, 1990, which provides for a number of cash bequests to various individuals and entities. The second trust, the Will C. Taliaferro Trust, is not a subject of these motions for summary judgment.”
These findings of uncontroverted facts are not challenged on appeal. The district court then held: (1) the T&B trust was valid; (2) the life insurance proceeds were the lawful assets of the trust; and (3) the corporate stock should be transferred to the probate estate. Summary judgment was entered accordingly. The judgment was certified pursuant to K.S.A. 1991 Supp. 60-254(b) to be subject to immediate appeal.
The parties concede that it is established Kansas law that the surviving spouse may reach assets in a revocable inter vivos trust set up by the deceased spouse but to which the surviving spouse did not consent when necessary to obtain for the survivor his or her lawful distributive share of the decedent’s estate. They disagree as to what trust assets should be transferred to the decedent’s probate estate.
The district court’s decision and the parties’ respective positions rest upon a trilogy of Kansas appellate court decisions. These are Newman v. George, 243 Kan. 183, 755 P.2d 18 (1988); Ackers v. First National Bank of Topeka, 192 Kan. 319, 387 P.2d 840 (1963); and McCarty v. State Bank of Fredonia, 14 Kan. App. 2d 552, 795 P.2d 940 (1990). A careful analysis of each of these three cases is essential to our determination of the issues herein.
In Ackers v. First National Bank of Topeka, 192 Kan. 319, the deceased husband, Frank, died intestate. Frank had a child from his first marriage. Frank’s second wife, Bessie, had never been a resident of Kansas. At the time of Frank’s death, an action for separate maintenance/divorce was pending. Frank created a revocable inter vivos trust and transferred the bulk of his assets thereto. Bessie brought the action to bring the trust assets into Frank’s probate estate.
The district court found:
“ “The trust and all of the property conveyed to the trustee by Frank C. Ackers, including the real estate, was made without consideration and without the knowledge or consent of his wife, Bessie M. Ackers. One of his several purposes for creating the trust was to permit himself to enjoy the benefits and the income of the property during his own lifetime and to deprive his wife, Bessie M. Ackers, of any right therein at the time of his death, one-half of which would have otherwise gone to her under the law of descent and distribution.’ ” 192 Kan. at 322-23.
First, the Ackers court construed G.S. 1949, 33-101 (now K.S.A. 33-101), which provides:
“All gifts and conveyances of goods and chattels, made in trust to the use of the person or persons making the same shall, to the full extent of both the corpus and income made in trust to such use, be void and of no effect, regardless of motive, as to all past, present or future creditors; but otherwise shall be valid and effective.”
The court held that since there were no creditors, the trust was valid.
Next, the Ackers court considered Bessie’s rights under G.S. 1949, 59-505 (now K.S.A. 59-505), which provides:
“Also, the surviving spouse shall be entitled to receive one-half of all real estate of which the decedent at any time during the marriage was seized or possessed and to the disposition whereof the survivor shall not have consented in writing, or by a will, or by an election as provided by law to take under a will, except such real estate as has been sold on execution or judicial sale, or taken by other legal proceeding: Provided, That the surviving spouse shall not be entitled to any interest under the provisions of this section in any real estate of which such decedent in his lifetime made a conveyance, when such spouse at the time of the conveyance was not a resident of this state and never had been during the existence of the marriage relation.”
Bessie’s nonresidency was held to bar her claims under this statute.
The Ackers court then considered whether Bessie acquired any rights under G.S. 1949, 59-504 (now K.S.A. 59-504), which provides in pertinent part:
“If the decedent leaves a spouse and a child, or children, or issue of a previously deceased child or children, one-half of such property shall pass to the surviving spouse.”
or G.S. 1949, 59-602(2) (now K.S.A. 59-602[2]), which provides:
“Either spouse may will away from the other half of his property, subject to the rights of homestead and allowances secured by statute. Neither spouse shall will away from the other more than half of his property, subject to such rights and allowances, unless the other shall consent thereto in writing executed in the presence of two or more competent witnesses, or shall elect to take under the testator’s will as provided by law.”
Note: K.S.A. 59-602 was significantly amended in 1992. Said amendments will be discussed later in this opinion. The quoted form of the statute is the form applicable herein.
The Ackers court then noted that neither statute makes any distinction between resident and nonresident spouses. The court then stated:
‘‘We have now reached the crux of this controversy. If a spouse can during his or her lifetime malee an absolute conveyance of all separately owned property, both real and personal, and thus defeat the right of a nonresident spouse to inherit under the provisions of G.S. 1949, 59-504, may the right be defeated by a trust conveyance which the grantor reserves the right to revoke?” 192 Kan. at 329.
The Ackers court noted that the states which had decided the issue of the effect of a revocable inter vivos trust on the surviving spouse’s right to inherit were about equally divided in their conclusions. The Ackers court then concluded:
“We conclude that the husband of a nonresident wife may, by absolute sale, gift or other transfer made in good faith during his lifetime, deprive the wife of her distributive share. However, if the transfer is colorable only and the husband retains the power of revocation, it is fallacious, illusive and deceiving, and will be considered as fraud on the rights of the widow where she is deprived of her distributive share.
“The trust instrument in question reserved to the donor the power of revocation. The donor did not part with dominion over the trust res and the widow is not barred from claiming her distributive share of the corpus of the trust under the law of intestate succession. (G.S. 1949, 59-504.)” 192 Kan. at 333.
The trustee was then ordered to deliver one-half of the trust assets (plus increments and less applicable expenses) to the administrator of Frank’s estate.
We shall next consider Newman v. George, 243 Kan. 183. Albert Newman died intestate survived by his widow, Loretta. Albert had no children. At the time of his death, the bulk of Albert’s assets were in a revocable inter vivos trust. No real estate was transferred to the trust. Loretta had never consented to the trust and was, in fact, disabled and incapable of consenting thereto. After Albert’s death, Loretta was to receive, during her lifetime, all income from the trust.
The Newman court relied on Ackers in holding: (1) K.S.A. 59-505 did not apply because no real estate was transferred to the trust; and (2) neither K.S.A. 59-602 nor K.S.A. 59-603 applied as those statutes were applicable only to testate estates (the latter statute concerns a surviving spouse’s election to take under or against a will). The Newman court further held that Loretta’s rights were fixed by K.S.A. 59-504. As the surviving spouse of Albert, who died intestate without issue, Loretta was thus entitled to all of Albert’s estate.
The Newman court then concluded:
“It is true that the facts of this case are much more difficult than those in Ackers. But the rule of law there enunciated is the same. There, the court held if one spouse transfers property without consent of the other spouse and retains the power of revocation, the transfer is ‘fallacious, illusive and deceiving, and will be considered as fraud.’ 192 Kan. at 333. Thus, there was no need to prove fraud. It was implied from the creation of the revocable trust without consent.
“The difficulty in this case is that Loretta Newman was under disability and could not consent. Under these circumstances, Albert Newman should have made a will rather than use the trust technique. The rule of Ackers has been the law of this state since 1963. Thus, it is a part of the body of law utilized by estate planners since that time. To reverse Ackers to serve the needs of this estate and carry out the intent of Albert Newman would be a bad precedent which would compromise the spousal protection set out in Ackers.
“We hold the Albert Newman Trust invalid. The joint tenancy property placed in the trust by Rosie Brady after the death of Albert Newman should be returned to the joint tenancy accounts for determination of ownership. All other property in the estate is inherited by Loretta Newman by intestate succession.” 243 Kan. at 188-89.
We shall next consider McCarty v. State Bank of Fredonia, 14 Kan. App. 2d 552. Ralph McCarty died testate survived by his widow, Mary. Apparently, Ralph had no children, although the opinion does not specifically so state. Ralph’s probate estate consisted of $10,000 in real and personal property which was left to his parents. Ralph also had a $25,000 individual retirement account (IRA) in which his brother Clarence was the named beneficiary. Mary did not consent to either the will or the IRA.
The Court of Appeals held that the IRA (1) should be considered and construed as a revocable inter vivos trust and (2) was not subject to the provisions of K.S.A. 9-1215. 14 Kan. App. 2d at 557. Building upon Ackers and Newman, the Court of Appeals in McCarty reasoned:
“The issue in Newman was whether the rule of election is governed by K.S.A. 59-602(2) and K.S.A. 59-603, which would entitle Loretta to one-half of the estate, or whether the rules of intestate succession in K.S.A. 59-504 apply, which would entitle Loretta to the entire estate.
“The Newman court applied Ackers and concluded that when Albert died intestate, Loretta took the entire estate by intestate succession because Albert left no issue and died without a will. 243 Kan. at 188. K.S.A. 59-602(2) and 59-603 did not apply because Albert, like Frank Ackers, died intestate, and those statutes applied only to testate estates. The court acknowledged that its ruling was not consistent with Albert’s intention but opined that the rule of Ackers was so well-established that to make an exception would compromise the spousal protection it established. 243 Kan. at 189.
“The court rejected an argument by the trust beneficiaries that the trial court was required to make a finding of fraudulent intent on the part of Albert. Albert had provided for his wife in his trust, but because she could not legally consent to its provisions, the court felt bound by the rule set forth in Ackers that ‘if one spouse transfers property without consent of the other spouse and retains the power of revocation, the transfer is “fallacious, illusive and deceiving, and will be considered as fraud.” 192 Kan. at 333.’ 243 Kan. at 188-89.
“The fact the spouse in Ackers was a nonresident and Loretta Newman is a resident makes no difference.
“The decisions of Ackers and Newman clearly apply to the revocable inter vivos trust (IRA) created by Ralph. Ralph’s actions are ‘fallacious, illusive and deceiving, and will be considered as fraud,’ Ackers, 192 Kan. at 333, and fall squarely within the rule announced in Ackers as applied in Newman.
“We hold, • as did Newman, that the Ralph McCarty IRA is void and invalid. Because Ralph died testate, K.S.A. 59-602(2) and 59-603 apply.” 14 Kan. App. 2d at 561-62.
Thus, pursuant to K.S.A. 59-602(2), Mary received one-half of Ralph’s assets. Because the IRA was held to be void, IRA proceeds not transferred to Mary went to Ralph’s parents under the terms of the will.
This trilogy of cases is discussed in an article appearing in the December 1992 Journal of the Kansas Bar Association: Kuether and Thompson, The Capricious Operation of the Kansas Elective Share: Feast or Famine for the Surviving Spouse, 61 T.K.B.A. 32 (Dec. 1992).
With this background, we turn to the issues before us.
The first issue in the appeal is whether the district court erred in holding the trust to be valid.
The appellant, in reliance upon Newman and McCarty, contends that the trust should have been held to be invalid.
The district court herein upheld the validity of the trust based upon the trust validly receiving the life insurance proceeds. The district court stated that under Ackers the widow herein would be entitled to whatever share of the corporate stock was necessary to give her one-half of the estate under K.S.A. 59-602(2), and that should be the result herein. However, the district court concluded that Newman and McCarty required that all corporate stock be transferred to the estate for distribution to the widow as the residuary legatee. The district court was obviously dissatisfied with this result.
It is interesting that Newman held the trust therein was invalid based upon Ackers and that McCarty invalidated the trust therein based upon Ackers and Newman when the Ackers court expressly held the trust therein to be valid and left half of the trust assets intact and in the hands of the trustee. The language in Ackers relied on by both subsequent opinions for invalidating the trusts is as follows:
“We conclude that the husband of a nonresident wife may, by absolute sale, gift or other transfer made in good faith during his lifetime, deprive the wife of her distributive share. However, if the transfer is colorable only and the husband retains the power of revocation, it is fallacious, illusive and deceiving, and will be considered as fraud on the rights of the widow where she is deprived of her distributive share.
“The trust instrument in question reserved to the donor the power of revocation. The donor did not part with dominion over the trust res and the widow is not barred from claiming her distributive share of the corpus of the trust under the law of intestate succession.” (Emphasis supplied.) 192 Kan. at 333.
Clearly, under Ackers, only the transfer of the assets depriving the surviving spouse of her distributive share was to be “considered as fraud on the rights of the widow.” The categorization of the transfer as fraudulent was the legal justification for undoing the transfer of the assets to which the widow was entitled and removing them from the valid trust.
As previously noted, the district court avoided invalidating the trust under Newman and McCarty by holding the trust was the valid recipient of the life insurance proceeds to which the widow had no right. With or without the insurance proceeds factor, we hold the trust to be valid and disapprove any language in Newman and McCarty invalidating the trust in Newman and the IRA in McCarty (considered as a trust in the opinion). We reaffirm Ackers’ handling of this issue.
The other issue in the appeal is whether or not the district court erred in holding the life insurance proceeds were lawful trust assets not subject to the widow’s claims herein.
Appellant’s claim to the insurance proceeds is predicated upon the trust being held to be an invalid entity. The argument is that if the trust is held to be invalid, then it was not a lawful entity to receive the insurance proceeds. The trust would then have been in the same category as a situation where the named beneficiary of a life insurance policy preceded the insured in death. In such case, the proceeds would be distributed in accordance with K.S.A. 40-415, which provides:
“In all cases of the death of the beneficiary in any insurance policy before the death of the insured, and thereafter the insured dies without having named' another beneficiary and without having disposed of said insurance by will, then said insurance shall go to the estate of the insured, the same as other property not exempt.”
The widow (appellant herein) would then take the proceeds under the residuary clause of the will.
Our resolution of the first issue determines this issue. The trust is valid and there is no legal impediment to its being the beneficiary under the policy.
This brings us to the issue raised in the cross-appeal. The issue is whether the district court erred in ordering all of the corporate stock transferred to the executor of the estate as opposed to as much thereof as necessary to make one-half of the total assets of the estate available to the widow.
We must again look to the trilogy of cases relied on herein. Ackers involved an intestate estate. As the deceased had a child, the widow’s claim was for one-half of decedent’s assets pursuant to K.S.A. 59-504, which provides:
“If the decedent leaves a spouse and no children nor issue of a previously deceased child, all the decedent’s property shall pass to the surviving spouse. If the decedent leaves a spouse and a child, or children, or issue of a previously deceased child or children, one-half of such property shall pass to the surviving spouse.”
The widow’s share would have remained at one-half even if K.S.A. 59-505 had been available to a nonresident spouse or if K.S.A. 59-602(2) concerning limitation on testamentary power had been applicable.
Newman, again, involved an intestate estate. This time, however, decedent had died childless. K.S.A. 59-505 did not apply as no real estate was involved. K.S.A. 59-602 was held not to apply as there was no will. Thus, the widow took all of the trust assets.
McCarty is the only case in the trilogy to involve a testate estate. K.S.A. 59-602(2) was applied, which (in the form in effect at the time) provided:
“(2) Either spouse may will away from the other half of his or her property, subject to the rights of homestead and allowances secured by statute. Neither spouse shall will away from the other more than half of his or her property, subject to such rights and allowances, unless the other shall consent thereto in writing executed in the presence of two or more competent witnesses, or shall elect to take under the testator’s will as provided by law.”
The trust (IRA) was held to be invalid, by virtue of containing property which was included in the widow’s one-half distributive share. The balance of the IRA went to the deceased’s parents as legatees under the will. We have previously herein disapproved this holding.
The McCarty opinion makes no reference to whether or not the widow filed an election pursuant to K.S.A. 59-603 to take against the will. K.S.A. 59-603 in the form in effect in McCarty (and before us) provided:
“The surviving spouse, who shall not have consented in the lifetime of the testator to the testator’s will as provided by law, may make an election whether he or she will take under the will or take what he or she is entitled to by the laws of intestate succession; but he or she shall not be entitled to both. If the survivor consents to the will or fails to make an election, as provided by law, he or she shall take under the testator’s will.”
The cross-appellants assert that a check of the district court files in McCarty shows that an election to take against the will was filed. This is not disputed by the cross-appellees. Such fact is consistent with the McCarty opinion’s application of K.S.A. 59-602(2), which limits the widow to one-half of the property when she takes against the will.
No election to take against the will has been filed herein. The cross-appellant contends that unless such election is filed the widow has no claim against the trust assets. The reason for not filing the election herein is obvious. If the widow were to be successful in invalidating the trust, she would receive all the trust assets, including the insurance proceeds, as the will’s residuary legatee plus all bequests to her under the will. She would not be taking against the will, only expanding the estate’s assets. If, on the other hand, she files an election to take against the will she is limited to one-half of the assets pursuant to K.S.A. 59-602(2).
At this point, it is appropriate to point out the 1992 amendments to K.S.A. 59-602(2) and K.S.A. 59-603 contained in H.B. No. 2756. The legislative history of the amendments reflects they first arose in 1988 from concern over the result reached in Netoman. The matter of possible amendment was referred to the Kansas Judicial Council, which recommended the amendments ultimately appearing in H.B. No. 2756.
Under the 1992 amendments, K.S.A. 59-602(2), (3) now provide:
“(2) Either spouse, by will, or other disposition subject to a surviving spouse’s right of election, may transfer away from the other, half of such spouse’s property, subject to the rights of homestead and allowances secured by statute. Neither spouse, by will, or other disposition subject to a surviving spouse’s right of election, shall transfer away from the other, more than half of such spouse’s property, subject to such rights and allowances, unless the other shall consent, in writing, executed in the presence of two or more competent witnesses to the will, if any, and shall have consented to any and all other dispositions subject to a surviving spouse’s right of election as provided by law, or shall elect to take under the testator’s will and all other dispositions subject to a surviving spouse’s right of election as provided by K.S.A. 59-603, and amendments thereto.
“(3) The right of election provided in this section shall only apply to dispositions that the surviving spouse did not consent to.”
See L. 1992, ch. 79 § 1.
K.S.A. 59-603 as amended in 1992 now provides:
“(a) The surviving spouse, who shall not have consented in the lifetime of the decedent to the testator’s will and any and all other dispositions subject to a surviving spouse’s right of election as provided by law, may make an election whether such surviving spouse will take under the will and such other dispositions subject to a surviving spouse’s right of election or take what such surviving spouse would be entitled to by the laws of intestate succession were such surviving spouse the surviving spouse of a decedent who leaves a spouse and child; but such surviving spouse shall not be entitled to both. If the survivor consents to the will and all other dispositions subject to a surviving spouse’s right of election or fails to make an election, as provided by law, the survivor shall take under the testator’s will and all other dispositions subject to a surviving spouse’s right of election. The will or other dispositions shall be effective except as to the elected share.
“(b) The election shall be filed in the district court in the case in which the decedent’s estate, testate or intestate, is being administered. The court shall have the jurisdiction and venue to orderVi of the dispositions, subject to the surviving spouse’s right of election, be set aside to the surviving spouse to the extent necessary, pro rata, from among the dispositions subject to the surviving spouse’s right of election unless the dispositions otherwise provide the source of payment.
“(c) The right of election provided in this section shall only apply to dispositions that the surviving spouse did not consent to.”
See L. 1992, ch. 79 § 2.
The result reached in Newman is now legislatively modified. Surviving spouses whose deceased spouses have attempted to deprive them of their one-half share under K.S.A. 59-603 by creation of another disposition such as inter vivos trusts are treated equally regardless of whether or not the deceased died testate or intestate, and whether or not the deceased was childless.
The time for filing an election herein to take against the will has been extended pending resolution of this appeal.
We conclude that the judgment of the district court not requiring the widow to file an election must be reversed as well as that portion of the judgment ordering the trustee to transfer all corporate stock to the executor. On remand, the widow shall be required to file an election. If she elects to take under the will, the trust and its assets are not available to her. If she elects to take against the will, then she is entitled, pursuant to K.S.A. 59-602(2), to take one-half of the assets over which decedent had control at the time of his death (the assets in the estate plus the corporate stock). The district court should determine how much of the corporate stock is subject to transfer to afford the widow her one-half distributive share, less any applicable expenses, and order such transfer.
This result, we believe, is consistent with the provisions of K.S.A. 59-602(2) and K.S.A. 59-603 even prior to the 1992 amendments. K.S.A. 59-602(2), prior to amendment, limited the power of a married person dying testate to dispose of his or her property. Not more than one-half could go to other than the surviving spouse unless he or she consented thereto if the survivor elected to take against the will. The effect of the district court decision herein was to expand the limitation. Newman permitted the widow to take all, but involved an intestate estate where K.S.A. 59-602(2) was held to be inapplicable.
McCarty did not directly expand the limitations as to the widow as she took the statutory one-half. However, by improperly invalidating the IRA, the McCarty opinion expanded the effect of K.S.A. 59-602(2) by nullifying the decedent’s disposition as to all IRA funds and causing what should have been the IRA beneficiary’s remaining share to be transferred to the estate and distributed in accordance with the terms of the will.
The judgment is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
McFarland, J.:
Glenn Cahill appeals his j'ury trial convictions of attempted rape (K.S.A. 1991 Supp. 21-3301; K.S.A. 21-3502) and aggravated criminal sodomy (K.S.A. 21-3506).
The facts may be summarized as follows. Late on the evening of August 18, 1989, defendant arrived at the home of Jan W. in Leavenworth. Defendant and Ms. W. had been seeing each other socially. Defendant was wearing a black shirt and jeans and had been drinking. Ms. W. was not at home, but defendant remained and talked to her two daughters, 16-year-old Jennifer and 11-year-old J. W. Defendant invited the girls to eat dinner at a restaurant where their father worked. The three drove around a while talking, with most of the conversation being about Ms. W. They returned home. Jennifer was tired and went into the house, leaving J.W. sitting outside talking to defendant. Jennifer said she would come back in 15 minutes if J.W. had not entered the house. Jennifer talked on the telephone a while. When she went back outside, J.W. and the defendant were gone.
J.W. testified defendant wanted to talk further about Ms. W. Defendant and J.W. walked to his home where he picked up a beer. He then told J.W. he wanted to go to a wooded area and smoke marijuana. J.W. accompanied defendant into the woods where he smoked marijuana and urged J.W. to join him in smoking. She refused. J.W. testified defendant then pushed her down and told her to take off her clothes. Defendant told her he would cut her throat if she did not do as he said. J.W. did not see a knife, but believed defendant had one and was very frightened.
Defendant then began fondling J.W. and made her perform oral sex on him. Defendant then attempted sexual intercourse. At this point in time, an individual by the name of Cliff Carson ran by carrying a fire extinguisher. His attention was caught by what he thought was a “noisy log,” and he sprayed the same with his fire extinguisher. Startled; Carson realized this “log” was a man in dark clothes and ran away. Two acquaintances of Carson’s were running a short distance behind Carson. One of these men was Mark Sedlock, who testified that the man who had been sprayed with the fire extinguisher was the defendant, that defendant appeared to be attempting to shield a child or a small woman from view, and that this female person was trying to get dressed. Sedlock and his companion ran on through the woods. No explanation has been given as to why the three men in the fire extinguisher group were running through the woods.
J.W. testified that after she and Cahill were squirted with the fire extinguisher, defendant told her to get dressed and forced her to accompany him to an area behind defendant’s house. Defendant then again attempted sexual intercourse and oral sex. Defendant warned J.W. that if she said anything about the night’s events, he would kill her. She started running home.
Meanwhile, Ms. W. had contacted the Leavenworth Police Department about her missing daughter. The officer that found J.W. testified she was crying and screaming. Cahill was arrested shortly thereafter. He was wearing a dark shirt and jeans. His clothing was dirty and wet with grass and weeds stuck thereto. Defendant was tried for and convicted of aggravated criminal sodomy and attempted rape. He appeals therefrom.
LESSER INCLUDED OFFENSE
For his first issue, defendant contends the trial court erred in failing to instruct the jury on attempted indecent liberties with a child as a lesser included offense. K.S.A. 1991 Supp. 21-3301; K.S.A. 1991 Supp. 21-3503.
A trial court has an affirmative duty to instruct the jury on all lesser included offenses established by the evidence. An instruction on a lesser included offense must be given even though the evidence supporting the lesser included offense may not be strong or extensive. State v. Stallings, 246 Kan. 642, 648, 792 P.2d 1013 (1990). An instruction on a lesser included offense must be given if the evidence might reasonably cause a jury to convict a defendant of the lesser offense. State v. Sutherland, 248 Kan. 96, 101, 804 P.2d 970 (1991).
In support of his position herein, defendant relies heavily on State v. Coberly, 233 Kan. 100, Syl. ¶ 4, 661 P.2d 383 (1983), wherein we held:
“Under K.S.A. 21-3107(2)(d) the crime of indecent liberties with a child is a lesser included offense of rape where the evidence presented by the State establishes that the defendant forcibly- raped a female under sixteen years of age.”
This reliance is misplaced. In Coberly defendant was charged with and convicted of both indecent liberties with a child and rape for a single act. The issue in Coberly was multiplicity. The statute (K.S.A. 21-3107[2][d]) cited in the quoted syllabus paragraph is the statute defining multiplicity. Multiplicity is not an issue herein.
This issue is controlled by State v. Lilley, 231 Kan. 694, 647 P.2d 1323 (1982). In Lilley, defendant was convicted of the rape of a 14-month-old girl. He argued it was error for the court not to have instructed on indecent liberties with a child as a lesser included offense of rape. In rejecting this argument, we stated:
“The elements of rape are set out in K.S.A. 21-3502(1):
‘Rape is the act of sexual intercourse committed by a man with a woman not his wife, and without her consent when committed under' any of the following circumstances:
‘(a) When a woman’s resistance is overcome by force or fear; or
‘(b) When the woman is unconscious or physically powerless to resist; or
‘(c) When the woman is incapable of giving her consent because of mental deficiency or disease, which condition was known by the man or was reasonably apparent to him; or
‘(d) When the woman’s resistance is prevented by the effect of any alcoholic liquor, narcotic, drug or other substance administered to the woman by the man or another for the purpose of preventing the woman’s resistance, unless the woman voluntarily consumes or allows the administration of the substance with the knowledge of its nature.’
“Since K.S.A. 21-3501 defines ‘woman’ as ‘any female human being’ rape was obviously a proper charge in this case. This section replaced the previous offense of forcible rape while K.S.A. 21-3503 replaced statutory rape. Lilley could have been charged with either offense. The State properly chose to charge him with the former.
“K.S.A. 21-3503(1) states:
‘Indecent liberties with a child is engaging in either of the following acts with a child under the age of sixteen (16) years who is not the spouse of the offender:
‘(a) The act of sexual intercourse;
‘(b) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.’
“Indecent liberties with a child could in some cases constitute a lesser included offense of rape. The trial court’s duty to instruct on lesser included crimes is governed by K.S.A. 21-3107(3), and that duty arises only when there is evidence under which the defendant might have reasonably been convicted of the lesser offense. State v. Staab, 230 Kan. 329, 339, 635 P.2d 257 (1981). Here the age of the victim prevented her consent. Thus, under these circumstances no evidence of the lesser offense could have been offered. As such the trial court properly refused to give the instruction.” 231 Kan. at 696-97.
Note: The rape statute’s requirement that it does not apply to nonconsensual sexual intercourse between husband and wife was removed by a 1983 amendment (L. 1983, ch 109, § 2, effective July 1, 1983).
Thus, indecent liberties is a lesser offense of rape only where there is an issue as to consent. The victim testified her resistance was overcome by force and fear. The defendant denied any sexual activities occurred between himself and J.W. Thus, there was no evidence of attempted indecent liberties. The crime was attempted rape, of which defendant could have been found guilty if the victim and the corroborating evidence were believed, or not guilty if the defendant’s testimony were believed. We find no error in the trial court’s failure to instruct on attempted indecent liberties as a lesser included offense of attempted rape.
REFUSAL TO GRANT A MISTRIAL
For his next issue, defendant contends the trial court abused its discretion when it denied defendant’s motions for a mistrial. Defendant contends three trial incidents warranted the declaration of a mistrial. Each will be discussed in turn. First, however, the applicable rules need to be stated.
K.S.A. 22-3423 provides:
“(1) The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessary because:
(c) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.”
Declaration of a mistrial is a matter entrusted to the trial court’s discretion and will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Mayberry, 248 Kan. 369, Syl. ¶ 8, 807 P.2d 86 (1991).
Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Martin, 237 Kan. 285, Syl. ¶ 2, 699 P.2d 486 (1985).
The first complained-of incident occurred during the testimony of Cliff Carson. This is the individual who sprayed the fire extinguisher. Carson was called as a witness for the State and testified on direct examination as to what he did and what he saw in the woods that night relative to the charges herein. On cross-examination by defense counsel, inquiry was made as to how Carson had become involved in the case. The following colloquy took place:
“Q. How did you first get contacted about this whole thing?
“A. Contacted?
“Q. Yes. About that evening, who approached . . . you about the fire extinguisher, spraying the alleged assailant, etc.?
“A. [H]is name is Robert. He works at the prison.
“Q. Robert? '
“A. Yeah, I can’t remember his last name. Cannon is his last name. He had come to me at my now wife’s house. At the time it was my girlfriend. He said somebody had squirted Cahill. He said Glenn Cahill. He said his name. And said somebody squirted him. He had been on parole for two weeks and he raped a little girl.
“MR. FARMER: That is all, your Honor.”
Following redirect examination, the jury was excused for the day, whereupon defense counsel moved for a mistrial based upon the claimed prejudicial effect of the reference to defendant having been out of prison two weeks and having raped a little girl. The trial court denied the motion, reasoning that the answer was in response to a question by defense counsel during cross-examination and had not been induced by the prosecution.
We agree. Defense counsel obviously was wanting to know what made the witness relate the occurrence in the woods to the criminal charges herein. The witness was explaining what had transpired in that regard.
An additional appellate complaint relative to this incident is made concerning the trial court’s failure to admonish the jury as to the witness’ complained-of response. A review of the record indicates no such admonition was requested. The trial court, in denying the motion for a mistrial, stated:
“And the thing about it is, though, if I would have told the jury at that particular time to disregard it, it probably would have emphasized it more and so forth.
“Now, I could put it in the Instructions at the end of the case that they are not to take into account anything other than this particular charge and anything else that might have been stated in the trial, but, here again, that might emphasize it too.
“MR. FARMER [defense counsel]: Yes. Well, —
“THE COURT: So I just let it go, you see, instead of trying to say anything further because, basically, other than that, the jury didn’t know.”
Clearly, defense counsel was agreeing with the trial court’s rationale for not giving an admonition or limiting instruction. It would be improper to entertain a claim of abuse of judicial discretion made for the first time on appeal in such circumstances.
The second complained-of incident occurred on the first day of trial. A heavy presence of armed , and uniformed law enforcement officers was in the courtroom. When defense counsel complained about this, the trial court agreed and imposed restrictions. Defendant contends that the limitations came too late as he had already been deprived of a fair trial.
In State v. Myrick & Nelms, 228 Kan. 406, 616 P.2d 1066 (1980), complaint was made over the large amount of security present throughout the trial. We held:
“The basic principle involved is an accused’s right to the presumption of innocence until guilt is proved beyond a reasonable doubt; however, the accused’s rights must be balanced with the duty of the trial judge to protect the lives of the trial participants and to protect the institution of the judicial process. . . .
“. . . From this distance, it would be easy to find security was overdone, but placing ourselves in the position of the trial judge at that time and place, we find it a proper exercise of the court’s power to take the security measures necessary to protect the parties and the judicial process. The balancing of the competing interests lies within the discretion of the trial judge, for it is he who is best equipped to decide which security measures should be adopted. [Citations omitted.] No demonstrable prejudice to appellants was shown. The issue is without merit.” 228 Kan. at 418-19.
In the State’s brief, there is reference to an article appearing in the Leavenworth Times wherein defendant was reported to have offered a $5,000 bounty for the déaths of J.W. and Ms. W. prior to their testifying herein. The portion of the record cited to contain the article is not before us. Defendant does not dispute its existence, however.
In the totality of the circumstances herein, including the trial court’s prompt remedial action, we find no abuse of judicial discretion in denying the motion for a mistrial which was grounded on the presence of the law enforcement officers.
For his final point on this issue, defendant contends the trial court abused its discretion in denying his motion to excuse the jury panel because: (1) some potential jurors might have seen defendant being brought to the courthouse by Kansas State Penitentiary (KSP) guards (he was an inmate at the time); (2) some potential jurors may have seen defendant in shackles immediately prior to his being brought into the courthouse; and (3) one of the jury panel was recognized by the defendant as being a KSP guard and who was seen conversing with escorting KSP guards. The court excused the KSP guard who was on the jury panel before voir dire. At the close of the State’s case, the defendant asserted, as additional grounds for a mistrial, that the potential juror who was a guard had stated in a loud voice to the guards who were escorting defendant that he could not serve as a juror because he was a KSP guard and Cahill was an inmate therein. Just where this was alleged to have occurred and whether any prospective jurors might have been in a position to overhear same is unclear.
The trial court held that defendant’s right to a fair trial had not been violated. Applying the rules previously stated herein, we find that no clear showing of abuse of judicial discretion has been shown in any of the complained-of particulars within this issue.
LIMITATION ON CROSS-EXAMINATION OF WITNESSES
For his next issue on appeal, defendant contends the trial court abused its discretion in improperly limiting his cross-examination of Cliff Carson and Mark Sedlock.
Defendant’s theory of defense needs to be stated in some detail to bring this issue into proper perspective. Defendant is a large man weighing about 300 pounds. He had undergone surgery on a number of occasions, including a relatively recent knee replacement. He argued he could not have raised himself from the ground as easily as was described by the fire extinguisher witnesses (Carson and Sedlock). He testified the dirt, grass, and wetness on his clothing observed at the time of arrest came from working on a motor vehicle.
Defendant testified Ms. W. was angry with him because he was seeing other women. He further testified Ms. W. was a drug dealer who was angry with him because he had stolen some of her stock in trade. Further, Ms. W. sent two of her customers (Sedlock and Carson) over to defendant’s residence on the night in question to collect the stolen cocaine. When defendant did not return the cocaine, Sedlock and Carson squirted him and his dog with a fire extinguisher they were carrying and then left the premises. Defendant’s position was that Ms. W.’s anger with him caused her to invent the story of sexual crimes against her daughter, J.W., and to cause J.W., Jennifer, Sedlock, and Carson to testify falsely to incriminate defendant.
The limitation on cross-examination came when defense counsel asked Carson and Sedlock if they had ever purchased cocaine from Ms. W. The trial court held the questions were not relevant. In his opening statement, defense counsel concentrated on Ms. W. being angry with defendant over his seeing other women and having taken some cocaine from her house. He stated the evidence would show Ms. W. put her daughter up to making false accusations. There was no intimation Carson or Sedlock were in on Ms. W.’s plan of revenge or even knew her. The questions to Carson and Sedlock about prior drug purchases from Ms. W. came in the State’s case in chief. There was no argument made to the court that such questions were a part of a defense theory that Ms. W. was their drug purveyor and that she had induced them to testify falsely. Mention of Sedlock and Carson being drug-motivated members of the plot for revenge concocted by Ms. W. only comes in through defendant’s testimony. In determining whether or not the limitation on cross-examination constituted an abuse of judicial discretion, we must look at the circumstances existing at the time of the complained-of rulings. At that time there was no showing of relevancy. We find no abuse of discretion in the complained-of limitation on cross-examination.
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|
The opinion of the court was delivered by
Herd, J.:
This is an action against an insurance company for interest arising out of the delayed payment of a settlement agreement. Pursuant to K.S.A. 1991 Supp. 40-2,126, the district court ordered CNA/Continental Casualty Company (CNA) to pay Mary Kay Hudgens $7,957.59 in interest. We reverse.
On February 8, 1990, Hudgens brought a medical malpractice suit against Stephanie F. Nellis, M.D., Joseph R. Miranda, M.D., and The Wichita Clinic, P.A., claiming damages for failing to timely diagnose and treat Hudgens’ breast cancer. The. doctors’ primary professional liability insurance is provided by CNA, which hired Amy Lemley to represent the defendants in that matter.
In September 1991, Hudgens’ attorney, Bill Syrios, and Jerry Remick, a claims specialist for CNA, entered into settlement discussions involving amounts in excess of $400,000. CNA’s maximum coverage for the suit was $400,000, $200,000 for each doctor. Therefore, any settlement in excess of $400,000 would require a contribution from the Health Care Stabilization Fund (Fund). On September 24, 1991, CNA tendered its $400,000 combined policy limits to the Fund and requested the Fund continue handling the suit. Lemley continued to represent the doctors on behalf of the Fund. On September 26, 1991, Remick and Syrios agreed to a total settlement of $499,940 after the Fund advised Remick it would contribute $99,940 to the proposed settlement. The Fund had no direct contact with Syrios during the settlement negotiations and Lemley was not involved in the discussions regarding the settlement amount.
On October 1, 1991, CNA issued and sent a check, in the amount of $106,614, to an annuity company as provided for by the settlement agreement. CNA also sent a check in the amount of $293,386 to the Fund, thereby expending its $400,000 policy limit. On October 9, 1991, Lemley notified Syrios that before any claim could be paid by the Fund the district court had to hold a hearing and approve the settlement, pursuant to K.S.A. 40-3410(c). On October 25, 1991, the district court conducted the settlement hearing and approved the settlement agreement, approved attorney fees pursuant to K.S.A. 7-121b, and dismissed the case with prejudice. On the same day, the parties executed the settlement agreement, and Hudgens also executed a release of all claims.
On November 12, 1991, the Fund received a certified copy of the journal entry approving the settlement agreement. On November 15, 1991, the Fund issued its check for $393,326 ($293,396 4- 99,940 = $393,326) payable to Hudgens and her attorney. On November 18, 1991, the Fund mailed this check to Lemley. On the following day, Lemley presented the check to Hudgens and her attorney, who released CNA at that time. Commencing in November 1991, Hudgens began receiving $600 per month as provided for in paragraph 2 of the settlement agreement.
On November 20, 1991, Syrios wrote to Lemley demanding payment of interest at the rate of 18% per annum because CNA’s settlement payment was not made within 30 days of reaching an agreement between Hudgens and CNA. Lemley denied any interest was due because the settlement agreed to on September 26, 1992, was a proposed settlement until the trial court approved it on October 25, 1991, and Hudgens had received payment of the settlement within 30 days of that date. On January 24, 1992, Hudgens filed her petition in this matter, claiming CNA owed her interest at the rate of 18% per annum on the unpaid settlement from the date of the agreement, September 26, 1991, until payment on November 19, 1991. Hudgens also prayed for attorney fees and costs.
The parties waived trial or hearing in this case and submitted the dispute to the trial court based upon stipulated facts. Included in the stipulation is the following statement: “Neither the Fund, nor the Kansas Department of Insurance have written rules or regulations setting forth specific procedures which govern how health care provider claim settlements involving both insurance company and Fund money are to be handled.” The district court judge issued a letter opinion stating in part:
“I find that CNA acted as the agent for the Fund in settling the claim and then CNA chose the Fund as its agent for payment of a portion of its obligation under the settlement. Therefore, CNA must bear the results of the failure of the Fund to pay the claimant until November 19, 1991. Interest is awarded to Ms. Hudgens at the rate of 18% per annum from the date of the agreement of September 26, 1991, to November 19, 1991, on $293,386.00.”
Thus, CNA was ordered to pay $7,957.59.
Because all the evidence in this matter was submitted to the trial court on an agreed stipulation of facts and documentary evidence, this court has the same opportunity to examine and consider the evidence as did the trial court and to determine de novo what the facts establish. Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990).
CNA first claims the 30-day payment provision of K.S.A. 1991 Supp. 40-2,126 does not start to run until the insurance settlement is approved by the district court pursuant to K.S.A. 40-3410 when the Health Care Stabilization Fund is involved.
K.S.A. 1991 Supp. 40-2,126 provides:
“Except as otherwise provided by K.S.A. 40-447, 40-3110 and 44-512a, and amendments thereto, each insurance company . . . which fails or refuses to pay any amount due under any contract of insurance within the time proscribed herein shall pay interest on the amount due. If payment is to be made to the claimant and the same is not paid within 30 calendar days after the amount of the payment is agreed to between the claimant and the insurer, interest at the rate of 18% per annum shall be payable from the date of such agreement.”
In 1976, the legislature created the Health. Care Stabilization Fund “[f]or the purpose of paying damages for personal injury or death arising out of the rendering of or the failure to render professional services by a health care provider” who has qualified for coverage. K.S.A. 1991 Supp. 40-3403(a). One of the Fund’s functions is to pay “[a]ny amount due from a judgment or settlement which is in excess of the basic coverage liability of all liable resident health care providers.” K.S.A. 1991 Supp. 40-3403(c)(1). The Insurance Commissioner administers the Fund. K.S.A. 1991 Supp. 40-3403(a).
The Fund must follow certain procedures in accordance with K.S.A. 40-3410 when paying a settlement. That statute provides:
“When the insurer of a health care provider or inactive health care provider covered by the fund has agreed to settle its liability on a claim against its insured or when the self-insurer has agreed to settle liability on a claim and the claimant’s demand is in an amount in excess of such settlement; . . . the claimant and the [insurance] commissioner may negotiate on an amount to be paid from the fund. ... In the event the claimant and the commissioner agree upon an amount the following procedure shall be followed:
(a) A petition shall be filed by the claimant with the court in which the action is pending against the health care provider . . . for approval of the agreement between the claimant and the commissioner.
(b) The court shall set such petition for hearing as soon as the court’s calendar permits ....
(c) At such hearing the court shall approve the proposed settlement if the court finds it to be valid, just and equitable.
(d) In the event the settlement is not- approved, the procedure set forth in K.S.A. 40-3411 shall be followed.”
CNA claims the agreement between the parties did not exist until the trial court approved it. In contrast, Hudgens argues the settlement occurred during the discussion between Hudgens’ attorney and CNA’s employee on September 26, 1991. This argument is interrelated with CNA’s next contention that K.S.A. 40-3410 is a specific statute and, therefore, governs over the general statute, K.S.A. 1991 Supp. 40-2,126.
The rules of statutory construction are well settled. We have stated: “When there is a conflict between a statute dealing generally with a subject and another statute dealing specifically with a certain phase of it, the specific statute controls unless it appears the legislature intended to make the general act controlling.” State v. Wilcox, 245 Kan. 76, Syl. ¶ 1, 775 P.2d 177 (1989).
The legislature has enacted the following rules:
“In the construction of the statutes of this State the following rules shall be observed, unless the construction would be inconsistent with the manifest intent of the legislature or repugnant in the context of the statute:
“Second. Words and phrases shall be construed according to the context and the approved usage of the language, but technical words and phrases, and other words and phrases that have acquired a peculiar and appropriate meaning in law, shall be construed according to their peculiar and appropriate meanings.” K.S.A. 1991 Supp. 77-201.
Hudgens argues the provisions of K.S.A. 40-3410 apply only to the Fund and in no way conflict, change, alter, or negate the application of K.S.A. 1991 Supp. 40-2,126 to CNA. She contends CNA has mistakenly taken the position that it is somehow placed in the Fund’s shoes merely because the Fund was involved in the settlement of Hudgens’ medical malpractice suit. In the alternative, assuming there is a conflict between the two statutes, Hudgens argues K.S.A. 1991 Supp. 40-2,126 controls because it was enacted in 1989 and therefore is the latest legislative expression. See Farmers State Bank & Trust Co. of Hays v. City of Yates Center, 229 Kan. 330, 338, 624 P.2d 971 (1981).
The trial court judge agreed with Hudgens’ argument that the statutes do not conflict. He stated in his letter opinion K.S.A. 1991 Supp. 40-2,126 exempts three specific areas, but does not exempt the Fund or CNA. Although CNA paid out the agreed settlement amounts on October 1, 1991, K.S.A. 1991 Supp. 40-2,126 requires payment be made to the claimant. Because CNA paid the Fund and not Hudgens, the trial court concluded CNA violated the statute.
As an alternative argument, CNA contends K.S.A. 40-2,126 does not apply and, even if it did, its terms were not breached. CNA contends the statute does not apply because (1) there was no failure or refusal to pay; (2) there was no amount due Hudgens prior to the settlement hearing on October 25, 1991; (3) there was no contract of insurance between Hudgens and CNA which is required by the statute; and (4) until there was a written agreement and the trial court approved it the parties had not agreed upon a settlement, only a proposed settlement.
Hudgens argues K.S.A. 40-2,126 does apply and that she was a third-party beneficiary to the insurance contracts between the doctors and CNA.
CNA also argues Hudgens is estopped from bringing this action because, by signing the release of all claims and accepting the settlement check offered to her on November 19, 1991, she released CNA from this and any other claim related to the underlying medical malpractice suit. The release states in part:
“WHEREAS, I, Mary Kay Hudgens . . . heretofore made claim against Stephanie Nellis, M.D. and Joseph Miranda, M.D. and Continental Casualty Company [CNA] under Policy Number CCP3011315 heretofore issued by the said Company.
“NOW THEREFORE, IN CONSIDERATION of the Settlement Agreement attached hereto, and made a part hereof, being of lawful age, do hereby release, acquit, and forever discharge Stephanie Nellis, M.D. and Joseph Miranda, M.D. and Continental Casualty Company under Policy Number CCP 3011315, and the Wichita Clinic, the Health Care Stabilization Fund (Fund), and Ron Todd, Commissioner of Insurance and Administrator of the Fund, and all other persons, firms and corporations, their heirs, successors and assigns, who might be liable of and from any and all actions, causes of action, claims, liens, demands, damages on account of, or in any way growing out of, any and all known and unknown personal injuries resulting or to result from a certain incident which occurred on or about the 4th day of September, 1990, at or near Wichita, Kansas.”
For support, CNA cites Mohr v. State Bank of Stanley, 241 Kan. 42, 49, 734 P.2d 1071 (1987), in which we stated: “Equitable estoppel exists when a party, by its acts, representations, admissions, or silence, induced another party to believe certain facts existed upon which it detrimentally relied and acted.” Hudgens, however, argues the release does not protect CNA; instead, it applies only to the parties in the original medical malpractice suit, the two doctors, and the Wichita Clinic. Hudgens contends she did not release CNA from following K.S.A. 1991 Supp. 40-2,126.
We hold the preliminary agreement between the parties as of September 26, 1991, was subject to court approval because it involved the Fund and, therefore, was not a completed settlement until October 25, 1991. The amount owed was paid on November 19, 1991, well within the 30-day provision of K.S.A. 1991 Supp. 40-2,126. Since this is dispositive of the issue herein, we do not reach the other arguments of Hudgens.
Hudgens claims she is entitled to reasonable attorney fees because of CNA’s refusal to pay the interest that was due and owing in violation of K.S.A. 40-256.
Hudgens did not cross-appeal from the district court’s order which denied attorney fees pursuant to K.S.A. 40-256 and, thus, this issue is not before us. See Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 379, 789 P.2d 211 (1990).
The judgment of the district court is reversed, and judgment is entered for CNÁ. | [
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On April 2, 1991, respondent Michael C. Morlan, of Dodge City, Kansas, an attorney admitted to practice law in the State of Kansas, was charged in Ford County District Court with possession of cocaine, marijuana, valium, and drug paraphernalia; aggravated burglary; aggravated assault; making a terroristic threat; assault; and criminal damage to property. On July 25, 1991, amended complaints were filed in respondent’s criminal cases, charging him with attempted possession of cocaine and aggravated assault, class D felonies, to which respondent pled no contest. He was sentenced on October 11, 1991, to imprisonment for a term of 3 to 10 years. On February 27, 1992, these sentences were modified to a term of one to five years.
Respondent was suspended from the practice of law on May 26, 1992, for his failure to obtain required continuing legal education hours, Supreme Court Rule 801 et seq. (1992 Kan. Ct. R. Annot. 395).
In November 1992, respondent was released on parole from Ellsworth Correctional Facility but was reconfined in December 1992 for parole violations related to his substance abuse.
In a letter dated January 6, 1993, to the Clerk of the Appellate Courts, respondent Michael C. Morlan voluntarily surrendered his license to practice law in the State of Kansas, pursuant to Supreme Court Rule 217 (1992 Kan. Ct. R. Annot. 175).
This court, having reviewed the record of the Office of the Disciplinary Administrator,1 finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Michael C. Morlan be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Michael C. Morlan from the roll of attorneys licensed to practice law in the State of Kansas.
Effective this 22nd day of January, 1993.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein be assessed to the respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176). | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action for a divorce, custody and support of minor children, and for permanent alimony. The action was filed in the district court of Riley county. The estate of the defendant, Toepffer, consisted primarily of a substantial inheritance. By reason of defendant’s mental condition, a guardian had been appointed for both his person and estate in the probate court of Rooks county in 1906. The guardian of his person was later discharged, and in 1933 the defendant, D. A. Hindman, became guardian of the estate of defendant, Toepffer, by virtue of appointment in the probate court of Rooks county. Hindman was serving in that capacity when the instant action was filed and tried. When the divorce action was instituted in February, 1937,.and for some time prior thereto, the husband resided in the state of Missouri. Publication service was had upon him. That service was approved by the trial court. The trial court found the defendant, Toepffer, had also entered his general appearance. When the instant action was filed, D. A. Hindman, guardian of defendant’s estate, was appointed guardian ad litem. Hindman filed separate answers in his capacity as guardian of the defendant’s estate and as guardian ad litem. His answer in the latter capacity consistéd of a general denial of all averments contained in plaintiff’s petition. The defendant did not appear at the time of the trial and the guardian ad litem defended the action.
The divorce was sought on the grounds of extreme cruelty, gross neglect of duty, and habitual drunkenness. It was granted upon the ground of extreme cruelty. There were three children, but one daughter was married prior to the rendition of judgment. The court awarded plaintiff the care, custody and control of the two minor children, made an order for their support, maintenance and education, and an order for the temporary support and maintenance of the plaintiff out of funds in the hands of the guardian of defendant’s estate. The court awarded permanent alimony to the plaintiff to the extent of one-half of defendant’s property, both real and personal. The order for temporary support of the wife was made effective until she came into possession of the property awarded to her as alimony.
The appeal is by D. A. Hindman in his capacity as guardian of defendant’s estate and as guardian ad litem.
It is conceded the testimony was ample to support the charge of extreme cruelty, provided the condition of defendant’s mind was such as to enable him to know the nature and understand the consequences of his marital wrongs at the time they were committed.
In view of specific findings of fact made by the trial court touching the mental condition of the defendant, it will not be necessary to narrate the evidence in detail upon that subject. A few additional facts are necessary in order to clearly understand the legal questions presented for review.
The defendant was declared to be a person of unsound mind by the verdict of a jury and decree of the probate court of Rooks county in 1903 and again in 1906. Following the first decree, defendant became an inmate of the state hospital for the insane at Topeka, Kan. 1 He remained there several months and was discharged. The record does not disclose whether he was discharged as improved or as restored. It does not appear he was sent to the state hospital following the hearing in 1906. At that time his mother, Mary A. Toepffer, was appointed guardian of both his person and estate in the probate court of Rooks county. In the year 1927 she was discharged as guardian of his person, but continued as guardian of his estate until her death on July 7, 1933. During the same month, D. A. Hindman was appointed guardian of defendant’s estate. There was no guardian of his person after November 18,1927.
The plaintiff and Edward R. Toepffer were married February 19, 1917. The petition in this action was filed in February, 1937. The judgment was rendered October 27, 1939. Plaintiff, as stated, married the defendant in 1917. It is admitted plaintiff was informed, prior to marriage, of the facts touching the alleged mental condition of the defendant. It is not contended defendant was insane at the time of the marriage and that the marriage contract was a nullity. There was an abundance of evidence of extreme cruelty covering a long period of years, including the years immediately preceding the filing of the petition for divorce. The last finding of the probate court of Rooks county touching defendant’s mental condition was in 1906. That was thirty-one years before the petition for divorce was filed. There was conflicting testimony concerning defendant’s mental condition between 1906 and the date of the instant trial. There was testimony by both lay and expert witnesses to support the belief that defendant, at the time of the commission of the marital wrongs complained of, was of sound mind and knew the nature and consequences of his marital wrongs. A few additional facts touching his sanity may be noted. In the year 1930 defendant was charged with an attempt to rob a drugstore at Stockton, Kan. In that trial, a commission of three doctors was appointed by the court to examine his mental condition. The commission found that while his mental condition at that time was not such as to enable him to defend himself, he was not insane. In 1937 he was arrested for the offense of impersonating a federal investigator in the narcotic service in Kansas City. Defendant was a narcotic addict and by means of impersonating a federal officer in the narcotic service he obtained the desired narcotics for his own use. In the course of the trial on that charge, his mental condition was again investigated and he was found to be a sane man and capable of defending himself. Among the'specific findings of the trial court is the following:
“The court further finds that at the time of the commission of the marital wrongs complained of in plaintiff’s petition and bill of particulars, the defendant, Edward R. Toepffer, was of sound mind and knew the nature, character and consequences of the marital wrongs so committed by him; the court further finds that as of the date of the filing of the petition herein and at all times since, the said defendant, Edward R. Toepffer, has been of sound mind and that he understands the nature of this proceeding.”
There is abundant evidence to support the finding, and on review this court is not concerned with evidence which supports a contrary finding. (Settle v. Glenn, 147 Kan. 502, 78 P. 2d 57.)
The first question presented is whether an adjudication of in sanity is conclusive for all purposes until sanity has been declared restored, or whether the adjudication creates a presumption of continued insanity which may be rebutted by other competent evidence. Counsel for the respective parties concede we have no statute upon the specific subject. We have held that where the fact of insanity has been established, the presumption of insanity continues until the subject is shown to have been restored to reason. (Lantis v. Davidson, 60 Kan. 389, 56 Pac. 745; Johnson v. Gustafson, 96 Kan. 630, 152 Pac. 621.) An adjudication of insanity is conclusive evidence of insanity on the date of the rendition of the verdict. (Witt v. Heyen, 114 Kan. 869, 221 Pac. 262; Fuller v. Williams, 125 Kan. 154, 264 Pac. 77; Fourth Nat’l Bank v. Diver, 131 Kan. 113, 289 Pac. 446.) While wé have held that when insanity or mental unsoundness is shown to exist it is presumed to continué, we have just as definitely held the presumption is a disputable one, and may be rebutted by evidence of the actual condition of mind at any particular subsequent time. (State v. McMurry, 61 Kan. 87, 58 Pac. 961; Fuller v. Williams, supra, 165; Fourth Nat’l Bank v. Diver, supra, 124, 125.) These citations are not intended as being exhaustive. The rule that the presumption of continuing insanity, created by a verdict of insanity, may be rebutted by any competent evidence of a subsequent sound condition of mind at a particular time, appears to be well established. (32 C. J. 757, § 561; 758, § 562; 647, § 228.; 68 C. J. 437, § 32; 9 R. C. L. 324, § 99; 14 R. C. L. 621, § 73.) It follows a divorce may be granted where the person charged with a marital wrong was capable, at the time, of comprehending and understanding the wrong he was committing. (9 R. C. L. 375, § 166; 14 R. C. L. 620, § 71; Note, 34 L. R. A. 161,163.)
The only other question presented by D. A. Hindman, guardian of defendant’s estate, is whether the alimony judgment does not invade the jurisdiction of the probate court of Rooks county, which court has jurisdiction of the defendant Toepffer’s estate. We do not think so. The probate court had no jurisdiction of the action for divorce and alimony. The district court had exclusive jurisdiction of that action. That court was required, where the divorce was obtained by reason of the husband’s fault, to allow such alimony to the wife out of the husband’s real or personal property, or both, as it deemed just and equitable. (G. S. 1935, 60-1511.) The guardian of the defendant’s estate was a proper party defendant in the action. It was his duty to properly care for and con serve the estate of his ward in such an action. (Fourth Nat’l Bank v. Diver, supra.) He filed an answer in that capacity, as well as in his separate capacity of guardian ad litem. All parties in interest were before the court. The decree of divorce was valid and the alimony judgment became a valid claim against the estate of the defendant, Toepffer. The establishment of that claim, in a court of exclusive jurisdiction, in no wise interfered with the management and supervision of the ward’s estate by the probate court. A few illustrations may be helpful. It is definitely settled in this state that the defendant, Toepffer, if in fact insane, would have been civilly liable in damages for his torts. (Seals v. Snow, 123 Kan. 88, 254 Pac. 348.) An action to determine his liability could not, of course, be tried in the probate court. It could not be contended seriously that a judgment rendered by the district court in such an action would constitute an invasion of the jurisdiction of the probate court over the estate of the ward. Numerous actions against administrators or executors of decedent estates, over which probate courts have no jurisdiction, must be instituted and tried in district courts. The judgments therein rendered do not constitute an invasion of the jurisdiction of the probate court. They merely establish the validity or invalidity of the claim. If the claim is found to be invalid, that ends the matter. If, on the other hand, the validity of the claim is established and judgment is rendered therefor, the judgment may then be filed in the probate court for allowance and payment in accordance with the regular process of administering the ward’s estate. That procedure does not constitute an encroachment upon the jurisdiction of the probate court. The case of Page v. Van Tuyl, 150 Kan. 285, 92 P. 2d 110, is cited in support of the contention that the jurisdiction of the probate court was invaded by the alimony judgment in the instant case. That case involved the right of an heir or devisee to bring an action in the district court to partition real estate during the process of administration of the decedent’s estate in the probate court. By virtue of chapter 219, Laws 1937 (G. S. 1937 Supp., 22-735 et seq.), the administrator was entitled, to the possession of all real property of the decedent chargeable with the payment of debts if and when an order of the probate court was made, pursuant to the statute, giving the administrator such right of possession. Such an order was made in that case. It was held the statute conferred on the probate court original and exclusive, jurisdiction of the decedent’s real estate, dur ing the pendency of the administration, whenever the welfare of the estate under administration so required. To have permitted an heir or devisee to obtain a division and possession of that property by means of an action in the district court, during the pendency of the administration of the estate in a court which had original and exclusive jurisdiction over the property for the purpose of administration, would have constituted a clear invasion of the jurisdiction of the probate court. The Page case is not in point. In the oral argument before this court, counsel' for plaintiff distinguished the instant case from our recent decision in Watts v. Watts, 151 Kan. 125, 98 P. 2d 125. The case is cléarly distinguishable upon several grounds. The guardian of defendant’s estate does not contend it is in point. We need, therefore, not dwell upon it.
There is no error in the record, and from a careful examination of the facts we are convinced a fair and just conclusion was reached by the trial court. The judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This appeal is from certain orders and rulings in a condemnation proceeding.
A large part of the city of Augusta is located upon the east half of sections 22 and 27 so that the west boundary line of the city is substantially the same as the north and south center lines of these two sections. A highway runs north and south on the west lines of these sections. The levee or dike hereinafter mentioned runs north and south a few feet east of this highway. It extends around the south and east sides of the city.
The Whitewater river is west of the road and levee. The river flows in a southerly direction and by reason of its meanderings its distance from the levee varies from 500 feet to more than a half mile..
As authorized by the floodwater statutes (G. S. 1935, 12-635 and cognate sections) the city passed appropriate resolutions and proceeded to condemn the necessary land and to construct a levee for protection against floodwaters.
No question seems to be raised as to the regularity, of the proceedings. Appraisers were appointed who made and filed their report with the city clerk, and notice of hearing on the report was given as provided by the statute.
In due time the claimants herein filed their exceptions to the report of the appraisers. Upon a hearing had before the governing body of the city, the report of the appraisers was approved and the claims and demands of these claimants for damages were denied. An appeal was duly perfected to the district court.
The city filed a demurrer to the exceptions or petitions of the claimants. The court was requested to make conclusions of law in advance of the trial. The court filed findings as to the facts and conclusions of law. The demurrer of the city was overruled. This appeal followed.
The court found that the land owned by some of the claimants lies on the east side of the river, between the river and the levee, and that some of the land of the claimants lies on the west side of the river.
No part of the land of any of the claimants was taken or appropriated by the city.
The claimant Loomis in his exceptions to the report of the appraisers alleged that he was the owner of some 300 acres of fertile land lying west of the city of Augusta of the reasonable value of $42,000, exclusive of oil or mineral rights; that his land is so situated that in times of flood and high water the natural drainage is to the east and south away from his land; that the levee will change the natural fiowage of the water and precipitate the same on his land to his damage. That his land is not only valuable for agricultural purposes but has potential value for suburban acreage and residential purposes; that the proposed dike will depreciate and destroy the fair and reasonable market value of his lands and the usability thereof “for the several purposes to which they are adapted, intended, now being used, and prospectively usable.” That by reason of the facts stated, “the lands of this claimant will suffer damages and be depreciated to the extent” of $18,000 by the proposed levee and dike.
Claimant alleges that unless the statute under which the dike and levee are being constructed provides for compensating claimant for such damages, the statute is unconstitutional and void; that it violates sections 1 and 18 of the bill of rights, and also section 4, article 12 of the constitution of the state of Kansas; also the 14th amendment to the constitution of the United States.
The objections of the other claimants contained similar allegations.
The court found that the survey made by the engineer appointed by the city and the profile and maps prepared and filed by such engineer, made no mention of any of the land of the claimants. It stands admitted that there was no actual appropriation of any part of the land of any of the claimants.
The statute under which the land was condemned by the city, G. S. 1935, 12-639, provides:
“That the governing body shall appoint three disinterested householders of the said city to assess all damage to any and all property that will be injured or damaged by reason of said improvement.. . . . Said appraisers, . . . shall personally view, inspect and examine all lots and pieces of ground . . . and all other property liable to be injured or damaged by reason of said improvements being made.”
While this statute is broader in its terms than the general condemnation statutes applicable to cities (26-201 to .26-210), we do not think it can be construed to apply to prospective invasions and injuries which are purely speculative in character.
We are not dealing with a situation where part of a larger tract is taken. In such case the part taken may be a vital and integral part of the whole, and its taking may diminish the usability of the entire tract. In such case the owner is entitled to the diminution in value of the entire tract caused by the taking. (McCormick, Damages, Hornbook Series, § 130.)
It is true the claimants allege their land is potentially available for urban acreage and residential purposes. If .such property were located near the city, it might be that the land would have a special value to the owner which would not be reflected in its ordinary market value. But here the land of claimants that might be so used is more than one-half mile from Augusta — a small city — and its possibilities in that regard would appear to be remote and speculative. ' i
The trial court found that the'property of certain of the claimants lies west of the river, and as to all of the property the allegation is that the surface and fioodwaters will be diverted from the natural course onto claimants’ land. It is not alleged claimants have been deprived in any way of the ordinary, necessary and beneficial use of their property or that any'surface of fioodwaters have flooded their lands. The purpose is not to secure compensation for actual damage sustained, but to recover for anticipated or probable future injuries or detriment.
The question of the right to demand compensation for prospective injuries to land was considered by this court in United Power and Light Corp. v. Murphy, 135 Kan. 100, 9 P. 2d 658. In that case there was a proceeding to condemn a right of way for an electric transmission line across farm land. The court said:
“The court had permitted to go to the jury, with a comment which clearly indicated it deemed the evidence proper, testimony of supposed damages which might result in the future if defendant’s employees should break down fences or leave gates open, over which stock would stray or receive injury; or that in the future crops on the strip of land might be injured or damaged by defendant’s employees going in there to inspect or maintain the line; or that the land itself might be damaged'by reason of cuts made by trucks from which ruts might form, or other damages result. These are not proper elements to be taken into consideration.” (p. 107.)
The court, in holding it was error to admit this evidence, quoted from 20 C. J. 778, in which it is stated:
“ ‘In proceedings to condemn land, ... no damages are included except such as necessarily arise from a lawful taking and a proper construction and operation of the improvement. Anticipated or past negligence in the construction of the improvement is not, therefore, an element of damage. . . (p. 107.)
See Yagel v. Kansas Gas & Electric Co., 131 Kan. 267, 291 Pac. 768.
Where there is no actual appropriation of any property the owner is not entitled to claim damages for merely incidental, indirect and consequential injuries which his property may sustain by reason of a public work or construction, where the same is justified by a lawful exercise of the powers of government. (Black, Constitutional Law, Hornbook Series, 4th ed., § 190.) Thus, in Mayfield v. Board of Education, 118 Kan. 138, 233 Pac. 1024, where property was condemned for the purpose of erecting a grade-school building, it was determined that adjoining property owners whose land was not appropriated could not enjoin the condemnation proceedings until they were paid consequential damages resulting therefrom.
Under the statute the claimants were not denied any constitutional rights. (Bragg v. Weaver, 251 U. S. 57, 40 S. Ct. 62, 64 L. Ed. 135.)
We think it should be stated that these proceedings on behalf of the appellees will not estop them from bringing a subsequent action for damages for any injuries they may sustain in the future, should they have a just cause of action. In McKim v. Carre, 72 Kan. 461, 83 Pac. 1105, a party instituted proceedings under a void statute to establish a private road across certain land. In holding that such proceedings did not preclude him from afterward asserting prescriptive rights to the roadway, the court said:
. . In order for a party to be concluded by an election between two inconsistent remedies both must in fact be open to him. The pursuit of a remedy which he supposes he possesses, but which in fact has no existence, is not an election between remedies but a mistake as to what remedy he has, and will not prevent his subsequent recourse to whatever remedial right was originally available.”
See, also, 20 C. J. 21.
For the reasons stated, we think the demurrer by the city to the objections or petitions of the claimants should have been sustained.
Judgment reversed.
Wedell, J., specially concurs. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action in partition, the general question being the right to force division and partition by owners of undivided interest in the fee to real estate and undisposed-of oil, gas and mineral rights therein as against other similar owners as well as against others having rights in a part or portion of the oil, gas and minerals as grantees or assignees from both plaintiffs and other defendants.
The controversy grows out of facts none of which are in dispute. One George Dewees died October 4, 1905, leaving a will in which he gave his widow a life estate in the west half of the northwest quarter of section 32, township 20, range 7, and the northeast quar ter of section 31, township 20, range 7 in Rice county, the remainder to his six children. There is some lack of uniformity in their names as disclosed in parts of the record. We shall refer to them as Frank Dewees, Dena Dewees Fry, Lily Reames, Mattie Fant, Effie D. Richards, and Georgia I. Brown. Frank Dewees died in 1933, leaving a will under which he gave his wife, Eva Louise Dewees, a life estate, and his daughters, Virginia Dewees and Viola Haxton, the remainder. In our statement of facts we shall ignore the spouses of. those who were married at the various dates mentioned.
In March, 1936, the above-named owners executed two oil and gas leases to D. R. Lauck. One covered the above-described northeast quarter and was subsequently assigned to the defendant, C. L. Carlock. The other covered the west half of the northwest quarter described and was subsequently assigned to the defendants, C. L. Carlock and the Republic Natural Gas Company.
In November, 1936, the various owners of the fee, by a series of instruments entitled “Sale of Oil and Gas Royalty” conveyed to the various grantees therein named a one-half interest of the grantor’s royalty under the oil and gas leases and as more particularly set out later. Each of these instruments covered the entire 240 acres. There was development under the lease on the eighty acres and two producing wells were drilled. In December, 1937, all of the persons having an interest in the proceeds' arising from operations under that lease signed and delivered to the Skelly Oil Company a so-called division order providing for the division among themselves of moneys payable for oil produced' from the eighty acres.
On January 3, 1939, Dena Dewees Fry, Lily Reames and Georgia I. Brown commenced this action in which all of the other owners of the fee or of any interest in the oil, gas and minerals were made defendants, seeking an adjudication of the respective claims of all parties; that they be adjudged tenants in common, and that the real estate be partitioned, etc. The demurrer of defendants, The Southland Royalty Company, R. L. Dutton and F. G. Stodder, on the ground of misjoinder of cause of action and failure to state sufficient facts was overruled. All of the defendants answered. While all of the answers are not identical, the general effect of each was to raise the question whether partition could legally be had, whether it was equitable, etc., which matters are discussed.
At the trial, the court found that plaintiffs, Dena Dewees Fry, Lily Reames and Georgia I. Brown, were each owners of the undi vided one-sixth of the surface and the reversionary interest after the expiration of the determinable fees, and that each retained -and was the owner of 40/480 of the oil, gas and minerals in and under and that might be produced from the real estate. That defendants Effie D. Richards and Mattie Fant had like interests; that defendant Eva Louise Dewees had a like interest except that her share in the surface was 1/12 and in the reserved minerals was 20/480; that the defendants Viola Haxton and Virginia Dewees had like interests except that their shares were each 1/24 in the surface and 10/480 in the reserved minerals, and that each of the following defendants was the owner of determinable fee titles to the oil, gas and other minerals in and under and that may be produced from the real estate, each extending for fifteen years from November 5, 1936, except the South-land Royalty Company which extended fifteen years from November 7, 1936, viz., Roxa Carlock and N. C. Sevin, each 10/240; F. G. Stodder, R. L. Dutton, Southland Royalty Company, and H. T. Ritchie, each 20/240; H. T. Ritchie 40/480, and C. L. Carlock 100/480. It may here be observed there is no dispute that the shares were otherwise than as so found. The journal entry of judgment was later specifically clarified by a subsequent order to show that the oil and. gas leasehold estate and the oil and gas leases were not subject to partition. As to the other interests, commissioners were appointed to make partition, but if partition could not be made they were directed to value and appraise the real estate in forty-acre tracts and to separately value the oil, gas and other minerals in or under or that might be produced from said real estate as in separate forty-acre tracts. A motion for a new trial was denied, and the several defendants thereafter perfected their appeals to this court.
In this court four groups of appellants have filed briefs presenting contentions from varying angles, the appellees have presented their views and we also have the benefit of a brief filed by amici curiae. Time and space will not permit detailed reference to each of the various theories presented and a discussion of the many authorities cited in support. Our review of all of them leads to the following conclusions.
We shall first consider the nature of the instruments headed “Sale of Oil and Gas Royalty,” and what estates were created thereby. Without setting out copies thereof, it may be said they are in substantially the same form as the instruments set forth at length in Shaffer v. Kansas Farmers Union Royalty Co., 146 Kan. 84, 85, 69 P. 2d 4, and Hushaw v. Kansas Farmers Union Royalty Co., 149 Kan. 64, 65, 86 P. 2d 559, the holding period, however, being fifteen years. In both of the above cases, such instruments were held to be mineral deeds, and that the effect thereof was to segregate the title to the minerals from the remainder of the land. (See the cases cited in the opinions in the above-noted cases as well as Sledd v. Munsell, 149 Kan. 110, 86 P. 2d 567, and cases cited.) The instruments here involved were mineral deeds and effected a severance of the minerals from the remainder of the real estate. After the severance was so made, two separate and distinct estates existed, and ■ both were ■estates in real property (Mining Co. v. Atkinson, 85 Kan. 357, 360, 116 Pac. 499). For convenience we shall refer to the estate in the minerals as the mineral estate, and to the estate in the surface and the reversionary interest, after the mineral deeds have expired by •their terms, as the fee.
The owners of the fee are those who took under the will of the father, George Dewees, and under the will of his subsequently deceased son, Frank Dewees, and they stand in the relation one to the other of tenants in common. The owners of the mineral rights are •made up of two general classes. As to the one-half interest not conveyed, the owners are the persons last above named, and as to the other one-half they are the grantees, or subsequent assignees of those named as grantees, in the mineral deeds above mentioned. These various owners stand in relation to one another as tenants in common. ;
To sustain the judgment of the lower court appellees contend that both classes are tenants in common in the entire estate and that partition may be enforced by any one tenant in common against his cotenants, and in support they cite Rutland Savings Bank v. Norman, 125 Kan. 797, 266 Pac. 98, wherein it was held:
“Two parties, each owning an undivided one-half interest in the oil and gas on a particular tract of land, acquired by separate conveyances from the same grantor, are tenants in common, notwithstanding one of them may also be the owner of the fee-simple title to the land. (Jewell v. Gann, 100 Kan. 43, 163 Pac. 645.)” (Syl. ¶ 1.)
Appellants contend that the two estates are separate and distinct and that the tenants in common in one estate do not sustain that relation to the tenants in -common of the other estate, even though the same persons may be a part of both classes and they direct our attention to that part of the above opinion reciting:
“It is true she occupied a double capacity before redemption was made— that of owner of the land, and also owner of an undivided one-half interest in the oil and gas. Authorities are abundant to show that as owner of the land she would not be a cotenant with Grieves because their interests are entirely different, but not so far as the oil and gas interests are concerned.” (p. 799.)
The opinion in the above case must be read and interpreted in light of the facts and the nature of the action. There the owners of real estate mortgaged the same to a bank. Thereafter they con-, veyed a one-half interest in the oil and gas to one Grieves. That opinion does not so state, but the conveyance was a mineral deed (see Fairchild v. Ninnescah Oil & Gas Co., post, p. 551, 99 P. 2d 839, this day decided). The bank brought an action to foreclose, making the owners and Grieves parties defendant. .The decree of foreclosure covered all interests in the real estate, both mineral and otherwise. Later Grieves, by appropriate action, had his interest established and was given a right to redeem, and later he did so. The question for decision was the right of one cotenant to contribute to another cotenant and participate in the redemption by reason of applicable legislation. We need not pursue that feature of the case. It was held that Grieves and the grantee of the original owners were cotenants in the mineral rights and that the grantee had a right to contribute. There is nothing in that case that warrants a conclusion that because the same person may be a cotenant with certain persons of a separate and distinct estate in realty and a co-tenant with certain other persons of another separate and distinct estate in the same realty, that all of the cotenants in both estates' are cotenants with each other. Tenancy in common is the holding of an estate in land by different persons under different titles, but there must be unity of possession, and each must have the right to1 occupy the whole in common with his cotenants. (See 62 C. J. [Tenancy in Common, §§ 1, 2], p. 408; 14 Am. Jur. [Cotenancy, § 16], p. 87; 1 Bouvier’s Law Dictionary, Rawles 3d Revision, p. 1077; Cyclopedic Law Dictionary, p. 996.) In the case at bar the holders of the mineral rights had no right of possession whatever in the, surface further than was expressly granted for ingress, egress and exploration. Had the owners of the surface conveyed all of their mineral rights instead of one-half thereof, they would have had no right of possession to any p-art thereof. Under the facts all of the parties were cotenants in the estate comprised of the mineral rights, but only a part of them were cotenants in the fee. The fact there were some persons common to both classes of tenants in common did not make all of both classes tenants in common with each other in both estates. It follows that any action to partition as between the tenants in common of one estate would be separate and distinct from an action to partition the other estate. Certain of the defendants having an interest in the mineral estate only had demurred on the ground that several causes of action were improperly joined. Those demurrers should have been sustained. None of the defendants who had an interest in the fee demurred. Each of them filed answers under which no question is raised as to the right to have the fee (surface) partitioned, and to that extent the judgment is not erroneous.
The serious question is the right of a cotenant in the mineral estate to compel partition among the tenants in common.
Prior to 1868 our code of civil procedure provided that tenants in common might be compelled to make or suffer partition of the estate, but in the revision of that year the statute was changed to read as it now is:
“When the object of the action is to effect a partition of real property, the petition must describe the property and the respective interests of the owners thereof, if known.” (G. S. 1935, 60-2101.)
And see Squires v. Clark, 17 Kan. 84, 87.
In Kinkead v. Maxwell, 75 Kan. 50, 88 Pac. 523, it was held:
“As a general rule every adult owner of an undivided fee-simple estate in real property is entitled to partition, as a matter of right.” (Syl. If 1.)
This holding was approved in Beardsley v. Gas Co., 78 Kan. 571, 575, 96 Pac. 859, and Barnes v. Barnes, 140 Kan. 612, 614, 38 P. 2d 93, 96 A. L. R. 1277. In none of the above cases, however, was there any discussion of the provision of the code respecting partition that:
“The court shall have full power to make any order not inconsistent with the provisions of this article that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.” (G. S. 1935, 60-2114.)
It has been held that while an action in partition is a statutory action, the court has substantially the same powers in administering it as were exercised by chancery courts under equity practice and that the last quoted section of the statute gives the court full power to settle all questions involved on just and equitable principles. (Sarbach v. Newell, 28 Kan. 642, 30 Kan. 102, 1 Pac. 30; Scantlin v. Allison, 32 Kan. 376, 379, 4 Pac. 618; Phipps v. Phipps, 47 Kan. 328, 336, 27 Pac. 972; Hazen v. Webb, 65 Kan. 38, 68 Pac. 1096; Sawin v. Osborn, 87 Kan. 828, 126 Pac. 1074, Ann. Cas. 1914A 647; Thresher Co. v. Judd, 104 Kan. 757, 180 Pac. 763; Wright v. Simpson, 142 Kan. 507, 51 P. 2d 1; Young v. Young, 148 Kan. 876, 84 P. 2d 916.) In none of these cases, however, was partition refused or denied. Nor is any decision of this court called to our attention where partition of real estate has been denied. The appeals now before us, however, present a question not heretofore considered.
Prior to the execution of the mineral deeds, the owners of the. fee executed the two oil and gas leases, one on the eighty-acre tract, the other on the quarter section, and thereby, to a considerable extent, indicated an intention to devote the property to the exploration for and production of oil, gas and other minerals. Although these leases were originally made to the same person, at the time the action was begun the leases were held by different lessees, although one assignee was interested in both leaseholds. When the owners executed and delivered the mineral deeds, each covered both tracts and was made subject to the leases of record. Thereafter development was had on the eighty-acre tract resulting in production and thereafter all of the tenants in common of the mineral estate executed division orders setting forth the share each would receive from the oil produced. So long as production persists under these leases, there can be no independent development. Although it is no part of the record, it is stated in the briefs that since the trial a producing well has been completed on the quarter section. We do not have a situation where prior to development an attempt is being made to allocate specific tracts to specific persons. On the contrary, we have a situation showing progress under the leases to a point where production is being had, and so far as the eighty acres is concerned, an actual division thereof among those entitled. It happens that 240 acres of real estate are involved. If it be supposed the minerals underlie the ground uniformly, and partition in kind could be had, some of the holders would have five-acre tracts set off to them, others ten-acre tracts, and so on. In order for them to recover the minerals, each would have to be in position to compel the lessees to drill on their particular tracts. The lease makes no such requirement. The fact that oil, gas or other minerals were produced under either lease would not avail such an allotted owner unless the well were on the particular tract owned by him. See Carlock v. Krug, ante, p. 407, 99 P. 2d 858 (this day decided). Were there a division in kind, it can readily be seen that it of necessity would result unfairly and inequitably. .
Appellees argue, however, that if division in kind cannot be made without manifest injury, the entire mineral estate would be appraised and ordered sold and the proceeds divided. Assuming there are situations where that might be equitable and just, as in a case where partition is made before development is had, we have before us an entirely different situation. The two oil and gas leases to Lauck conveyed no interest in the land described, but merely a license to explore, and were personal property. (Burden v. Gypsy Oil Co., 141 Kan. 147, 150, 151, 40 P. 2d 463, and cases cited.) The oil that may be produced under these leases is personal property. As has been noted, as long as the present leases continue in existence, there can be no independent development, the matter of division of shares in the one-eighth share paid by the lessees to the lessors, their grantees and assigns, has been completed by the mineral deeds, and partition to that extent has been made by voluntary act of the parties. The facts as presented negative any idea there will be surrender or forfeiture of the lease, and until that occurs there is only a theoretical, as distinguished from actual, opportunity for partition of the entire mineral rights. But the mineral deeds contain language contemplating subsequent leases, viz.:
“. . . and in the event that the above-described lease for any reason becomes canceled or forfeited then and in that event an undivided 1/12 (share: varies in different instruments) of the lease interests and all future rentals and bonuses on said land for oil, gas and other mineral privileges shall be owned by the said grantee . . . together with 1/12 interest in all future events.”
The mineral deeds convey not only minerals, but. they also grant contract rights in personal property. Partition of personal property is not controlled by the provisions of the code of civil procedure, but is only to be had upon application of equitable principles, and the petition must state facts showing sufficient reason for equitable interference (Beardsley v. Gas Co., supra). We think it rather clear that under the mineral deeds, rights have been granted both in real and personal property; that there has been division of the personal property insofar as the lease on the eighty-acre tract is concerned; that there is no allegation of fact respecting the personal property rights as to the lease on the quarter section, which would warrant equitable interference at this time. These rights are inextricably bound up¡ with the pure mineral rights conveyed by the several mineral deeds. Either to attempt to divide and partition the real estate so as to set off the interest of each cotenant therein, or failing to have that done, to sell the entire mineral estate would, if otherwise unobjectionable, result in confusion and turmoil, and create a situation promoting quarrels and possible litigation.
In our opinion, if a partition of the entire mineral estate is now ordered or permitted, the result will be inequitable and unjust to the various tenants in common.
That part of the judgment of the trial court ordering partition of the fee or surface right is affirmed. The remaining part of the judgment is reversed. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for personal injuries sustained by plaintiff and damages to his car resulting from an automobile collision alleged to have been caused by defendant’s negligence. The jury answered special questions and returned a verdict for plaintiff for $3,675, on which judgment was rendered. Defendant has appealed.
From the record it appears that about five o’clock the afternoon of October 18, 1935, plaintiff was driving his Ford car south on a state highway (U. S. 169), improved with black-top surface, about twenty-five or thirty feet wide, with a shoulder on each side, level with the surface of the highway, and a ditch twenty-two inches deep on the east and one eight inches deep on the west. It had rained a little and was misty. About half a mile north of the town of Liberty plaintiff’s car collided with a Chevrolet car driven by defendant and going north. Both cars were damaged and plaintiff sustained personal injuries.
This action was filed October 16, 1937, and tried in March, 1939. There was a sharp conflict in the testimony as to movements of the cars shortly before and at the time of the collision. On this point plaintiff testified:
“I was driving south on the west side of the road, ... I discerned a car coming from the south, on the right side of the road. ... I was maybe three or four blocks from that ear when I first saw it. When I was within about two blocks of the car the car started angling from the right side, his right side, over to my side of the road. ... I saw the car continue to come over onto my side of the road. ... I was driving . . . between thirty and forty miles an hour, I started to slow my car down. ... I turned to my left. ... I turned until I was completely on his side of the road. Q. Then what happened? A. Well, I turned my car, and Mr. Pohl’s car was turned right at mine, the right front part of my car contacted the right front part of his car . . . possibly three or four feet from the east side of the highway, when the wreck took place. . . . After the accident, my car was completely off the highway headed southeast into the ditch. Mr. Pohl’s car had maybe both of his front wheels off the highway and it was headed, northeast toward my car. From looking at the cars, I could tell that the right side of both cars is what came into contact.”
On cross-examination he testified:
“I saw the Pohl car about three or four blocks away. I was driving on the west side of the road and continued to drive there. When the Pohl car was about two blocks away, it started to turn toward me, angling over on my side. I turned to the left and straightened my car out on the east side of the highway. At that time the Pohl car was fifty or seventy-five feet from me. . . . He continued along the west side for a time and then turned his car straight toward me. I presume I was about seventy-five feet away. I turned a little to the left. ... I imagine I was not over two or three feet from the east edge of the pavement when he hit me. ... It was the right front of the two automobiles that came together. I am not sure, but I believe the lights on the Pohl car were burning. One of the lights was torn off by the collision. . . . As the car approached, I noticed that it had lights on. . . . It is not true that my car was about the center of the road and hit the left, front fender of the Pohl car. ... I think the two right fenders were the ones that, came in contact. . . . My explanation. . . . was that I was more on the east side of the road than he was. . . . The black top is twenty-five or thirty feet wide, has a shoulder on each side. The ditch on the east side is rather abrupt. On the west side there is hardly any ditch at all. I have driven the road many, many times.”
Mr. Hannah, riding with plaintiff, testified:
“We were going down the highway just about the center of the road. . . . there was a Chevrolet sedan, . . . coming north on the highway. . . . We got rather close and Ben Jones pulled to the right of the highway and at the same time this other ear pulled to the left of the highway in front of Ben Jones. . . . After both cars were on the right and left side of the highway, according to the direction they were going, Ben Jones pulled to the left the same time the other car pulled to the right, and they both hit in the center of the highway. ... It was less than a block between the two cars when I first saw the Pohl car. The cars were about ten feet apart at the time the turn was made. . . After the collision . . . they were both facing due east . . . parallel . . . Ben’s right front fender hit the middle of the Chevrolet. . . . The radiator, the front of the car.”
On this point the defendant testified:
“I saw the Jones car coming over the slope, perhaps two thousand feet away. It veered over to the east, then went back over to the west, then back to the east. As it came back to the east the second time, we had our collision. I was driving thirty-five to forty miles an hour. . . . When he first came over on my side of the road, I applied the brakes and when he went over on the west side again, I released the brakes and continued on. At the time of the collision, I had by right front wheel off of the black top and was starting into the ditch on the east side to avoid the collision. 'The front end of the Jones car, that is about the center of his radiator, crushed into my fender and light on the left side. I had my dimmers on and they were burning at the time. After the collision the right light was still burning. The left light had been crushed back into the engine. ... As I approached the place of the accident, I did not, at any time, turn to the left where my car went over the center line of the pavement. There was nothing on the highway that forced Mr. Jones to drive on my side of the highway. . . . For a distance of several thousand feet, we were the only cars on the highway. ... At the time I first saw the Jones car, I was hugging pretty close to the center line. I applied my brakes, slowing down to under thirty miles an hour. . . . The collision did not occur approximately in the center of the highway. When Jones came on my side, it was impossible for me to make a turn to the left because he was coming toward me. ... I turned my ear to the left the moment I seen him coming over on my side, I was working to the outer edge.”
The testimony of defendant’s wife, who was riding with him, was to the same effect.
Mechanics, called to get defendant’s car and who examined it there and at the garage, testified the parking light on the right side was burning, the left light was all crushed in, the left front fender crumpled back, the radiator, shell and core, the front end, the left wheel suspension, the axle equipment, and the frame, were badly damaged on the left side of the front part of the car. The glass in the left front door was broken. The windshield was clean and not broken. The car had not' been injured on its right side. No mechanics testified as to what part of plaintiff’s car was damaged.
The special questions and answers pertaining to this part of the case are as follows:
“1. Prior to the collision what was the rate of speed of (a) Plaintiff ? A. Thirty to thirty-five miles per hour. (b) Defendant? A. Thirty-five to forty miles per hour.
“2. What parts of the two automobiles first came in contact with the other? A. The left-hand side of defendant’s Chevrolet and the right side of plaintiff’s Ford.
"3. Where, with reference to the center line of the ‘blacktop’ was the point of impact between the automobiles? A. About four feet east of center.
“4. When the two automobiles approached each other did plaintiff turn to the left across the center line? A. He did.
“5. If you answer question No. 4 ‘yes,’ state when such turn was made; when a collision was imminent, (a) How far the plaintiff’s automobile went across the center line? A. About four feet, (b) The distance separating the two automobiles at that time? A. Ten to fifteen feet, (c) The location of defendant’s automobile with reference to the center line at that time? A. West of center and headed northeast.
“6. When the two automobiles approached each other, did defendant’s automobile turn to the left and cross the center line? A. Yes.
“7. If you have answered the question 6 ‘yes,’ state when such turn was made? A. 150 to 200 feet, (a) How far defendant’s automobile went across the line? A. Three or four feet, (b) The distance separating the two automobiles at that time? A. Thirty to forty feet, (c) The location of plaintiff’s automobile at that time? A. West of center.
‘•‘8. Of what, if any, negligence was plaintiff guilty? A. None.
“9. Of what, if any, negligence was defendant guilty? A. Driving on wrong side of road. . . .
“11. At the time the automobiles were about seventy-five feet apart do you find that the defendant was negligent, (a) In driving on the wrong side ■of the road? A. Yes. (b) In driving a car with a dirty windshield? A. No. (c) In failing to look ahead and see plaintiff’s car? A. Yes.”
Defendant moved to set aside many of the answers returned by the jury to the special questions on the grounds they were not sustained by the evidence and were contrary to the evidence. The motion was overruled. Appellant contends this was error. The specific answers appellant contends should have been set aside are: First, the last part of the answer to No. 2. Plaintiff testified the right-hand side of the two cars came in contact; defendant testified that the front of plaintiff’s car struck the left front corner of his car. Other evidence made it clear defendant was correct as to where his car was struck, and the jury so found; but as to where plaintiff’s car was struck there was no testimony except that of plaintiff and defendant. On this conflict the jury found in accord with plaintiff’s testimony, the trial court approved the finding, and there is nothing we can do about it. Second, the answer to No. 3 is not sustained by any evidence and should have been set aside. Hannah testified the cars collided in the center of the highway. Plaintiff specifically denied that, and both he and defendant testified the collision was at the east edge of the pavement, and this was further confirmed by other evidence. Third, the answers to Nos. 4 to 7 are in part on conflicting testimony as to whether defendant at any time drove west of the center line of the pavement, and are unsupported by any evidence in finding plaintiff drove only four feet east of center line. Plaintiff testified he had his car straightened out on the east side of the pavement, and defendant testified that plaintiff’s car struck his when his car was at the east edge of the pavement with the right front wheel on the shoulder. If, as the jury found, defendant’s car was as much as three or four feet west of the center of the pavement plaintiff still had eight or ten feet of pavement west of defendant’s car on which he could have driven with safety, and there was no reason for plaintiff to drive on the east side of the pavement, at any time. Fourth, as to answers to Nos. 8 and 9, it is difficult to see harmony between them and the answers to previous questions. Fifth, as to answers to No. 11 (a), if defendant was negligent in driving his car so it was three or four feet west of the center of the pavement, when the cars were seventy-five feet apart, that alone was not the cause of the collision; and No. 11 (c) was not supported by' any evidence and was contrary to the only evidence on. the point.
In answer to question No. 10 the jury itemized the damages allowed. One of the items was medical bills, $500. The parties stipulated that one doctor bill of $40 and one hospital bill of $85 were fair and reasonable, and we understand appellant to concede these should be allowed if plaintiff is entitled to recover at all. Appellant contends there was no competent evidence to support the other items which made up the sum allowed. We concur in that view. From the record it appears plaintiff was in another automobile collision about a month after the one involved here and that he had other ailments, which may not have resulted from injuries sustained in either of the collisions. No physician testified that the additional medical treatment, much of which was two or three years after the collision involved in this case, was occasioned by. the injuries received in that collision. Plaintiff testified he took the treatments and paid or incurred certain expense. This alone was not sufficient. The court admitted this testimony upon the statement of plaintiff's counsel that later it would be connected up with this collision. That was not done.
The grounds of the motion for a new trial included a claim of. erroneous rulings of the court; that the special questions are inconsistent with each other and with the general verdict, which in, whole or in part is contrary to the evidence and given under the influence of passion and.prejudice, and that plaintiff’s counsel improperly injected an insurance issue in the trial of the case.
We think it clear the jury did not give fair consideration to the evidence, and that it was error for the court not to sustain substantially all of defendant’s motion to strike answers of the jury to special questions, and that a new trial should have been granted.
Appellant suggests an explanation of the jury’s conduct because of the following incident: Upon the voir dire examination of the jurors plaintiff’s counsel asked all of them the general question “whether or not they knew of any of the officers or agents of the Zurich General Accident and Liability Corporation.” Objections were made to the question. The court observed it was a pretty dangerous question; there was some colloquy between court and counsel for plaintiff as to the propriety of the question, and whether it was asked in good faith; whereupon the court addressed the jury:
“Gentlemen of the jury, you are instructed, not to consider the question. That company has not been sued by this plaintiff and so far as we know, or the record shows, has no interest in this lawsuit.”
Ordinarily this disposition of the matter by the trial court would be held to cure the misconduct of propounding the question on the theory the jury is presumed to perform its duty and follow the court’s instructions. Appellant concedes this, but argues that presumption cannot be indulged in here, since obviously the jury did not follow the evidence. Appellee’s counsel argues that an inquiry about insurance in a case of this character is not improper if made in good faith, and ordinarily the ruling of the trial court on the good faith of the inquiry is binding on this court. This reasoning is not helpful to appellee. The ruling of the trial court must be construed as based upon the view that the question was not propounded in good faith. We approve of that view of the trial court and hold that in a case such as this, where the insurance company is not a party and no issue on that question is raised by the pleadings, the propounding of such a question to the jury is in itself an indication of a lack of good faith.
Appellee’s notice of cross-appeal was served too late (G. S. 1937 Supp. 60-3314) and cannot be considered.
From what has been said it necessarily follows that the judgment of the court below must be reversed with directions to sustain the motion for a new trial. It is so ordered.
Thiele, J., not participating. | [
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|
The opinion of the court was delivered by .
Thiele, J.:
The principal question in this appeal is whether a claimed cause of action was barred by the statute of limitations.
This action was commenced by the filing of a petition on December 18, 1935, by Frieda Springer and Estelle M. Daemicke, alleging they were residents of Chicago, III., and that they were creditors and depositors of the Halstead Street State Bank, which was closed on March 3, 1933, and that it was later determined the capital stock of the bank was impaired and the impairment could not be made good. It was further alleged that Hugh N. Roberts was a stockholder of the bank and from October 14, 1918, to January 26, 1927, held certificate No. 359 for thirteen shares; that during that period there were unsatisfied liabilities accruing in the sum of $59,939.78 and as a consequence defendant became liable to plaintiffs in the sum of $1,300; that article XI, section 6, of the constitution of 1870' of the state of Illinois provided:
“Every stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors over and above the amount of stock by him or her held to an amount equal to his or her respective shares so held, for all its liabilities accruing while he or she remains such stockholder.”
That under the laws of Illinois the liability of stockholders was available only to creditors of banks, and any one or more of the creditors might file suit in behalf of themselves and all other creditors, and that under the laws of Illinois the statutes concerning limitation of actions did not commence to operate until the bank ceased to do business as a going concern, and that defendant's liability as determined by the laws of Illinois was $1,300 and interest, for which plaintiffs prayed judgment.
Defendant filed a motion that the petition be made more definite tand certain, and on hearing on July 25, 1936, it wa-s sustained insofar as to require plaintiffs to state when they became creditors of the bank, whether their indebtedness was represented in writing, whether the indebtedness had a fixed maturity or was payable on demand, to set out the nature of the unsatisfied liabilities accruing between October 14,1918, and January 26,1927, and to set forth the date the bank was chartered. At the same time plaintiffs moved for permission to make additional parties plaintiff and to file an amended petition, which motion was allowed.
Thereafter on September 22, 1936, the plaintiffs filed an amended petition identical with the original petition except that the names of William H. McDaniels and Christina McDaniels were added as plaintiffs and six paragraphs were added. Of these, two were to comply with the motion to make definite and certain. No. 6 alleged the general nature of the unsatisfied liabilities totaling $52,-939.78, and No. 10 alleged that the bank was chartered November 25, 1912. The other four paragraphs were new. No. 7 alleged that plaintiffs McDaniels became creditors of the bank on a savings account starting January 1, 1922, no money was checked out, and when the bank failed there was $3,493.93 on deposit in the account, dates and amounts being shown on an exhibit attached. No. 8 alleged the total deposits made prior to the date defendant transferred his stock was $1,918.81. No. 9 alleged the indebtedness was payable to plaintiffs McDaniels on demand, and No. 11 alleged:
“This case is brought on behalf of plaintiffs and of all other depositors and creditors of said bank whose claims are for debts of said bank which existed during the period when the said defendant was a stockholder.”
The amended petition contained no other or further allegation with respect to the claim of the original plaintiffs than as was set out in the original petition. Nothing further happened until September 18,1937, when, on plaintiffs’ motion, the cause was dismissed without prejudice as to the plaintiffs Springer and Daemicke.
On October 11, 1937, defendants filed a demurrer, one of the grounds of which was that the amended petition showed affirmatively that the alleged causes of action were barred by the statute of limitations. On June 30, 1939, the demurrer was sustained on the ground stated. Before discussing the correctness of that ruling, we shall complete the history of the action.
By leave of court, the plaintiffs filed their second amended petition which generally covered the same matters as the first amended petition, and in addition referred to certain litigation instituted by the original plaintiffs Springer and Daemicke, in the chancery court of Cook county, Illinois, a copy of the first amended and supplemental bill of complaint there filed being attached as an exhibit. It was further alleged that the instant action was merely ancillary to the action in Illinois, and plaintiff’s intent in filing it was set out. There was also considerable allegation with respect to methods of determining liability, etc., and reference to the decisions in Illinois with respect thereto. Without being specific, it may be said that on motion of defendant, all portions of the second amended petition pertaining to the intent of plaintiffs and to the suit in Cook county, Illinois, and the decisions of Illinois were stricken from that pleading. Thereafter defendants demurred to the second amended petition on three grounds: (1) The cause was barred by the statute of limitations. (2) No cause of action was stated. (3) The cause of action attempted to be stated in the second amended petition was identical with that attempted to be stated in the first amended petition, to which the court had sustained a demurrer, and that ruling constitued a complete bar to the cause of action attempted to be stated in the second petition. This demurrer was sustained, plaintiffs elected to stand upon their second amended petition, judgment was rendered against them, and the appeal followed.
Appellants specify as error the rulings on the motions and demurrers mentioned.
Appellants concede that the action is based upon a statutory liability; that the limitation of time in which an action must have been commenced was three years, and that it commenced to run March 4, 1933. The original petition was filed within the three-year period. The first amended petition was filed after that period had elapsed.
Although no demurrer was lodged against the original petition, it is necessary that its legal sufficiency be determined as a basis for considering the sufficiency of the second petition, especially with respect to whether the latter stated a cause of action that related back to the original petition. With respect to the first petition it is noted that the liability of defendant, if any, is predicated on the constitutional provisions that as a stockholder in a banking corporation he is liable to an amount equal to his share for all liabilities accruing while he remains a stockholder, and in order that a cause of action be stated, there must be allegations as to the defendant’s being a stockholder, of the amount of stock held, and of facts showing the liabilities which the creditor seeks to recover while the defendant remained a stockholder.
While considerable space in the briefs is devoted to whether an individual may bring the suit in his own behalf or in a representative capacity for the benefit' of himself and other creditors, a discussion thereof is not helpful in considering the original petition, for in that petition it clearly appears the two original plaintiffs sought only a recovery for their own benefit. The allegation of the petition is that defendant owned thirteen shares of stock, that during his period of ownership there were unsatisfied liabilities of $59,939.78 and as a consequence “defendant herein became liable to these plaintiffs in the sum of thirteen hundred dollars' ($1,300).” And the prayer was for a judgment in their favor for that amount. There is no allegation in the petition that the suit is in a representative capacity, nor is there any allegation from which any such conclusion can be inferred. There is an allegation that certain unsatisfied liabilities accrued while defendant was a stockholder, but there is no direct allegation nor any allegation from which it may be inferred that these liabilities persisted from January 26, 1927, when defendant sold his stock, to March 4, 1933, when the bank was closed, and that they were in existence at the latter date. The record is barren of any allegation as to the bank's condition at the time it closed, further than its capital stock had become impaired and the impairment could not be made good. While the petition did allege that unsatisfied - liabilities totaling $59,939.78 accrued while defendant held his stock, there is an utter lack of any allegation that the plaintiffs were creditors during any of that period or were the owners of any part of those unsatisfied liabilities. Lacking such allegations, there was no showing of responsibility and liability of the defendant to the plaintiffs, and consequently no cause of action was stated.
In response to the court’s ruling on the defendant’s motion to make definite and certain, and at the request of the two original plaintiffs, and after the period of limitation had expired, the first amended petition was filed. So far as the two original plaintiffs were concerned, no effort was made to comply with the order they make their petition definite and certain by stating when they became creditors and depositors of the insolvent bank — the amended petition in that respect was identical with the original petition. Neither was there any allegation the liabilities accruing while defendant owned his stock persisted at the time the bank closed. The only new allegations pertained to the claim of the newly added plaintiffs, and for the first time it was alleged any plaintiff had a claim against the bank which accrued during the time defendant was a stockholder of it and that the suit was brought in a representative capacity. Appellants contend these amendments relate back to the original petition. We do not think so.
It is quite clear that in the original petition the then plaintiffs attempted to state a cause of action for their own personal benefit, based upon a right accruing to them personally and in which no one else was interested. The cause of action stated in the second cause of action had its foundation in the claim of the newly added plaintiffs that they were creditors and depositors of the insolvent bank, and that a liability accrued in their favor at a time when defendant was a stockholder, and it was then alleged that suit was brought in a representative capacity. The newly added plaintiffs had no interest in the claim attempted to be asserted by the original plaintiffs, nor did the original plaintiffs have any interest in the liability accruing to the plaintiffs. The fact that all four were named as plaintiffs in the amended petition, and the cause was dismissed as to the original plaintiffs, was not a substitution of plaintiffs as to the cause of action attempted to be asserted in the original petition.
Appellants cite and rely on Cunningham v. Patterson, 89 Kan. 684, 132 Pac. 198, but it does not support their contention. In that case, plaintiff brought an action to recover for death by wrongful act, the original petition failing to make reference to a Missouri statute which authorized recovery, and after demurrer was sustained, an amended petition was filed setting up the missing matter. In the meantime, the statute of limitations had run and the question was whether the amended petition related back, and the affirmative was held. Space prevents extensive quotation, but this court said:
“In this state an action is deemed not to be commenced, for the purpose of interrupting the running of the statute of limitations, until a petition is filed which states a cause of action. A petition which is subject to a general demurrer is regarded, in this respect, as being no petition at all. (Railway Co. v. Bagley, 65 Kan. 188, 69 Pac. 189, 3 L. R. A., n. s., 259; Powers v. Lumber Co., 75 Kan. 687, 90 Pac. 254.) This rule is rejected in some jurisdictions, including two in which it had formerly prevailed. (Ellison v. Georgia Railroad Co., 87 Ga. 691, 13 S. E. 809; Bourdeaux v. Tucson Gas, Etc., Co., 13 Ariz. 361, 114 Pac. 547, 33 L. R. A., n. s., 196.) It cannot apply in the present case. The original petition did state a cause of action.’’ (p. 685.) (Italics ours.)
And after discussing presumptions as to the laws of Kansas and the effect of the Missouri statute, the court said further:
"It is the settled law of this jurisdiction that after the expiration of the limitation period the plaintiff may not effectively so amend a petition as to state a new cause of action. He may not, under such circumstances, convert an action based upon the common law into one based upon a statute. (A. T. & S. F. Rld. Co. v. Schroeder, 56 Kan. 731, 44 Pac. 1093.) Nor may he revive a barred claim for damages for a tort by incorporating.it in a petition filed in due time, declaring upon another tort of the same character. (Railroad Co. v. Sweet, 78 Kan. 243, 96 Pac. 657.) It will not do, however, to say that after the time has expired within which an original action could be begun, he may not make a material change in his allegation of facts, for that is the only possible object of any amendment in the statement of a cause of action that is worth making at all. In the present case we do not think the amendment changed the identity of the cause of action. It merely substituted a correct for an erroneous statement of the facts relied upon for a recovery.” (p. 687.)
The above quotation is followed by reference to many of our decisions where amendments were upheld, and attention is directed thereto. From all of them the rule may be summarized as stated in Higman v. Quindaro Township, 91 Kan. 673, 675, 139 Pac. 403, where it was said:
“Amendments to a petition which amplify a cause of action imperfectly pleaded or substitutes a correct for an erroneous statement of facts relied on for recovery ordinarily relate back to the commencement of the proceeding, but where the amendment sets forth a new cause of action the statute of limitations continues to run until the amendment is filed. (Powers v. Lumber Co., 75 Kan. 687, 90 Pac. 254; Railroad Co. v. Sweet, 78 Kan. 243, 96 Pac. 657; Cunningham v. Patterson, 89 Kan. 684, 132 Pac. 198.)” (p. 675.)
Later cases treating the general question are Harlan v. Loomis, 92 Kan. 398, 140 Pac. 845; Contracting Co. v. Railway Co., 102 Kan. 799, 808, 172 Pac. 527; Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932; Kerr v. Carson, 133 Kan. 289, 299 Pac. 929; Clark v. Wilson, 149 Kan. 660, 88 P. 2d 1070. We need not comment on decisions from other states, nor refer to other authority cited by appellants. The matter is concluded by our own decisions. The amended petition, if otherwise sufficient, stated a different cause of action than that attempted to be alleged in the original petition. When the amended petition was filed, it did not relate back as of the time the original petition was filed. It was filed after the bar of the statute of limitations had fallen; that fact appeared from the amended petition, and the trial court properly sustained the demurrer.
We direct our attention briefly to the second amended petition. In its principal aspects, its allegations were the same as in the amended petition. The new allegations went principally to plaintiff’s statements of their intent and purpose in bringing the action and to matters explanatory thereof. The effect of the original petition and the amended petition were to be determined from the allegations therein contained, and not by what the pleaders said in a later pleading. (See Kansas City v. Hart, 60 Kan. 684, 690, 57 Pac. 938.) These allegations as to intent and purpose were properly stricken. That left a petition substantially like the one to which a demurrer had been sustained. There was no error in the sustaining of the demurrer to the second amended petition on either the first or third grounds as mentioned above. The second amended petition showed the cause of action was barred by the statute of limitations, and the record showed that the question had been previously determined.
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 four promissory notes and to set aside a deed, executed by the surviving maker of the notes, alleged to have been without consideration and in fraud of plaintiff. The trial court, treating it as a demurrer, sustained defendants' motion for judgment on plaintiff’s second amended petition. Plaintiff has appealed.
The petition was filed February 23, 1939, and the second amended petition October 11,1939. The first cause of action was upon a note, which reads as follows:
“$1,000.00 January 28, 1938.
“Five years after date I promise to pay to the order of Ruth Upham, one thousand and no-100 dollars at four percent interest annually.
“Due January 28, 1943. Clyde Shattuck.
Willietta Shattuck/'’
The second and third causes of action were upon notes identical in every respect with the note copied, except that the payee in one of them was Harriett Upham and the payee in the other was Isabelle Upham, and they were endorsed by the payees, and as to them plaintiff alleged that she was a holder in due course. The fourth cause of action was upon a note, signed by Clyde Shattuck, for $100, dated April 18, 1938, due in one year after date and payable to the order of plaintiff, with interest at three percent per annum. In the petition it was alleged that on January 28, 1938, Clyde Shat-tuck and Willietta Shattuck, the makers of the three $1,000 notes, were husband and wife and owned a described 240-acre tract of land; that Willietta Shattuck owned in her own name a described 120 acres of land; that Willietta Shattuck died intestate January 4, 1939, and that Clyde Shattuck is her only heir at law; that on January 30, 1939, Clyde Shattuck conveyed, by warranty deed, to Edna Reinke, his daughter by a previous marriage, the 240-acre tract of land previously mentioned; that by this deed Clyde Shat-tuck divested himself of all real estate, that he has only a small amount of personal property, and has rendered himself insolvent; that on February 2, 1939, the defendant, Clyde Shattuck, stated to plaintiff that Willietta Shattuck, deceased, owed nothing on the notes she signed, that he had no obligation upon the notes, and that if he did have any obligation on them he had no means with which to pay either the principal or the interest; that Clyde Shat-tuck disaffirmed his obligation upon the notes; that he does not intend to meet his obligations represented by the notes, and has placed himself in a position where it is impossible for him to do so. It was alleged that because of this disaffirmance, and of his conduct in conveying the real property to his daughter, he has breached the contracts represented by such notes, and that plaintiff is entitled to judgment thereon. It further was alleged that Edna Reinke paid no consideration for the conveyance of the land to her, that she received the same with the full knowledge that Clyde Shattuck was making himself insolvent, and that the deed was made by Clyde Shattuck with the intent to hinder and defraud his creditors, par ticularly this plaintiff. The prayer was for judgment upon all of the notes, with interest, and for a decree setting aside the conveyance above mentioned, and the court was asked to enjoin defendants from conveying or encumbering the real property described in the deed pending the final determination of this action.
It is readily observed that none of the notes was due when the action was brought. None of them contained a provision accelerating the due date for any reason. The rule is well settled that “A cause of action on a negotiable instrument does not accrue until the instrument matures, and a suit commenced before that time is premature.” (8 Am. Jur. 535.) See, also, 8 C. J. 398, 399; 10 C. J. S. 1160; National Bank v. Paper Mfg. Co., 58 Kan. 207, 48 Pac. 863. Appellant does not argue seriously that this is not the general rule.
However, appellant contends that since Clyde Shattuck has denied liability on the notes and has conveyed his property, without consideration, to the extent he has rendered himself insolvent, there has been an anticipatory breach of his contract to pay the debt evidenced by the notes, the effect of which is to accelerate the due date of the notes and authorize an action upon them at once. The doctrine sought to be applied is that of an anticipatory breach of contract. This doctrine applies to bilateral executory contracts (13 C. J. 651-655; 17 C. J. S. 973, 977; Wilson v. National Refining Co., 126 Kan. 139, 266 Pac. 941) — those which embody mutual and independent conditions and obligations. “It does not apply to mere promises to pay money, or other cases of that nature where there are no mutual stipulations.” (12 Am. Jur. 973.) To the same effect, see 13 C. J. 655; 17 C. J. S. 977, and cases cited in support of those tests. No authority is cited, and our own search discloses none, which applies the doctrine to an ordinary promissory note.
The action was brought more than one year after the date of the three $1,000 notes. Appellant alleged, and now contends, that she is entitled to judgment for interest for one year upon the notes, in any event. This requires us to determine whether the notes provided for the payment of interest annually. The only time stated in the notes when anything was to be paid is five years from the date of the notes, at which time the makers promise to pay $1,000 “at four percent interest annually.” This is followed by the statement “Due January 28, 1943.” The word “annually” is an adverb, defined (Oxford English Dictionary) as meaning “in annual order or succession; yearly, every year, year by year.” As used it is open to the interpretation that the interest is to be computed yearly, or year by year; it does not necessarily mean payable yearly; and as we have noted, the only time anything is promised to be paid is at the end of five years from date, which negatives the view that the interest is .to be paid yearly. In Ramsdell v. Hulett, 50 Kan. 440, 31 Pac. 1092, the promise to pay was on or before three years after date, “with interest at eight percent per annum after date until paid.” It was held, “the interest does not become due or payable until the maturity of the note.” In Motsinger v. Miller, 59 Kan. 573, 53 Pac. 869, the promise to pay was two years after date, “and interest from date at the rate of six percent per annum, and if interest be not paid annually to become as principal and bear the same rate of interest.” It was held this language “cannot be regarded as a promise to pay interest annually.” In 8 C. J. 418 it is said:
“Where a note is made payable with interest, and nothing is said as to the time of maturity of the interest, it does not become due until the principal becomes due.” (Citing many cases, including our own.)
The general rule is that interest becomes due at the same time the principal becomes due, and not before, unless the parties, by their contract, designate some other time for the payment of interest. (33 C. J. 187, 188.) The result is that there was no interest due on these notes when the suit was brought. The action on the three $1,000 notes was premature, not only as to principal, but as to interest.
The fourth note involved in the action, for $100, was not due when the petition was filed; it was past due when the second amended petition was filed. Appellees rely upon the rule that the right of the plaintiff to maintain the action is determined as of the time when the petition is filed, and that this ordinarily is not affected by the filing later of one or more amended petitions. Appellant cites G. S. 1935, 60-764, which authorizes the court to allow the filing of supplemental pleadings “alleging facts material to the case occurring after the former petition, answer or reply.” In this case the second amended petition was not denominated a supplemental petition. But whether it is supplemental or not depends upon its contents rather than upon its name. (Gardner v. City of Leavenworth, 94 Kan. 509, syl. ¶ 4, and p. 515, 146 Pac. 1000.) In the petition first filed, while all the notes are set out as exhibits, they are treated collectively in the petition, the theory of the plaintiff being that the due date of all of the notes had been accelerated by the acts and conduct of the defendant Clyde Shattuck. In the second amended petition this note is pleaded under a separate cause of action, and it is specifically alleged that the note was past due, that it was unpaid, and that plaintiff was entitled to judgment for the face of the note, with interest. This second amended petition was filed by leave of court, hence we think that the allegations respecting this $100 note, come within the rule of the Gardner case, last cited, and is a sufficient compliance with our statute (G. S. 1935, 60-764). Erom this it follows that the judgment of the court for defendants on this cause of action was erroneous.
We need not say much about the allegations of the petition under which plaintiff sought to set aside the deed from Clyde Shattuck to his daughter, alleged to have been without consideration and to have been executed with the intention of defrauding the grantors’ creditors, and this plaintiff- in particular. Ordinarily such a suit cannot be maintained until after judgment has been obtained and an execution returned unsatisfied (Farmers State Bank v. Mitchell, 143 Kan. 286, 291, 56 P. 2d 423), and ordinarily one who gives a promissory note, payable at a future date, is not to be prevented from handling his property as he deems best. Under the state of the pleadings we find no error of the court in this respect.
The judgment of the court below is reversed insofar as it gave defendants judgment upon the fourth cause of action. In all other respects it is affirmed. | [
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The opinion of the court was delivered by
Habvey, J.:
This was an action authorized by G. S. 1935, 79-2801, et seq., to foreclose tax liens upon a large number of lots, tracts and parcels of real property. The petition was filed February 17, 1939, and the cause was set for hearing on its merits for June 20,1939. None of the defendants filed answers. On the day set for hearing several of the defendants appeared specially and moved to dismiss the action as to them. The grounds of these motions are not shown by the record before us. The motions were overruled. As to the appellants here, judgment was taken foreclosing the tax liens. Thereafter and on the same day the appellants, E. S. Nance,. Jessie Beck, W. R. Daniels, Jessie Lee Beck, H. H. Daniels and Beck & Loper, moved the court that the causes of action in which they were interested be separated from the general joinder in the case, for the reason that the properties involved were the homesteads of the movants. These motions were overruled. In this state homesteads are not exempt from taxes, nor for sale for nonpayment of taxes. (Const., art. 15, § 9; G. S. 1935, 60-3501.) The appellant, E. S. Nance, owner of certain parcels of the property, relying on chapter 326, Laws of 1939, tendered the taxes thereon for 1938 and one-half of the tax for the first year of delinquency, and offered to pay the costs apportioned to such properties, and asked the court to set aside the judgment pertaining to those properties, and that they be released from the order for' their sale. This motion was overruled. On August 10, 1939, Homer H. Daniels, assuming to act on behalf of himself and others whose rights are affected in the same manner, appearing specially, moved the court to set aside the' judgment of June 20, on the ground that the court was without jurisdiction to render the judgment; that there was no legal service of summons made upon the defendants, or any of them; that defendants, nor any of them, have entered their voluntary appearance, or waived the issuance and service of summons; that the judgment rendered is void, and that all proceedings made and had in pursuance of the judgment are void. This motion was overruled. The respective properties were sold on August 15 and succeeding days. On September 5 Homer' H. Daniels and C. J. Ramsey, assuming to act for themselves and others in like situation, filed their objections to the confirmation of the sale, on the ground that the filing of the action against the defendants was in direct violation of law, and therefore invalid; that all judgments rendered in the action were invalid, and that the purported sale was illegally and wrongfully held, and that the proceedings had during the sales were in contravention of the laws of the state. The court considered and overruled this motion October 3. At this hearing neither the movants nor their attorneys appeared, although due and legal notice of the hearing had been timely served upon their attorneys. On October 11 there was filed on behalf of such movants certain affidavits to be used on the hearing of the motion last mentioned. Thereafter plaintiff moved to strike those affidavits from the files, and this motion was heard by the court on December 23 and sustained, the court specifically finding that the affidavits were filed after the ruling of the court on the motion, and never were at any time presented to the court for consideration. On September 2 the appellants, H. H. Daniels, W. R. Daniels, Beck & Loper, and Jessie Lee Beck, moved the court to set aside the sale of one of the lots, on the ground that the highest bid had not been accepted, the allegation being that the defendants bid the sum of one dollar over and above the bid of the purchaser; and on some date not shown, the appellant, Harry A. McNally, filed a similar motion to set aside the sale of certain other lots for a similar reason. These motions were considered and overruled by the court on October 3, at which time neither the movants nor their attorneys appeared, although previously they had been notified of the date of the hearing of such motion. No evidence was offered in support of these motions. On October 9, 1939, appellants served and filed their notice of appeal from “the rulings of said court on defendants’ motion to set aside the sale in said action and all other judgments, orders, decrees and adjudications of the court heretofore rendered in said action.”
The attempted appeal from the judgment is too late. (G. S. 1939 Supp. 60-3309.) However, in two of the motions, one filed August 10 and the other September 5, the court was asked to set aside the judgment of June 20 on the ground that it was void. Such a motion can be made at any time (G. S. 1935, 60-3009), and the appeal from the overruling of those motions is in time.
Appellants contend that the entire proceeding, hence the judgment, is void because of chapter 365, Laws of 1937, in force when the action was brought, which, under some circumstances, gives an owner of property where the taxes are delinquent authority to pay the last year’s taxes, and certain of the earlier taxes, and to have an extension of time in which to pay the remainder before a tax deed issues. This is one of a series of acts passed by our legislature (Laws 1935, ch. 307; Laws 1937, ch. 365; Laws 1939, ch. 326), which are similar in import. In Pawnee County Comtm’rs v. Adams, 144 Kan. 787, 62 P. 2d 844, the court had the same contention made with respect to the act of 1935. It there was held that the act of 1935 did not nullify G. S. 1935, '79-2801, nor affect the right of the county to proceed in an action to foreclose its tax lien. The reasoning of that case we think applies here, hence neither the statute of 1937 nor of 1939 was a bar to this action.
It next is argued that the sale was for the amount of the “taxes, interest and penalties” charged to each particular tract of real property, while under the statute authorizing foreclosure, sale could be had only for the taxes. The entry of judgment first made in this case recited that the amount shown in the exhibit attached thereto included the taxes, interest and penalties. In a motion for a nunc pro tunc order the court corrected the entry of this judgment so as to speak the truth. It was shown that the amount charged against each tract of real property was the taxes only, and did not include interest and penalty; that in fact the court, at the time judgment was rendered, did not render judgment finding the amount due to include interest and penalties, and the entry of judgment of the court was corrected accordingly. Appellants complain that this nunc pro tunc order was made after the appeal was filed in this court. We think that is no objection to it, but upon a proper application and notice, which was given here, the court at any time could correct its record so as to speak the truth by a nunc pro tuno order.
On behalf of appellant Frank L. Robbins it is argued that there was no legal summons served upon him. The summons was duly issued and delivered 'to the sheriff, who made a return thereon that he served the same by leaving a copy thereof, duly certified, with endorsements thereon, at the usual place of residence of Frank L. Robbins. We are told in the brief that Robbins resides in Shawnee county, and has resided there for several years. Upon this we are asked to hold that the summons was void as to Robbins. It does not appear this question ever was raised in the court below. The return of the sheriff showing a service upon a defendant at his usual place of residence is regarded in law as a personal service (Boyse v. Grage, 141 Kan. 702, 703, 704, 42 P. 2d 942, and cases there cited), and gives the court jurisdiction. If the return is false, the remedy of the person purported to have been served is an action for damages against the sheriff, or an independent action to set aside the judgment, or to enjoin its execution. (Gibson v. Enright, 135 Kan. 181, 9 P. 2d 971.) No such action is before us.
Appellants argue that plaintiff was without authority to employ clerks to figure taxes on the property that was delinquent and subject to sale, and without authority to employ an abstracter to certify title and give description before filing the petition. We think neither of these questions is involved here. They further contend that plaintiff was without authority to employ auctioneers to sell the property. The record does not disclose that was done. We understand special deputy sheriffs cried the sale, but the final bids were taken and reported by the sheriff. Appellants complain that some of the defendants were served more than once, some who had been served personally were served by publication also, and that the notice of sale was published in two newspapers instead of but one, and that these matters increased court costs, also that the judgment of June 20 taxed a fixed amount of the costs to each tract of real property involved. There was no motion to retax costs, hence these questions are not properly before this court.
We find no error in the record of which appellants can complain. The judgment of the court below is affirmed. | [
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|
The supplemental opinion of the court was delivered by
Hoch, J.:
It was stated in the opinion filed in this case on January 27, 1940 [ante, p>. 14, 98 P. 2d 179), that in view of the conclusions reached on other questions involved, the court considered it unnecessary to pass upon the plaintiff’s contention that there is no provision in the Kansas inheritance tax law under which a tax can validly be imposed upon property passing by deed, grant or gift, “made or intended to take effect in possession or enjoyment after the death of the grantor.” We have now given consideration to the facts of the present situation as presented by a motion of the plaintiff to reopen and reconsider the case for the purpose of determining that question, and have concluded that the motion should be granted.
The question was fully briefed and argued by both parties and no rehearing was necessary. We proceed to consideration of the question.
The Kansas inheritance tax law begins (G. S. 1935, 79-1501) with what might be termed “a declaration of intention.” It declares that certain classes of property “shall be taxed as herein provided.” For convenience here, we shall separately number the classes of property, so named, as follows:
(1) Property passing by will.
(2) Property passing by intestate succession.
(3) Property passing by deed, grant or gift, “made in contemplation of death.”
(4) Property passing by deed, grant or gift, “made or intended to take effect in possession or enjoyment after the death of the grantor.”
Further on in the section appear the substantive provisions under which the tax is to be imposed, including the exemptions to be allowed, the rates to be charged and the classifications to be observed. The opening portion of these substantive provisions reads as follows:
“Distributees of estates, whether they succeed to the ownership of their respective shares bj' reason of the provisions of a will or under the law of descents and distributions, or by deed, grant or gift, made in contemplation of death, shall be classified as follows:” etc.
Following this are classifications into “Class A,” “Class B,” and “Class C,” based upon relationship (husband or wife, parents, children, etc.) of the distributees to the decedent. Exemptions are then provided for surviving wife, and for other members of “Class A” and “Class B.” Following this are the rates to be applied to the different classes, such rates being graduated on the basis of the amount of the distributee’s share. But here is the alleged defect in the statute: In the substantive portion of the section, quoted above, provision is made for taxing distributees in class (1.), class (2), and class (3), but no mention is made of distributees in class (4). In other words, the section establishes rates to be charged against distributees in class (1) who take “by will,” in class (2) who take “by intestate succession,” and in class (3) who take “by deed, grant or gift made in contemplation of death,” but is wholly silent as to the rates to be charged against class (4) who take “by deed, grant or gift made or intended to take effect in possession or enjoyment after the death of the grantor.” Did the drafter of the statute simply forget to include class (4) ? Did some clerk who was copying the text accidentally miss it? Was it “the fault of the printer?” There is no answer but conjecture.
Three principal arguments are advanced in support of the view that the omission is not fatal and should be supplied by this court.
First, that the intention of the legislature is clear, and such in tention may properly be effectuated by liberal construction of the section. Second, that distributees in class (4), who take by deed, grant or gift “made or intended to take effect in possession or enjoyment after the death of the grantor,” may fairly be said to be included within class (3) who take by deed, grant or gift “made in contemplation of death.” Third, that the long practice of the taxing body in administering the section has determined its construction. These contentions will be examined in order.
A liberal construction of statutes in order to effectuate their purpose is the established policy of this court. The function of liberal construction is called into use where there is ambiguity in the language of the statute or, in other words, where there are one or more interpretations which may fairly be made. Where clarification is required judicial interpretation is made that will give life to the statute rather than the one which will nullify it. Errors plainly clerical in character, mere inadvertences of terminology, and other similar inaccuracies or deficiencies will be disregarded or corrected where the intention of the legislature is plain and unmistakable. But the court cannot delete vital provisions or supply vital omissions in a statute. No matter what the legislature may have really intended to do, if it did not in fact do it, under any reasonable interpretation of the language used, the defect is one which the legislature alone can correct.
Let us apply these principles to the present issue. Let us assume that the commission has before it the case of a distributee who would clearly fall in class (4). It consults the statute to determine what exemptions shall be allowed, what classifications shall be made, what graduated scale shall be observed, what rates shall be applied. It finds no answer in the statute. It finds the questions answered only for classes (1), (2) and (3). Let us make another simple illustration. Suppose a statute starts out by stating that “all sales of horses, cattle, and hogs shall be taxed as herein provided,” and then follows with various classifications to be made and various rates “to be charged on sales of horses and cattle,” but is entirely silent about the classifications or the tax to be imposed on the sale of hogs. Certainly no taxing body would be justified in fixing the same classifications and the same rates for hogs which the legislature had fixed for horses and cattle simply because it thinks that the legislature would have done that if it had enacted tax provisions relating to hogs.
Furthermore, by what authority could this court say that if the legislature had carried out an intention to impose inheritance taxes on distributees in class (4) it would necessarily have adopted the same exemptions, the same graduated scale and the same rates as it provided for classes (1), (2) and (3)? It is urged in answer to that question that such a course would be the only reasonable thing the legislature could have done. But what one person considers reasonable another may not so consider. Plausible argument may well be advanced for applying exemptions and rates to distributees in class (4) different from those in classes (1), (2) and (3). Neither the commission nor this court has authority to determine what the legislature would have considered reasonable on so important a matter.
All decisions of this court cited by the defendant on the question of liberal interpretation have been examined, and none of them found inconsistent with the views just expressed. Perhaps the strongest case cited is that of Landrum v. Flannigan, 60 Kan. 436, 56 Pac. 753. In that case the court supplied the word “employer” in one part of the statute, but a close analysis of the statute makes the case clearly distinguishable from the one at bar. The statute involved in that case reads as follows:
“Every wife, child, parent, guardian, or employer, or other person, who shall be injured in person or property or means of support by any intoxicated person, or in consequence of intoxication, habitual or otherwise, of any person, such wife, child, parent, or guardian shall have a right of action in his or her own name. . . .”
The court supplied the word “employer” after the word “guardian” near the end of the language above quoted. But it by no means appears that an employer would not have had a right of action even though the word had not been supplied and that therefore the interpretation of the court did not in fact change anything. It will be noted that the right of action was not limited to that of a wife against her husband, or of a child against its parents, or of the parents against the child, or of a guardian against the ward, or of an employer against the employee. The right of action was given to any person who might be injured by an intoxicated person, regardless of classification. The employer might be a wife, might be a parent, might be a guardian, and in any event every employer would be a “child,” in the generic sense of the word.
Courts frequently face the temptation to usurp legislative func tions by writing into statutes something which the legislature itself did not put in them. But, however laudable the end sought may seem to be, the importance of observing the limitations of the judicial function transcends all immediate and temporary consideration. Vital defects in the statute are for the legislature to correct.
The second argument is that distributees in class (4) who take by deed, grant or gift, “made or intended to take effect in possession or enjoyment after the death of the grantor,” may fairly and reasonably be said to be included within class (3) who take by deed, grant or gift, “made in contemplation of death,” and that by so including class (4) in class (3) the omission in the statute may be corrected by judicial construction. We cannot agree with that argument. Classes (3) and (4) are essentially distinct and separate classes. Deeds, grants or gifts made “in contemplation of death” (class 3) have a clear and well-established legal meaning (26 R. C. L. 225). The donees in such cases enter at once into the right of enj oyment. Those in class (4) do not. The words “in contemplation of death” have generally been used in inheritance tax statutes in order to reach gifts made when death is imminent for the purpose of evading the tax, though the intent to evade is not an essential factor. It is essential, however, to class (3) that present transfer be made and that death be imminent. This definite classification is common both to the federal and state laws. Its essential nature is recognized in our own statute by the provision at the end of section 79-1501, which reads:
“Property shall be deemed to have been transferred by grant or gift in contemplation of death under this act when such grant or gift shall have been executed within ninety days prior to the death of the grantor or donor.”
Likewise, the characteristics of class (4) are well defined. Gifts made or intended “to take effect in possession or enjoyment after the death of the grantor” are not gifts inter vivos and the imminence of death is not a factor; nor is there any time factor as in the case of class (3). If the gift falls within class (4) a tax would apply no matter how many years may pass until the death of the grantor. We cannot arbitrarily disregard these plain and vital distinctions between the two classes and say that the statutory guide set up for taxing distributees under class (3) shall also apply to those in class (4).
Lastly, it is urged that the omission in the statute has been cured by a long-established practice of the administrative body in supply ing the omission. We cannot agree to that conclusion. When a statute is ambiguous and open to more than one interpretation, a long-established construction by an administrative body carries great, if not a controlling weight. But no controlling weight can be given to administrative construction of a statute unless the meaning is really doubtful, and courts are neither bound to follow nor justified in following a construction that is clearly erroneous. (59 C. J. 1030.) An administrative body may interpret an uncertain statute, but it cannot make new law.
It may also be noted here that while those claiming tax exemption must show that they come clearly within the statute, the general rule is that if a taxing statute be of doubtful intent it should be construed favorably to the taxpayer. (McFeely v. Commissioner, 296 U. S. 102, 80 L. Ed. 83; Crooks v. Harrelson, 282 U. S. 55, 61, 75 L. Ed. 156, 59 C. J. 1131.)
We are aware that statements may be found in decisions of this court, as for instance in the case of State, ex rel., v. Cline, 91 Kan. 416, 137 Pac. 932, wherein the constitutionality of the inheritance tax law was upheld, which refer to the law as imposing a tax upon succession under all four classes enumerated in the early part of the statute. Also, that in casual reference, such as in State v. Mollier, 96 Kan. 514, 152 Pac. 771, no distinction apparently is made between succession to property in class (3) and in class (4), supra. But in those cases the question here presented was not involved and the record gives no indication that the hiatus in the taxing portions of the statute was called to the attention of the court or was at all considered by the court. Such cases accordingly have no persuasion in the instant determination.
We conclude that there is no provision in the Kansas inheritance tax law to support the tax imposed in the instant case. In other words, that there is a vital omission in the statute which precludes lawful imposition of an inheritance tax upon property passing by deed, grant, or gift, made or intended to ta.ke effect in possession or enjoyment after the death of the grantor. Such vital omission can only be supplied by the legislature.
Thiele, J., not participating. | [
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The opinion of the court was delivered by
Hoch, J.:
The question here presented is whether, under the facts and circumstances hereinafter stated, Kansas has the power to impose an inheritance tax upon a trust estate consisting mainly of “intangibles” and held for many years by a trustee in another state. Plaintiffs are administrators of the estate of the decedent, who had created the trust about eleven years prior to her death. The case is here in an original action in mandamus brought to compel the defendant, the state tax commission, to cancel an inheritance tax which it had assessed against the trust estate. The action was instituted by amicable agreement between the parties in order to secure determination of the questions of law involved.
Flora B. Russell was for many years and until her death on October 26, 1936, a resident of Lawrence, Kan. On January 21, 1925, she executed a trust agreement conveying to a bank in Kansas City, Mo., as trustee, assets valued at $100,000 and consisting of $66,000 in cash and $34,000 in first-mortgage notes. The trustee was given exclusive right of possession, management and control, including the power to invest, reinvest, sell or exchange, in its absolute discretion, any part or all of the trust property; the trust instrument was irrevocable, Flora B. Russell retaining no right, at any time, either to revoke, to change beneficiaries, to amend or modify, by will or otherwise, or to interfere in any way in the trustee’s right of possession, management or control; the net income was to go to the trustor during her lifetime; after her death the income was to be shared equally for five years by her two sons, Charles B. Russell and Lloyd E. Russell, and at the end of five years the principal to go in equal parts'to the two sons if living; if Charles B. Russell should die before the end of the five-year period his share of the income was to go to the trustor’s granddaughter, Jessie Lolita Russell, until she reached the age of thirty years, when she was to receive her share of the principal; if Lloyd E. Russell died before the end of the five-year period the Wesley Foundation of Kansas University was to receive his share of the income for a period of ten years after the trustor’s death, and thereupon to receive his share of the principal.
From 1925, when the trust was created, until the trustor’s death in 1936 the assets have been, without interruption, in the actual, physical possession of the trustee, in the state of Missouri. All transactions relating to the trust have taken place in Missouri, and all records kept in the Missouri office of the trustee; all investments have been made, and all income derived within the state of Missouri ; federal and state income taxes have been paid by the trustee exclusively in Missouri, and at no time has the trustor, trustee, or any beneficiary under the trust been assessed an ad valorem or other tax in Kansas upon the trust property. The trustor has, of course, paid income taxes in Kansas upon her income from such property.
At no time during her lifetime did Flora B. Russell attempt to change the beneficiaries, to interfere in the trustee’s management or control, or to revoke or modify the trust agreement, by will or otherwise.
At the death of Flora B. Russell the assets of the trust were valued at $104,007.39 and were held by the Union National Bank of Kansas City, Mo., as trustee in succession to the trustee first named.
Flora B. Russell died possessed of considerable property. After listing such property in the inventory and appraisal filed with the commission, the administrators of her estate recited fully the facts concerning the trust estate. In doing so, in order to make full disclosure of all facts in which the commission might be interested, they asserted their claim that the trust estate was not taxable under the law. The steps thereafter taken need not be recited in detail. Suffice it to say, that on November 16,1938, the commission assessed an inheritance tax of $4,762.62 upon the whole estate, including the trust assets. The inheritance tax here involved is solely the assessment upon the trust property, being $2,282.76.
The Kansas inheritance tax law (G. S. 1935, 79-1501) attempts to impose an inheritance tax upon “All property, corporeal or incorporeal, and any interest therein, within the jurisdiction of the state, whether belonging to the inhabitants of the state or not” which shall pass in any one of the following three ways: (a) By will or intestate succession. (6) By deed, grant or gift “made in contemplation of death.” (c) By deed, grant or gift “made or intended to take effect in possession or enjoyment after the death of the grantor.” Bona fide purchases for full consideration are, of course, excepted.
In the instant case assessment was made under classification (c), supra. In other words, the trust agreement was held to constitute “a deed, grant or gift made or intended to take effect in possession or enjoyment after the death of the grantor.”
The questions of law presented for review are:
1. Did the trust agreement constitute “a deed, grant or gift made or intended to take effect in possession or enjoyment after the death of the grantor?”
2. Subsequent to the trust indenture, or at the death of the trustor, did the trust assets in any way constitute “property within the jurisdiction” of Kansas upon which the right to assess the tax can be maintained?
3. Is there any provision in the inheritance tax law, section 79-1501, G. S. 1935, under which an inheritance tax can be assessed upon the trust involved in this case? Stated negatively, is there a vital omission in the statute which precludes lawful imposition of an inheritance tax upon such a trust?
4. Under the facts in this case would the imposition of the tax constitute the taking of property of the defendant without due process of law and in violation of the fifth and fourteenth amendments to the constitution of the United States.
All of these questions must be considered in the light of the essential facts and characteristics of the particular trust agreement here involved. Accordingly, let us, at the outset, summarize the material facts.
The salient characteristics of the trust instrument were:
(a) Full legal title vested in the Missouri trustee.
(b) Exclusive control and management vested in trustee.
(c) Net income to be paid to trustor during her lifetime.
(d) The conveyance irrevocable.
(e) No right retained by trustor to amend, modify, or change beneficiaries, either during lifetime, by will or otherwise.
(/) After death the net income and ultimately the assets to go to named beneficiaries on certain contingencies.
So much for the terms of the instrument itself. At no time was there any attempt made by trustor or trustee to depart from any of the terms, or was any claim made inconsistent therewith.
To the terms of the instrument should be added these facts:
The office of the trustee has been maintained and all records relating to the trust kept exclusively in Missouri.
All transactions relating to the trust, including investment and reinvestment over the eleven-year period, took place in Missouri.
All trust property and investments and all evidence thereof have been at all times within the state of Missouri.
All earnings have been made exclusively within Missouri.
Ad valorem and income taxes, both state and federal, have been assessed and paid exclusively in Missouri.
We proceed to the issues of the case.
1. Did the trust agreement constitute “A deed, grant or gift made or intended to- take effect in possession or enjoyment after the death of the grantor?”
Plaintiff contends that the Russell trust does not constitute a gift or grant “to take effect in possession or enjoyment after the death of the grantor.” It may seem surprising that such a contention should seriously be urged in view of the plain language of the instrument. But attention is called by the plaintiff to various decisions of federal courts involving similar language which are said to support the contention. Those cases hold generally that where the title had passed entirely from the grantor when the trust deed was executed the subsequent death of the grantor becomes merely the incidence of possession and enjoyment by the beneficiary, and that the federal estate tax could not be imposed under the then-existing language of the federal law. Such a holding is called the “federal rule” by counsel, as distinguished from the rule of interpretation generally followed by the state courts. Although urging that the “federal rule” is the sounder and better one, plaintiff concedes that if decisions of the state courts are followed the instrument here considered does constitute “a gift or grant to take effect in possession or enjoyment at the death of the grantor.”
Let us CQnsider whether there is in fact an irreconcilable conflict between the federal and the state decisions on this question. It must be remembered, at the outset, that the federal cases cited deal with the federal “estate tax,” while the state cases deal with “inheritance taxes” similar to the Kansas statute. Though some courts have loosely used the two terms interchangeably, the fundamental difference betwéen the two has been pointed out by the textbook writers, and many times, in well-considered judicial opinions. While the term “inheritance tax” has sometimes been used in a general sense to cover all “death taxes,” a more restricted meaning is now generally accepted. An “estate tax” such as the federal law imposes is a tax upon the right to transmit or transfer property at death. It is levied upon the body of the estate before distribution. It does not at all involve, primarily, the right of the distributee to receive the property. An “inheritance tax,” on the other hand, is not a tax upon the right to transmit or transfer, but is a succession tax, a tax upon the right of the distributee to receive the property. (26 R. C. L. 195, 196; 61 C. J. 1595, 1596; Gleason & Otis on Inheritance Taxation, 4th ed. p. 4; Reinecke v. Trust Co., 278 U. S. 339, 73 L. Ed. 410, 49 S. Ct. Rep. 123; In re Estate of Rising, 186 Minn. 56, 242 N. W. 459; Knowlton v. Moore, 178 U. S. 41, 20 S. Ct. Rep. 747; Silberman v. Blodgett, 105 Conn. 192, 134 Atl. 778; Trust Co. v. State, 110 Kan. 153, 202 Pac. 853.) The two rights are distinct and separate. Neither is a natural right, but is a right conferred upon the individual by the state as an act of grace. The power which so confers the right may levy a tax upon its exercise.
With this distinction in mind between the two types of taxes, let us examine the so-called federal rule. The leading case relied upon by the plaintiff is May v. Heiner, 281 U. S. 238, 74 L. Ed. 826, 50 S. Ct. Rep. 308, decided by the United States, supreme court April 14, 1930 (following Reinecke v. Trust Co., supra, decided January 2, 1929). In that case the trust instrument was somewhat similar to the instant one. The husband of the trustor was to receive the net income during his life and after his death it was 'to go to the trustor during her lifetime, and after her death the trust, assets were to be divided among her four children. The cpurt was considering the validity of an estate tax imposed upon the trust under the federal revenue act of 1918. Section 401 of the federal act assesses a tax “upon the transfer of the net estate of every decedent dying after the passage of this act.” The court was determining whether in the case before it any property was transferred from the trustor to the living at the time of her death. The holding was that there was not; that as far as the trustor was concerned the property passed entirely from her at the time the trust instrument was executed, and that therefore the federal tax law was inapplicable. Quoting with approval from Reinecke v. Trust Co., supra, the court said:
“ ‘In the light of the general purpose of the statute and the language of •§ 401 explicitly imposing the tax on net estates of decedents we think it at least doubtful whether the trusts or interests in a trust intended to be reached by the phrase in §402 (c), “to take effect in possession or enjoyment at. or after his death,” include any others than those passing from the possession enjoyment or control of the donor at his death and so taxable as transfers at death under That doubt must be resolved in favor of the taxpayer.’” (p. 244.) (Italics ours.)
“ 'One may freely give his property to another by absolute gift without subjecting himself or his estate' to a tax, but we are asked to say that this statute means that he may not make a gift inter vivos, equally absolute and complete, without subjecting it to a tax if the gift takes the form of a life estate in one with remainder over to another at or after the donor’s death. It would require plain and compelling language to justify so incongruous a result and we think it is wanting in the present statute.’ ” (p. 244.) (Italics ours.)
But plaintiff argues that the distinction which is drawn between estate and inheritance taxes has no significance in interpreting the holding of May v. Heiner and of other decisions of federal courts which have followed it. Plaintiff says that the determining factor in May v. Heiner was “the type and completeness of the gift of the corpus” at the time the trust instrument was executed, and that on that basis there is no controlling distinction to be drawn between the two types of taxes. In other words, if the gift is complete by the terms of the trust deed then there is no gift “to take effect in possession or enjoyment at the death of the grantor” regardless of whether the tax be an estate tax or an inheritance tax. The argument is not persuasive. Assuming for the moment, with the plaintiff, that the federal rule is based upon the “completeness of the gift of the corpus,” we think the distinction between the two kinds of taxes still clearly retains significance. An estate tax being upon the right to transmit — or, as the federal act calls it, a “charge upon the transfer” of the estate — a conclusion that the law does not apply because no property was transferred from the settlor at his death, such transfer having already taken effect completely when the trust was created, is readily understandable.
But does this reasoning apply equally to an inheritance tax? We think not. If the gift was complete as far as the grantor was concerned when the trust was created, it may well be argued that an estate tax, being a tax upon the transfer from the grantor, may not be imposed at his death since no such transfer takes place at that time. But in the case of an inheritance tax the completeness of such previous transfer does not alter the fact that the right to receive does not accrue to the beneficiary until the death of the grantor.
The cases cited and others upon this point have been examined, but an analysis of them would unduly lengthen this opinion and add little to the discussion. We conclude that the Russell trust agreement clearly constituted “a grant or gift made or intended to take effect in possession or enjoyment at the death of the grantor.”
2. Subsequent to the trust indenture, or at the death of the trustor, did the trust assets in any way constitute “property within the jurisdiction” of Kansas upon which the right to assess the tax can be maintained?
We are here presented with the question of taxation situs of intangible property and with the power of the domiciliary state of the creator or beneficiaries of a trust, to impose an inheritance tax upon such intangibles held by the trustee in another state. We have found pursuit of the subject a most interesting one. In able briefs both sides have cited many authorities. The cases cited have led ever on to others. One learned judge, of quantitative mood, fortifies his views with such an impressive array of citations that four solid pages of the embalming volume are required to record them. In such a judicial labyrinth we might here wander long, but with doubtful profit. One fact, however, emerges early and clearly from the decisions, and that is that the question cannot be settled by ancient maxims. Decisions of recent years have greatly modified earlier concepts. This is notably true with regard to the maxim mobilia sequuntur personam, to which reference will later be made. We have found, therefore, that on the narrowed issue before us there would be little, if any, value in a critical analysis of many of the older cases or in quoting from textbook conclusions that have not been brought down to very recent date. It will be more profitable, we think, inasmuch as the question involves the limitations of power imposed upon the states by the federal constitution, to note the judicial trend indicated by leading cases, and particularly to state the applicable principles of law as they have been developed and applied by the more recent decisions of the United States supreme court.
The foundation doctrine, long established, is this: No state can lawfully tax any property which is not within its jurisdiction. That generalization does not, of course, in any way dispose of the problem before us, since the practical question remains as to what is “property” within the meaning of the doctrine. Nevertheless, this ■fundamental principle must not be forgotten nor its importance minimized.
It is elementary law that the doctrine applies without reservation to real property. The state of the owner’s domicile has no taxing power whatever over the resident’s land in another state. .
The doctrine has been unequivocally extended to cover tangible personal property situated in another state. This marks a clear departure from the ancient rule of mobilia sequunter personam. Such a departure was made almost inevitable by the great economic changes that came in the modern world. In ancient days the average individual possessed few chattels and these were of comparatively simple character. When he moved on to other climes he customarily took his “movables” with him. Accordingly, a presumption, hardening into a conclusion of law, arose that in all cases he had actually done so. Hence, when the sovereign had jurisdiction of the individual he had jurisdiction of the “mobilia” wherever located. But time marched on, and simplicity of life gave way to complexity. Mobilia became of infinite variety and character. Frequently they have become so localized that it would be fantastic for the law to treat them as having wholly followed the owner to another state where he resides. In such cases courts have refused to so apply the old mobilia maxim as to rob the state where they are actually held of the right to tax them. But being so taxed in the state where they are actually held, may they also be taxed — and to what extent — by another state where a person holding some interest in them may reside? In other words, to use Chief Justice Hughes' trenchant phrase, may they also be “attributable to the jurisdiction” of the state of the domicile, for taxation purposes? The importance of that question has grown with the expansion in the functions of government and attendant increase in the tax burden and with the multiplying interrelationships between states and their citizens. The more recent decisions of the United States supreme court clearly disclose an appreciation of the necessity, in the light of these economic changes, of defining limitations upon the taxing power of the domiciliary state.
In the now leading case of Frick v. Pennsylvania, 268 U. S. 473, 69 L. Ed. 1058, 45 S. Ct. Rep. 603, the court said:
. . as respects tangible personal property having an actual situs in a particular state, the power to subject it to state taxation rests exclusively in that state, regardless of the domicile of the ovmer.” (p. 489.) (Italics ours.)
Again, other decisions show that — ■
“. . . the power to regulate the transmission, administration and distribution of tangible personal property on the death of the owner rests with the state of its situs, and that the laws of other states have no bearing save as that state expressly or tacitly adopts them. . . .” (p. 491.)
Again,
“A state cannot, in computing the amount of succession tax upon the estate of one of its residents, take into consideration the value of tangible personal property belonging to him, but having an actual situs in another state.” (69 L. Ed. 1059 — Headnote 6. See Syl. ¶ 4 in Official Report.) (Italics ours.)
Moreover, it was made clear in the opinion that in determining the question of whether the domiciliary state has power to tax, it makes no difference whether the tax at issue is an ad valorem tax or an estate or inheritance tax. In either case the “property” sought to be taxed must be within the jurisdiction of'the state seeking to tax it. Referring to the tax at issue in the case, the court said:
“The tax which it imposes is not a property tax, but one laid on the transfer of property on the death of the owner. This distinction is stressed by counsel for the state. But to impose either tax, the state must have jurisdiction over the thing that is taxed; and to impose either without such jurisdiction is mere extortion, and in contravention of due process of law.” (p. 492.)
Money has been definitely classed as tangible personal property (Blodgett v. Silberman, 277 U. S. 1, 72 L. Ed. 749, 48 S. Ct. Rep. 410), and is subject to the holding in Frick v. Pennsylvania, supra. Accordingly, no state can assess a tax, either ad valorem or inheritance, on money not within its jurisdiction. In the instant case money constituted about two-thirds of the assets when the trust was created; only a small part, however, of the assets was in cash at the death of the trustor. At least as to the money which was part of the trust estate at the grantor’s death we have no hesitancy in saying that it is outside of the jurisdiction of Kansas for any taxing purpose.
We arrive now to the more difficult question of the intangible personal property — the notes, bonds and mortgages.
Counsel on both sides have cited many cases in support of their position. For reasons heretofore stated the older cases must be viewed in the light of more recent decisions. If any semblance of consistency and order is to be deduced from the decisions which now point to the present state of the law on the subject, it is necessary, at the outset, to distinguish between two types of cases. Otherwise, the task of harmonizing a seeming conflict is rather hopeless. For convenience, we will here call them class A and class B. Class A consists of those cases wherein the trustee is little more than a legal titleholder who acts as custodian, bookkeeper and collector of income from specific securities. Class B consists of those cases wherein the trustee also exercises power of control and management, of investment and reinvestment, and as a result of such transactions the intangibles have become localized or tied into the economic life of ■the state where the trustee operates.
The cases principally relied upon by the defendant in this action fall within class A, and not in class B.
Class B cases have been often recognized both by state and federal courts. Innumerable cases might be cited which hold that localization of the intangibles in the state of the trustee by management and control, by investment and reinvestment, have given them a legal situs there. Where they are employed in a particular enterprise this has sometimes been referred to as a “business situs.” Such localization or integration is particularly held to have taken place where the management operations of the trustee have taken place over a period of years. (Many cases will be found cited in 76 A. L. R. 806-829. In some there was investment of securities in a particular business operation; in others, not.)
This principle of localization was recognized and applied by this court in the case of Buck v. Miami County, 103 Kan. 270, 173 Pac. 344. A Kansas resident had sold a business in Wyoming and placed the proceeds in the hands of a Missouri investment company with full power to invest in notes and mortgages, to record, to release, to collect and to reinvest, the profits only being remitted to the principal. . It was held that such securities being thus dealt with for a number of years had acquired a business situs in Missouri for purposes of taxation and were not taxable in Kanas. In the opinion will be found a brief but illuminating discussion. Numerous citations of authority are given, including the prior Kansas case of Johnson County v. Hewitt, 76 Kan. 816, 93 Pac. 181. The court said:
“Under these authorities, it is beyond question that if the plaintiff lived in Kansas City, Mo., and dealt with the fund in question in the same way through an agency at Paola his securities would be taxable here. The controlling principle is no less plain because the geography of the situation is reversed. . . . This course of dealing for a number of years has given such securities a business situs for the purposes of taxation in the state where the agency is located.” (p. 273.)
It is said, however, by defendant that Buck v. Miami County, supra, involved an ad valorem tax and therefore presents a different question than that which is presented in the case of an inheritance tax. As heretofore noted, however, it makes no difference whether it be a property tax or an inheritance tax when determining the narrow question of whether the “property” against which the tax is sought to be levied is properly “attributable to jurisdiction” of the state which seeks to assess the tax.
A case falling within class B was considered by the United States supreme court in the case of Safe Deposit & T. Co. v. Virginia, 280 U. S. 83, 74 L. Ed. 180, 50 S. Ct. Rep. 59, which has become perhaps the leading case on the point at issue. A resident of Virginia had conveyed securities to a Maryland trustee with power to change the investments, to collect the income, etc., and over a period of years the securities were so controlled and managed in Maryland. The court held that the securities had no legal situs for taxation purposes in Virginia, the domicile of the trustor. Among other things the court said:
“Ordinarily this court recognizes that the fiction of mobilia sequuntur personam may be applied in order to determine the situs of intangible personal property for taxation. (Blodgett v. Silberman, 277 U. S. 1.) But the general rule must yield to established fact of legal ownership, actual presence and control elsewhere and ought not to be applied if so to do would result in inescapable and patent injustice whether through double taxation or otherwise. . . .
“Intangible personal property may acquire a taxable situs where permanently located, employed and protected. . . .
“Here we must decide whether intangibles — stocks, bonds — in the hands of the holder of the legal title with definite taxable situs at its residence, not subject to change by the equitable owner, may be taxed at the latter’s domicile in another state. We think not. The reasons which led this court in Union Refrig. Transit Co. v. Kentucky, 199 U. S. 194, and Frick v. Pennsylvania, 268 U. S. 473, to deny application of the maxim mobilia sequuntur personam to tangibles apply to the intangibles in appellant’s possession. They have acquired a situs separate from that of the beneficial owners. The adoption of a contrary rule would 'involve possibilities of an extremely serious character’ by permitting double taxation, both unjust and oppressive. And the fiction of mobilia sequuntur personam ‘was intended for convenience, and not to be controlling where justice does not demand it.’” (pp. 92, 93.)
Numerous cases are therein cited in support of the opinion.
The defendants, however, cite numerous cases which they say tend to establish a contrary doctrine and hold that the old maxim of mobilia sequuntur personam still applies fully in the case of intangibles. The principal case relied upon is Blodgett v. Guaranty Trust Co., 114 Conn. 207, 158 Atl. 245, which went to the United States supreme court and is found in 287 U. S. 509, 77 L. Ed. 463. The facts in that case, however, disclose that it falls within class A, supra, and is therefore distinguishable from the case at bar. In the Blodgett case the trustor had conveyed to a trustee in another state certain specific securities to be held by the trustee, the income to go to the trustor during her lifetime and to her sons upon her death. The trustee was nothing more than a custodian or agent for collection of earnings on particular securities. We find nothing in the record to indicate that he had any power to invest or reinvest or any management or control. No investments were made by the trustee and no operations conducted giving to the corpus of the trust a local situs, as in the case of Safe Deposit & Trust Co., supra, and which exist in the instant case. Application of the mobilia doctrine in a case where no taxation situs had accrued in the state where the trustee resided, is not inconsistent with limitation of the doctrine in cases where taxation situs has accrued.
What “property” then may still be said to remain “within the jurisdiction” of the state of the trustor’s domicile, when the title is held in another state by a trustee who has there exercised over a’ period of years exclusive powers of control, management, investment and reinvestment? That question was considered by the United States supreme court in two recent cases. Because of the narrowed issue presented the decisions were awaited with more than ordinary interest by taxing officials and tax experts throughout the country. One was the case of Curry v. McCanless, 307 U. S. 357, 59 Sup. Ct. 900, 83 L. Ed. 865, and the other Graves v. Elliott (called the Brown case in the lower court), 307 U. S. 383, 83 L. Ed. 880, 59 Sup. Ct. 913. Both decisions were announced on May 29, 1939. In both cases the trustees holding title had exercised, over a period of years, exclusive powers of management, investment and reinvestment. In both cases, as in the case at bar, beneficiaries under the trust were resident of the same state as the trustor. In both cases the issue was whether there was “property” within the state of the trustor’s domicile sufficient to give that state constitutional power to impose an inheritance tax upon the trust assets, held by the trustee in another state.
We examine first the case of Curry v. McCanless. A Tennessee resident transferred one hundred or more bonds and other property to an Alabama trustee to be there held and managed. The income from part of the trust was to go to the trustor during her lifetime and other income to named beneficiaries, also residents of Tennessee. The trustor reserved the right to dispose of all the trust property by will, and by will did make a disposition of it different from that provided in the trust instrument. The case involved the power both of Tennessee and of Alabama to impose an inheritance tax against the trust property. While we are here concerned only as to the power of Tennessee, the domicile of the trustor, it may be noted that the court held that Alabama had taxing power by virtue of the situs of the trust transactions.
The court held that Tennessee also could tax. But what “property” did it find to exist in Tennessee as a constitutional support of the power to tax? Not in the trustor’s mere retention of income, not in the expectant interests of the resident beneficiaries, but in the power which the trustor had reserved to dispose of the property by will, without regard to the terms of the trust instrument. That power, said the court, was a potential source of wealth in the hands of the trustor, and therefore “property” “within the jurisdiction” of Tennessee. The court said:
“The practical obstacles and unwarranted curtailments of state power which may be involved in attempting to prevent the taxation of diverse legal interests in intangibles in more than a single place, through first ascribing to them a fictitious situs and then invoking the prohibition of the fourteenth amendment against their taxation elsewhere, are exemplified by the circumstances of the present case. Here, for reasons of her own, the testatrix, although domiciled in Tennessee and enjoying the benefits of its laws, found it advantageous to create a trust of intangibles in Alabama by vesting legal title to the intangibles and limited powers of control over them in an Alabama trustee. But she also provided that by resort to her power to dispose of property by udll, conferred upon her by the law of the domicile, the trust could be terminated and the property pass under the will. She thus created two sets of legal relationships resulting in distinct intangible rights. . . .” (p. 907.) (Italics ours.)
The court further said:
“The decedent’s power to dispose of the intangibles was a potential source of wealth which was property in her hands from which she was under the highest obligation, in common with her fellow citizens of Tennessee, to contribute to the support of the government whose protection she enjoyed. Exercise of that power, which was in her complete and exclusive control in Tennessee, was made a taxable event by the statutes of the state." (p. 907.) (Italics ours.)
Again the court said:
“. . . it is certain here that the intangibles for some purposes are identified with the trustee, their legal owner, at the place of its domicile and that in another and different relationship and for a different purpose — the exercise of the power of disposition at death, which is the equivalent of ownership — they are identified with the place of domicile of the testatrix, Tennessee.” (p. 908.) (Italics ours.)
The decision was by a divided court, four members holding that the power of the trustor to set aside the trust by will was not such “property” in Tennessee as would give that state the power to- tax. Nor were they or the other members able, apparently, to discover in the case any other “property” basis for supporting Tennessee’s power to tax.
The second case was Graves v. Elliott, supra. The decedent, while a resident of Colorado, transferred to a Colorado trustee certain bonds to be held, with specified powers to administer the trust and invest and reinvest the trust fund. The trustor subsequently moved to New York state and was a resident there when she died. The power of New York to impose an inheritance tax upon the trust property was the question at issue. Here again was a case where it could be said that the intangibles, by virtue of control and management, by investment and reinvestment, had acquired a situs in Colorado. And again the court was confronted with the question of determining what “property right,” if any, existed within the state of New York sufficient to make the trust taxable there. The income was to go to the trustor’s daughter for life and thereafter to designated beneficiaries. The trustor reserved the right to remove the trustee, to change any beneficiary and to revoke the trust, but she died without having exercised such rights. Again by a five-to-four decision the court held that New York had the power to tax. But what was the “property” found in the state of New York? The “property” so found was the power of revocation held by the trustor during her life and relinquished unexercised at her death. The opening paragraph of the majority opinion reads as follows:
“We are asked to say whether the state of New York may constitutionally tax the relinquishment at death, by a domiciled resident of the state, of a power to revoke a trust of intangibles held by a Colorado trustee.” (p. 014.)
Later on in the opinion the court said:
“The essential elements of the question presented here are the same as those considered in No. 339, Curry v. McCandless, decided this day. As is there pointed out, the power of disposition, of property is the equivalent of ownership. It is a potential source of wealth and its exercise in the case of intangibles is the appropriate subject of taxation at the place of the domicile of t)he owner of the power. The relinquishment at death, in consequence of the nonexercise in life, of a power to revoke a trust created by a decedent is likewise an appropriate subject of taxation.” (p. 915.) (Italics ours.)
Again further on the court said:
“For reasons stated in our opinion in Curry v. McCandless, supra, we cannot say that the legal interest of decedent in the intangibles held in trust in Colorado was so dissociated from her person as to be beyond the taxing jurisdiction of the state of her domicile more than her other rights in intangibles. Her right to revoke the trust and to demand the transmission to her of the intangibles by the trustee and the delivery to her of their physical evidences was a potential source of wealth, having the attributes of property.” (p. 915.) (Italics ours.)
It thus appears that the only “property” which the court stated to be remaining in New York was the power of revocation, and that this power had been a “potential source of wealth” even though unexercised. This interpretation of the majority opinion was tersely stated by Chief Justice Hughes, who delivered the dissenting opinion. He said:
“Upon what ground then is it maintained that these securities are within the taxing power of New York? Solely, it appears, upon the ground that the indenture creating the trust in Colorado reserved to the settlor a power of revocation. This unexercised power is treated as carried by the settlor into New York and hence as bringing in its train, the entire corpus of the trust property.” (Italics ours.)
Again, there were four members of the court who found no “prop-, erty” within New York to support the exercise of the taxing power, and the majority called attention to no such “property” other than the power of revocation.
If other factors alone, such as reservation of income or expectant interest of beneficiaries, are sufficient to give to the state of a trustor's domicile taxing jurisdiction of a trust fund long localized and integrated by investment and reinvestment in another state, why did not the court in the two oases just mentioned simply say so and thus avoid much judicial labor? The only reasonable answer is that the court did not so regard them. After elaborate reasoning a majority of the court in one case found that the power to revoke constituted the “property” right remaining within the jurisdiction of New York, and in the other case the power to dispose of by will was the “property” right remaining in the state of Tennessee, which gave the state jurisdiction. Again, it may be noted that Blodgett v. Guaranty Trust Co., supra, and others of like character, relied upon by defendant are not in point here, since no localization and integration of the securities in the state where the trust was administered was shown to exist in those cases. It is a substantial distinction based on logical considerations.
Counsel for defendants call our attention to the case of Pearson v. McGrew (U. S.), 84 L. Ed. 139, recently decided by the United States supreme court. In an opinion handed down on December 4, 1939, the court reversed the Oregon court which had held that Oregon was without jurisdiction to tax the transfer of certain intangibles held in trust in the state of Illinois. The decedent died testate as a resident of Oregon. In earlier years, while living in Illinois, he had placed various securities in the hands of an Illinois trust company, which was to act solely as his agent in collecting principal and income and in making investments. Apparently he had full power to take the funds away from the trust company at any time and to direct investments. He moved to Oregon in 1933, and in August, 1935, shortly before his death, directed the Illinois trust company to sell enough of his securities to realize $450,000, and with the proceeds to buy federal reserve notes. The trust company followed his directions, and on August 15 held $450,000 of federal reserve notes as his agent. On August 15, 1935, he executed an irrevocable trust agreement transferring the federal reserve notes to the trust company for the benefit of certain relatives. The trust company held the notes for four or five days, and from time to time after August 19 used them to purchase bonds and other personal property for the account of the trust. It appeared from the record that the irrevocable trust agreement was a gift “made in contemplation of death,” and the question was whether Oregon had power to tax the transfer of August 15 as such a gift. It appears that the Oregon court held that Oregon did not have power to tax because neither the securities nor the cash used to buy the federal reserve notes or the notes themselves were ever in Oregon, but were at all times in Illinois, and that since the decedent had left them in lili nois a few days prior to August 15 without any intention of bringing them to Oregon they had acquired a business situs in Illinois. Clearly under such facts no business situs had been established in Illinois. The irrevocable trust agreement' was not made until a short time before decedent’s death, and prior to the trust agreement the Illinois trust company had held the securities merely as agent. In its essential features the case is in no way parallel to the case here considered.
Let us now apply the principles and distinctions heretofore noted to the instant case. There was no power of revocation during lifetime or by will. There remained in the trustor no power of management or control or to change beneficiaries or to alter the terms of the instrument in any way. For eleven years the trustee exercised exclusive control and management. The funds were invested exclusively in Missouri. The earnings were made entirely in Missouri, and by investment and reinvestment over a period of eleven years the trust assets had become localized within that state. Such localization had over the whole period been recognized by the imposition of ad valorem and income taxes in Missouri alone, and not in Kansas. Under such facts and circumstances and in the light of the principles laid'down by the highest court, what “property” can be said to remain in Kansas giving constitutional power to impose the tax? It is not to be found in the retention of income, for Kansas reached that for eleven years under the Kansas income tax law, and moreover, it is not the trustor’s interest which here forms the basis of the attempted tax, since hers was not an interest which accrued “in possession or enjoyment at the death of the grantor.” Can the expectant beneficial interests of the two sons, or of the granddaughter, or of Wesley Foundation be held to constitute “property” essential for maintaining the tax? Certainly their interests were not as fixed and assured as were those of the beneficiaries in the Tennessee or New York eases just discussed. Neither one of the sons, nor his estate, would take any benefits whatever under the trust unless the son outlived his mother, the trustor; nor would either of the sons or his estate receive any part of the corpus of the trust unless the son lived more than five years after the death of the mother. None of the other beneficiaries would receive any benefits under the trust unless the sons died within five years after the death of the trustor. Defendant concedes that the donees received no actual interest in or to the property until after the death of the decedent. In no cases which we have been able to find, involving facts similar to the instant one, has such tenuous interests on the part of expectant beneficiaries been considered a “property right” sufficient to support the power to tax a trust of intangibles long integrated by investment and reinvestment in another state. If such an expectant interest of a beneficiary were to be regarded as sufficient to bring within the taxing jurisdiction of the state the whole corpus of a trust long integrated in the economic life of another state, situations might easily1 arise and would arise where the tax would exceed the total interest of the resident beneficiary. Moreover, if the mere residence of beneficiaries having such expectant interest be sufficient to support the power to tax, the power would equally exist if the trustor had at all times been a resident of Missouri rather than of Kansas. No one, we take it, would seriously contend that in the latter instance this state could have levied an inheritance tax upon the trust.
The importance of limitations upon the power of a domiciliary state to tax in a case like the instant one has already been suggested. While there is no prohibition in the federal constitution against double taxation, the desirability, both from a legal and ethical standpoint, of avoiding it as far'as possible or practicable requires no argument. Innumerable comments to such effect by high courts might be cited. (For instance, see Farmers Loan Co. v. Minnesota, 280 U. S. 204, 211-213, 74 L. Ed. 371, 50 S. Ct. Rep. 98.) But the defendant says that the question of double taxation is not involved here, since Missouri has not assessed an inheritance tax upon the Russell trust. Plaintiff replies that this is due to an interpretation of the Missouri statute, made, by the attorney general of that state, which may be temporary. With contentions that may be made in Missouri we are not concerned. Suffice it to say, that if the situation were reversed and the trust had been administered and by investment and reinvestment had acquired a legal situs in Kansas, the power of this state to assess an inheritance tax on the trust property would, in our opinion, be supported by an overwhelming weight of authority.
We conclude that the facts of the instant case provide no jurisdictional grounds for assessment of the tax by the Kansas commission.
3. Is there any provision in the inheritance tax law, section 79-1501, G. S. 19S5, under which an inheritance tax can he assessed upon the trust involved in this case? Stated negatively, is there a vital omission in the statute which precludes lawful imposition of an inheritance tax upon such a trust?
A lengthy statement would be required to present this issue and to note the arguments advanced in able briefs by both parties upon the question, the determination of which may not be. free from difficulty. In view of the conclusions heretofore stated a determination of the question is not here necessary, and we do not now pass upon it.
4. Under the facts in this case would the imposition of the tax constitute the taking of property of the defendant without due process of law and in violation of the fifth and fourteenth amendments to the constitution of the United States?
In view of the conclusion heretofore stated, little need be said in answer to this question. It is well settled that any attempt of one state to tax property or property interests not within its jurisdiction is in violation of the fourteenth amendment to the federal constitution. (See Frick v. Pennsylvania, supra; Farmers Loan Co. v. Minnesota, supra; many older cases cited in Metropolitan Life Ins. Co. v. New Orleans, 205 U. S. 395, 51 L. Ed. 853, 27 S. Ct. 499.)
The writ should be allowed. It is so ordered.
Thiele, J., not participating. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment sustaining defendants’ demurrer to an accusation for contempt of a permanent injunction against certain premises in Sedgwick county which had been judicially declared to be a common nuisance on account of the illegal sale of liquors and the practice of gambling which had been conducted thereat.
On December 14, 1937, a temporary injunction had been issued at the instance of the state against certain described premises known as the “Little River Inn,” enjoining its owners, manager, operator, and their agents, servants and employees, from maintaining a liquor and gambling nuisance therein. At the final hearing on January 18, 1938, the premises were declared to be a common nuisance which should be abated, and the named defendants, L. T. Ramsey and C. J. Clemmons, and their agents, servants, employees, successors, tenants and assignees should be perpetually enjoined and restrained from maintaining said nuisance and enjoined from permitting people to congregate therein for the purpose of drinking intoxicating liquors or gambling. The court found that when the temporary injunction was granted the alleged nuisance existed and the temporary injunction was made permanent.
Some months later, on October 28,1939, about 11 o’clock p. m., the county attorney and some of his deputies raided the premises and found a lot of gambling paraphernalia, a gaining table,' dice, chips, croupier’s rake, cash book, packages of dice which had come by United States mail addressed to H. W. Cline, a record of social security payments in behalf of E. J. Chilcoat, showing the date of his employment, September 4, 1939, and of deductions made and collected from him on weekly salaries paid.
The county attorney filed an affidavit of the pertinent facts, and an order of court was issued for L. T. Ramsey (Link Ramsey), Dan Grant, H. W. Cline and E. J. Chilcoat to show cause why they should not be punished for contempt of the injunction issued on January 18,1938. This was followed by a formal accusation in contempt to which the defendants'," Cline and Chilcoat, answered with a general denial. . ■
. The state’s evidence showed that the present defendants, Cline and Chilcoat, were actively engaged in running the gambling nuisance at the time it was visited by the county attorney and his deputies. A number of patrons of the premises were present, some drinking, some gambling; about fifteen or twenty persons were standing around the gaming table. To the inquiry of an assistant county attorney “Who is running the game?” Chilcoat said, “I am.”
A demurrer in behalf of Cline and Chilcoat was lodged against the state’s evidence because it failed to show that they had personal knowledge or notice that the premises were under permanent injunction as a liquor and gambling nuisance. This demurrer was sustained. The trial court’s opinion dealing with the subject is worth quoting:
“The Court: Link Ramsey, Dan Grant, H. W. Cline and E. J. Chilcoat are the four that are charged in the accusation. E. J. Chilcoat and H. W. Cline, of course, cannot be heard to say that they didn’t know that they were violating the law; they do know that. The court is of the opinion that they cannot be presumed to know that they are violating an order of the court. Everyone is. presumed to know the law; the court is not of the opinion that that presumption extends to an order of the court. There is some reason why. For instance, the defendant Dan Grant may be charged with ‘notice,’ that is, he was a tenant, and the law presumes that he looked into the title of the landlord. The action pending is a matter of public record and the law presumes that he looked into the record, and if he did so he found this injunction. The defendant Link Ramsey, of course, knew the order because he was a party of the original action. Dan Grant cannot be heard to say that he did not know about the order because it pertained to the title of the property which he was occupying as a tenant. The defendants E. J. Chilcoat and H. W. Cline will be discharged. The defendant Dan Grant and Link Ramsey each will be found guilty of contempt of court and will be sentenced to be fined $100 each and to serve thirty days in the county jail each, and to pay the costs of the action.
“[Counsel for the state]: . . . Is it the court’s ruling that it is a matter of law that the defendants Cline and Chilcoat are not in contempt of court? . . .
“The Court: The court is holding that the state has not made any showing that the defendant E. J. Chilcoat and the defendant H. W. Cline had any knowledge, any legal knowledge, of the existence of this injunction.
“[Council for the state]: Now, if I am permitted to say another word, with reference to Ramsey and Grant, there are, as we say, an injunction — two injunctions connected all in this particular one injunction, a liquor injunction and a gambling injunction, and I would like to inquire, Is the court directing the contempt of court, finding them in contempt of court on either one of those or simply on both of them?
“The Court: On both of them. They had liquor in violation of the law and the court finds that they were operating gambling games there in violation of law.”
Judgment was entered accordingly and the state brings the matter here for review.
Our statutes authorizing the suppression of liquor and gambling nuisances by injunction and abatement and the plenary authority of our district courts to enforce their injunctive decrees and to punish those who violate them are so familiar that they need not be set out here. As to liquor nuisance injunctions and their infringement, see particularly G. S. 1935, 21-2118, 21-2130, et seq. As to gambling nuisances and their suppression by injunction, see G. S. 1935, 21-915, 21-918, et seq.
Counsel for defendants cite respectable authorities from other jurisdictions to the effect that persons not parties to an injunction proceeding, particularly if they have had no notice of the injunctive decree, cannot be held guilty of contempt for violating it. To this effect were First Evangelist Baptist Church v. Smith, 153 La. 171, 95 So. 594; State, ex rel. Lindsley, v. Grady, 114 Wash. 692, 195 Pac. 1049, 15 A. L. R. 383; Harris v. Hutchinson, Judge, 160 la. 149,140 N. W. 830; Garrigan v. United States, 163 Fed. 16; Galligan v. United States, 282 Fed. 606; Hill v. United States, 33 F. 2d 489.
Doubtless the cases just cited were in accord with the statutes of their several jurisdictions; and indeed we might hold in accord with them' insofar as an injunction is merely a personal judgment, and that a person not a party to the injunction proceedings and having no notice of the decree could not or should not be held guilty of willful contempt thereof. (However, the authorities are not altogether uniform on this subject. See note in 15 A. L. R. 391, et seq.)
But in the matter of dealing effectively with the evils of liquor and gambling this state, under statutory authority, has blazed a trail of its own, and has developed two lines of remedial procedure and practice pertaining thereto — one in personam and the other in rem. Under our law, when a place where the intoxicating-liquor law is habitually violated, or where the business of gambling is carried on, it is by statute declared to be a nuisance and may be suppressed, enjoined or abated as such. (State v. Richardson, 128 Kan. 627, 278 Pac. 752.) And the injunctive decree prohibiting such use of the premises is an encumbrance which runs with the land, of which everybody must take notice. This is the doctrine of our familiar case, State v. Porter, 76 Kan. 411, 91 Pac. 1073, 13 L. R. A., n. s., 462, decided, over thirty years ago. Recent cases recognizing the same principle were State v. Jones, 149 Kan. 766, 89 P. 2d 878; and State, ex rel., v. Dick, 150 Kan. 230, 92 P. 2d 92. In the latter case it was said:
“It must "be remembered that the primary purpose of the injunction proceeding, insofar as real estate is concerned, is to prohibit its use as a liquor nuisance, and the mere fact the owner did not know of the wrongful use would not defeat the action. To successfully maintain the action against the real estate it is not necessary to prove actual sales. (See State v. Lewis, 63 Kan. 265, 65 Pae., 258, for a more complete discussion.)” (p. 236.)
See, also, State, ex rel., v. City of Coffeyville, 90 Kan. 164, 133 Pac. 711.
Recurring to the statute which declares that a place where gambling is conducted is declared to be a nuisance and prescribing punishment for contempt of an injunction suppressing it, the specific language of the statute says:
“. . . any person (not merely any person having notice) violating the terms of an injunction granted in any such proceedings, shall be punished for contempt. . . .” (G. S. 1935, 21-918.)
In view of our own decisions over a period of thirty years it will not do to weaken the means which the legislature has provided for the enforcement of the law against places which have been adjudicated to be nuisances, nor to permit persons to flout the law and the court’s decree' pertaining thereto on the excuse that they had no personal notice or knowledge of the injunctive encumbrance on the premises where their nefarious crimes were being perpetrated.
Thé judgment of the district court is reversed and the cause remanded for further proceedings not inconsistent with the’opinion of this court.
Reversed and remanded. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to recover against an executor and the surety on his bond. The plaintiff’s demurrer to the bonding company’s answers was sustained, and it appeals:
Plaintiff’s petition alleged that he was the sole heir and the sole distributee of the estate of James Brown, deceased, whose last will was admitted to probate in the probate court of Geary county, Kansas, in April, 1934; that defendant Frank Schreckler was the duly appointed executor of the estate of James Brown, deceased, and had qualified by giving a bond in the sum of $10,000, executed by the defendant, Maryland Casualty Company, hereafter referred to as the casualty company, a copy of the bond being attached as an exhibit to the petition; that the executor in due course had filed his final account and published his notice of final settlement, and in due course had filed his second supplemental final settlement, which came regularly on for hearing on May 11, 1938, at which time the probate court entered its final judgment adjudging that the executor pay over immediately to the plaintiff herein the sum of $1,641.15 as the balance remaining in his hands as executor on final settlement. A copy of the order was attached to the petition and will be referred to later. It was also alleged that on May 12, 1938, the plaintiff made demand in writing on the executor and the casualty company for the above sum, and that immediately thereafter both of the defendants acknowledged the demand, and refused to pay, but in lieu thereof on or about May 13, 1938, the executor tendered the sum of $474.48 as a partial payment only.
° The order of the probate court of May 11, 1938, shows the matter for hearing was the executor’s final report, his supplement to final report and his second supplemental report, and that the court found—
“It has heretofore made temporary allowances to the executor Frank Schreckler, without any hearing had thereon upon notice fixed by the court; that pursuant to the decree of the district court of Geary county, Kansas, and affirmed by the supreme court of the state of Kansas, said executor should be surcharged against said temporary allowances in the total sum of $1,166.67; that so surcharged said accounts are in all respects true and correct;”
After further findings with respect to credits not here involved and that the distributive share to the sole heir at law, James J. Brown, was $1,641.15, the probate court ordered:
“That the reports be approved as herein found, except that part of the second supplemental final report which attempts to excuse said executor from the immediate payment of the amount found herein to be due the sole heir-at-law; that said executor is hereby given credit for all disbursements heretofore authorized by this court, except as to allowances which have been surcharged or set aside and disallowed in this final order, in the total sum of $1,166.67; that the executor pay the court costs in the district court of $5.03, and the premium on his bond of $48; that the sole and only heir at law of the said James Brown, deceased, is his nephew, James J. Brown, of Pittston, Pa.; that the said executor pay over immediately to the said James J. Brown the sum of $1,641.15 shown by said accounts and reports to be due said heir-at-law as the final distributive share of said estate; that said executor and his bondsmen be discharged upon the payment to said James J. Brown of said sum of $1,641.13 and the two items herein mentioned, and the filing of the receipts thereof in this court.”
The answer of the casualty company admitted all of the allegations of plaintiff’s petition and affirmatively set up five defenses, viz.:
1. That the executor tendered to plaintiff $474.48 as a pro tanto payment and plaintiff refused to accept.
2. That the remaining balance plaintiff claims is due, $1,166.67, was voluntarily paid by plaintiff to the executor and was not at any time a part of the assets of the estate of James Brown, deceased; that the payment was made without the knowledge or consent of the casualty company; that the payment was made by the plaintiff to the executor, was made in settlement of a suit by the executor against plaintiff in the state of Wyoming upon a promissory note for $1,750 voluntarily given by plaintiff to the executor for the purpose of inducing the executor to enter into an unlawful agreement with plaintiff to withdraw'an application which the .executor had filed jn Wyoming to be appointed as executor of James J. Brown’s estate in that state; that after the suit was brought plaintiff herein voluntarily paid the executor $1,750, who paid his attorneys $585.33 and retained $1,166.67 as his personal property; that plaintiff was aware of the unlawful nature of the contract, but notwithstanding volun tarily paid the $1,750 to the executor, which sum, less the attorney’s fees, is the surcharge against the executor referred to in the probate court’s order of May 11, 1938; that plaintiff could have protected himself, but voluntarily paid the money to the executor without the knowledge or consent of the casualty company and is guilty of constructive fraud as against the casualty company and by reason of plaintiff’s refusal to accept the $474.48 tendered by the executor plaintiff is not entitled to any recovery from the casualty company.
3. That the unlawful agreement between the plaintiff and the executor placed each in pari delicto, and the agreement having been induced by plaintiff without knowledge or consent of the casualty company, the casualty company cannot in equity be required to reimburse plaintiff, and the probate court was without jurisdiction to determine the aforesaid sum of $1,166.67 was a part of the assets of the estate of James Brown, deceased, and that the judgment was not binding on the casualty company.
4. That plaintiff knew of the relationship of principal and surety between the executor and the casualty company, but notwithstanding failed to notify the casualty company of the unlawful transactions between him and the executor and deprived the casualty company of all opportunity to protect itself after plaintiff had paid the executor the $1,750 until long after the executor had disposed of that sum; that plaintiff knew the executor intended to dispose of that sum, suggested he use it for his personal use, and by reason thereof plaintiff is estopped from asserting any claim against the surety on the executor’s bond.
5. That on June 21, 1938, plaintiff filed an action in the district court of Geary county against the executor and the casualty company seeking recovery upon the same or similar facts as alleged in the present petition; that the casualty company was served with process and compelled to appear in defense; that after the expiration of six months plaintiff voluntarily dismissed that action and filed the present action; that by reason of the above the casualty company was placed in the position of having to defend a direct action against it during the time when it could and would have appealed from the order of the probate cqurt made May 11, 1938; that therefore it did not appeal from that order, but filed its defense in the direct action.
Thereafter the casualty company amended its answer by adding thereto four additional allegations of defense, viz.:
1. That the probate court of Geary county was without jurisdiction to determine that the sum of $1,166.67 was part of the assets of the estate of James J. Brown, deceased, and any judgment to that effect was not binding upon and was null and void as to the casualty company.
2. It would have been futile and useless for the casualty company to have appealed from the order of the probate court made May 11, 1938, for the reason that order was made in compliance with the judgments of the district court of May 8 and 17, 1937, which were subsequently affirmed by the supreme court, all as set forth in the petition filed in the action brought by the plaintiff against the executor and the casualty company on June 21, 1938, that petition and exhibits attached being made a part of the answer.
3. That the casualty company was not a party to the judgments of the district court of March 8 and 17, 1937, against the executor and was not a party to the appeal to the supreme court.
4. Even though such judgment niay be binding upon the executor and upon the probate court, nevertheless it is null and void and of no force against the casualty company.
The executor made no defense. The plaintiff demurred to the answer as amended of the casualty company, the demurrer was sustained, and on September 11,1939, judgment was rendered against both defendants for the sum of $1,772.43, interest and costs. The casualty company appeals.
Substantially all of the contentions made by the casualty company in support of its argument that the trial court erred are based on the assumption that included in the amount found due to the plaintiff as distributee of the estate of James Brown, to wit, $1,641.15, was a surcharge of $1,166.67, and that it represented the proceeds of the unlawful transaction denounced in In re Estate of Brown, 147 Kan. 395, 76 P. 2d 857, and was no part of the general assets of the estate as included in the inventory, and which the surety bond was given to secure. If the pleadings disclose that assumption is not true, much of the argument made requires no comment.
It is to be noted the answer admits the allegations of the petition, and that attached to both petition and answer are a number of exhibits. From all of these it appears that James Brown died testate on April 3, 1937, and that upon probate of his will Frank Schreckler was appointed executor and qualified, the casualty com pany being surety on his bond. In April, 1936, he filed his final account showing that he had collected assets amounting to $3,433.36, and he claimed credit for expenses of a trip to Riverton, Wyo., in April, 1935, in the amount of $155.45, for an allowance of executor’s and attorney’s fees in May, 1935, in the amount of $1,000,- and expenses of another trip to Wyoming in June, 1935, in the amount of $79.73, or a total of $1,235.18. Upon the hearing of this account, the question of surcharge on account of the unlawful dealings with James J. Brown in Wyoming first appeared. The probate court refused to order any surcharge and an appeal was taken to the district court, which found that the executor went to Wyoming in connection with matters having to do with the estate of James Brown, under the order of the probate court and at the expense of the estate of James Brown, and there withdrew his application to be appointed executor in the state of Wyoming, receiving from James J. Brown, plaintiff herein, the sum of $1,750, of which sum he personally received the sum of $1,166.67 net after payment of attorney’s fees. The court further found as quoted in In re Estate of Brown, supra, 1. c. 397, and further, that all allowances made for attorney fees by the probate court were properly made. This was followed by an order that Sehreckler'be surcharged on his accounts in the sum of $1,166.67. As has been stated, this court affirmed the order of the district court. Following our decision, the executor filed in the probate court on May 11, 1938, his second supplemental final account showing a balance on hand as of April 8, 1936, of $985.17, the surcharge of $1,166.67, and claiming credit for certain items not in dispute, and leaving a balance of $1,694.18. On May 11, 1938, there came on for hearing in the probate court the executor’s final report, his supplement to final report and his second supplemental final report, and that court found that it had theretofore made temporary allowances to the executor, without any hearing had thereon upon notice fixed by the court; that pursuant to the decree of the district court, as affirmed by the supreme court, the executor should be surcharged against the temporary allowances the sum of $1,166.67, and that so surcharged the accounts were correct. After allowing further subsequent items of costs not shown in the final account and not in dispute here, the trial court found the final distributive share to be $1,641.15. We think it clear from the above summary that the surcharge of $1,166.67 did not increase the estate, nor did it bring to the executor moneys with which he did not otherwise stand charged. Under ex farte orders previously made, he had prior to June 5, 1935, received allowances for expenses and his own and attorney’s fees amounting to $1,235.18. The probate court specifically placed the surcharge of $1,166.67 against these temporary allowances. '
The hearing at which the above findings were made was on final settlement of the estate pursuant to G. S. 1935, 22-904, 22-906. The order finding the distributive share due and the person entitled thereto was a final order binding upon all persons interested in the estate, unless appeal was taken within thirty days as provided by G. S. 1935, ch. 22, art. 11. This order was not appealed from and became final, and was as to all matters included in it conclusive as against collateral attack by the executor or his surety, except for fraud. (See Schmidt v. Simmons, 136 Kan. 666, 17 P. 2d 835, and cases cited, and Gaston v. Collins, 146 Kan. 449, 457, 72 P. 2d 84.) The generally accepted rule is to the same effect. (24 C. J., p. 1079 [Executors and Administrators, § 2589].) The pleadings disclose that the day after the above order was made, demand was made on the executor and the casualty company for payment of the amount due, but no appeal was perfected by any party in interest. After the expiration of the period in which an appeal could be taken and on June 21, 1938, the first action to recover on the bond was filed. After pending six months that action was dismissed and the present action filed.
The casualty company contends that it did not have to appeal within thirty days, but that under G. S. 1935, 22-915, it had six months to have the account corrected, but by reason of the filing of the first suit on June 21, 1938, and which was not dismissed until that period expired, it did nothing in the probate court. It also contends the probate court had no jurisdiction to make the findings.
It may be observed there is no dispute but that statutory notice of ■final settlement was given to all parties interested under the appropriate statute. G. S. 1935, 22-915, on which the casualty company now relies, but with which it did not comply even if applicable, is a section of the old act with reference to executors and administrators (G. S. 1868, ch. 37) and was peculiarly effective at the times when final settlements were deferred for three years after qualification of the executor or administrator, and when annual settlements were required to be made without formal legal notice to creditors and others interested, and were to be distinguished from final settlements made consequent to formal legally required notice. (See Musick v. Beeke, Adm’r, 17 Kan. 47.) The original three-year period was reduced to two years in 1911 and to one year in 1925. But we need not pursue such a discussion, for here the settlement involved was a final settlement and the casualty company had notice.
Neither may it be said the probate court was without power and jurisdiction to hear and dispose of the matter on final settlement. It is clear that allowances to the executor were made without notice and prior to the time any account was pending awaiting hearing. When the matter finally came on, the probate court found such allowances should be surcharged in the amount ordered by the district court. The pleadings disclose beyond a doubt the executor had used a portion of the estate to his own advantage, and to the injury of the real parties in interest. Under such circumstances—
“It shall be the duty of the court upon any such hearing to assess the amount found by the court to be a proper charge therefor, against such executor or administrator, and thereon such executor or administrator shall be liable on his bond therefor.” (G. S. 1935, 22-919.)
The pleadings disclose not only the above, but also that the executor had neglected to.pay to the distributee the amount ordered. Under such circumstances, an action on his bond may be maintained. (G. S. 1935, 22-1002.)
We conclude that the pleadings under scrutiny disclose that the casualty company’s contention that the surcharge against the executor in the amount of $1,166.67 in effect charged him with moneys not covered by the bond cannot be sustained; that on the contrary all that the probate court did was to assess the surcharge against allowances previously made, which allowances were paid out of assets with which the executor undisputedly stood charged under the inventory, and secured by the bond; that on hearing of the final settlement the probate court had full power and jurisdiction to make the order that it did, and that order became final and conclusive after thirty days, no appeal having been taken therefrom.
Some contention is made that the tender of $474.48 by the executor was a pro tanto release of the casualty company. Supplementing what has been said, the pleadings disclosed that the second supplemental final report was filed. It contained a statement that the executor actually had on hand only the sum of $527.51, and that he had spent the sum with which he stood surcharged. He sought an order of the court permitting him to use what funds he had to pay remaining costs and to apply on the amount due the distributee, the balance remaining due to the distributee of $1,166.67 to be paid at the rate of $25 per month. The probate court very properly refused to make any such order and on the contraiy ordered the executor to pay the entire distributive share immediately, as is shown by the order as hereinbefore set out. After the plaintiff had demanded of the executor and the casualty company payment of the amount found due him, the executor tendered the remaining cash on hand of $474.48. As a general rule, a tender, to be effective, must include everything to which the creditor is entitled. (See annotation 5 A. L. R. 1226.) And in order to discharge a surety, the tender must be legally sufficient in amount (50 C. J., p. 108 [Principal and Surety, § 185]). The tender was no compliance either with the probate court’s order or with the demand of the plaintiff and we think under the circumstances here obtaining cannot be said to be a pro tanto release of the casualty company.
The casualty company also makes some contention that the plaintiff’s conduct was fraudulent and that he is estopped from asserting any claim against it. We shall not discuss these contentions. On the assumption that either could be sustained, it is quite apparent the facts on which they are based were well known prior to the time the final settlement was heard in the probate court. No complaint was made then and we think it too late now.
The judgment of the trial court is affirmed. | [
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|
The opinion of the court was delivered by
Dawson, C. J.;
This is an appeal from a judgment of the district court which modified a judgment of the probate court of Sumner county allowing a claim against the estate of the late Mrs. Cynthia S. Hutchison filed by her daughter, Mrs. Florence J. Markley, for care and services performed under contract with her mother and in her behalf for some two years immediately prior to the mother’s death.
The material facts were these;
Mrs. Hutchison owned two small farms in McPherson county, on one of which she resided for many years. When she grew old she acquired a residence in Canton and took up her abode there. She was the mother of four sons and four daughters. One of the sons had died and was survived by his daughter, Dorthea Prather. All these persons had attained their majority prior to the mother’s death. One son, Horace, lived in Missouri; another son, Edwin, in Oklahoma; a third son, Oliver, resided on a farm near Canton. Dorthea, the granddaughter, resided in Texas. Of Mrs. Hutchison’s daughters, Ozeta was a schoolteacher in Wichita; another daughter, Mrs. Maude Rich, had been a teacher prior to her marriage, and on the death of her husband had resumed her profession. A third daughter, Mrs. Lema V. Flook, resided with her husband and five daughters in Canton. The plaintiff, Mrs. Florence Marldey, resided with her husband and two children at Riverdale, in Sumner county, some seventy-five miles from Canton.
Early in 1932, when the mother was about seventy-two years old, her health began to fail. She desired her daughter Florence and her husband to move to Canton so that Florence could look after her. Florence was the practical nurse of the family, the one depended on in times of family sickness. The mother’s first proposal was:
“Florence, I have been wondering if you and Clair would come up to live so you could take care of me. I don’t want Maude to give up her school, and I don’t want Ozeta to lose out in Wichita. If you will come I will see that you are well paid; I will give you the two farms if you will stay as long as I need you and help take care of me.”
Florence, the plaintiff herein, agreed to do so if her husband could get employment. He was a filling station attendant. He tried unsuccessfully to get employment about Canton, so the mother’s first proposal was not carried out. It seems, however, to have been modified so that for the same consideration the mother would be satisfied if Florence would come whenever she was needed; and that arrangement was carried out for a year or two. Florence made many week-end journeys between her home and her mother’s home in Canton and rendered her needful services.
On one occasion the mother, accompanied by two of her daughters, Ozeta and Maude, went to McPherson for the purpose of executing deeds of the promised lands to Florence. A notary prepared the deeds and gave them to Ozeta with instructions to take them home and insert the land descriptions in them. Ozeta testified:
“We . . . went home and I put the deeds in the top drawer, of my dresser and that was all.”
Sometime in 1934 the mother’s health had failed so much that she disliked being left alone, and proposed to go home with Florence. Ozeta.and Maude advised against that because Florence’s home was not modern, and that their mother should wait until spring. One of the mother’s ailments required the use of a pessary with frequent changes, adjustments and sterilizations; and Florence’s attendance and services had become increasingly necessary. About Christmas time in 1934 the mother and Florence had a conversation in the presence of Ozeta and Maude. The mother said:
“Florence, you take such good care of me, I wish you would take me home with you, [the] income off my place isn’t hardly enough to pay the expenses, but you can have all of that, and I should get some money from the Nebraska estate and maybe that will help, and remember both of the farms are yours when I am through with them. . . . Remember you will have a big job because my father lived a long time and suffered a lot with cancer, and if this should prove to be a cancer, I will need you a long time.”
Florence said: “All right, whatever you say goes, I will come whenever you want me or when Ozeta calls me.”
Early in January, 1935, the mother was taken to a doctor’s office. The three sons and three of the daughters, Ozeta, Lema and Florence, were at the doctor’s office. These members of the family consulted about where their mother should live, but came to no decision. The doctor said she must have good treatment. In response to their inquiry as to what it would cost for her to stay in the hospital Doctor Grover said, “It won’t be less than $20 a day.” The mother said: “I don’t know where I can get that much now. . . . I would rather pay Florence than anyone I know.” The doctor said: “If she wants to go it is all right to take her.” Thereupon Florence took the mother to her home in Sumner county and cared for her thereafter pursuant to the mother’s offer to give her the two farms together with whatever income they might yield over taxes and interest on a mortgage. In the course of the next two years Florence and her husband and their two children made considerable alteration in living arrangements to make the mother comfortable. They first rented a better house and later bought a more comfortable home on her account. As time passed, the mother’s need for attention became more urgent and exacting. Florence faithfully gave her the needed care until the mother’s death on January 24,'1937, at the age of seventy-seven years.
Mrs. Hutchison left a will executed in 1929, in which she named Ozeta executrix without bond. Ozeta declined to serve in that capacity, but accepted appointment as special administratrix; and on December 23, 1937, Florence filed her verified account against the estate as follows:
“In the Probate Court of Sumner County, Kansas
“Estate of C. S. Hutchison, deceased
“To Florence J. Markley, Dr.
“To nursing, care, medical supplies, medical attendance, and laundry, for period from Jan. 5, 1935, to Jan. 24, 1937, at $20 per day, $14,980.”
On January 8,1938, the probate court held a hearing on this claim. The special administratrix appeared in person and by attorney. All the heirs except Dorthea Prather likewise appeared. When the claimant had presented her evidence, all the heirs present, including Ozeta, took time to consult, after which the probate court record recites:
“And on the same day, the claimant and said heirs, including the said Ozeta A. Hutchison, return to the court and announce to the court that they have agreed among themselves on an allowance of said claim, and that by agreement of said heirs that said claim may be allowed by the court in the total sum of $14,980, and that payment thereof will be made by the heirs of said estate by the conveyance of certain real estate belonging to said estate to the aforesaid claimant, Florence J. Markley. To all of which the said claimant in open court consents and agrees.”
The probate court allowed the claim, classifying it as one of the second class. An appeal was taken by two of the heirs, Oliver and Lema, although they had assented to the allowance of the claim in the probate court, as shown above. The granddaughter, Dorthea, who had not appeared' personally in the probate court and had not joined in the family’s consent to the allowance of the claim, likewise appealed — unless her Uncle Edwin was authorized to speak for her, which is suggested in the record but not decided.
Council for claimant filed motions to dismiss the appeal of Oliver and Lema on the ground that they had entered their appearances in the probate court and that they had “consented and agreed to the order and judgment” allowing the claim; and that
“The order and judgment allowing said claim was based on an agreement, compromise, and settlement in which the said Oliver L. Hutchison (and Lema V. Floolc) was a party.”
These motions were overruled, and on September 12, 1938, the appellee filed an amended claim in which she stated the facts narrated above at length and in detail; also the facts of the hearing in the probate court; the participation of all the heirs except Dorthea Prather in that hearing, and that Dorthea was represented thereat by Edwin A. Hutchison.
Counsel for appellants moved to strike from the amended claim all its recitals which pertained to the agreement of the heirs in probate court on the ground—
“The said matters are not a proper part of the record in the trial of this matter and to allow them to remain would only allow prejudicial matters to go before the jury and would result in the trial of collateral issues herein, and for the further reason that the record itself shows that the appellant, Dorthea Prather, was not a party to the alleged settlement or compromise.”
This motion was sustained. The cause was then tried at length before a jury, which returned a general verdict for the claimant for $1,745, and answered special questions, some of which read:
“1. Did Mrs. C. S. Hutchison, in the month of April, 1932, make an oral agreement with the claimant, Florence J. Markley, that if Florence J. Markley would come to the residence of Mrs. C. S. Hutchison in Canton, Kan., whenever she, Florence J. Markley, was so requested by said Mrs. O. S. Hutchison, and take care of the said Mrs. C. S. Hutchison, and would continue to do so from time to time as and when requested, so long as Mrs. C. S. Hutchison lived, then in payment for said services, the said Mrs. C. S. Hutchison would will or deed to Florence J. Markley, the two tracts of farm land in McPherson county: [70 acres, and 80 acres described]? A. Yes.
“2. If you answer question No. 1 ‘Yes,’ then did Mrs. C. S. Hutchison thereafter make any other agreement with the said Florence J. Markley? A. Yes.
“3. Did Mrs. C. S. Hutchison, in the fall of 1934, make an oral agreement with the claimant, Florence J. Markley, that if Florence J. Markley would take Mrs. C. S. Hutchison to her home and there keep her and take care of her so long as she, the said Mrs. C. S. Hutchison, lived, then all the income and money which the said Mrs. C. S. Hutchison had, or would thereafter receive by inheritance or otherwise, should belong to Florence J. Markley and could be used by her in part payment of the expense of taking care of Mrs. C. S. Hutchison after paying any unpaid taxes and mortgages on the real estate of Mrs. C. S. Hutchison, and could be used by Florence J. Markley to pay medicine bills, doctor bills and necessary bills to be paid for maintenance and support, and that at the death of Mrs. C. S. Hutchison this money and all her property, except the house in Canton, Kan., and the furniture therein, should belong to the claimant in payment of her said services and expenses? A. Yes.
“4. Did Mrs. C. S. Hutchison, shortly after she had seen Doctor Grove at Newton, Kan., in January, 1935, orally agree with the claimant, Florence J. Markley, that for the services of Florence J. Markley in taking care of Mrs. C. S. Hutchison, at the home of Florence J. Markley, so long as she, Mrs. C. S. Hutchison, should live, Florence J. Markley should have as payment therefor the sum of $20 per day? A. No.
“6. . . . State what all of said services so rendered were worth per day. A. $5 per day.
“7. What were the two tracts of farm land mentioned and described in question No. 1 fairly and reasonably worth at the time of the death of Mrs. C. 8. Hutchison? A. $9,500.
“8. Do you find from the evidence that it was the intention of the decedent that Mrs. Florence J. Marldey should have some compensation for her services in caring for her mother? A. Yes. '
“9. Do you find that there was a contractual relationship between the deceased and Florence Marldey and that, because of this fact, the claimant, Florence Marldey, is entitled to receive the fair and reasonable valué of her services in caring for her mother, less the income received by her from the property of her mother after the payment of taxes, interest, expenses and upon the mortgage? A. Yes.”
Claimant moved to set aside certain special findings and for judgment on certain others notwithstanding the general- verdict. This motion was overruled except “that part of [claimant’s] motion asking that the answer to special question No. 9 be set aside,” which was sustained. Claimant’s motion for judgment in the sum of $9,500 on the other special findings, non obstante, was sustained, and judgment rendered accordingly.
Hence this appeal.
The principal error assigned relates to the setting aside of the jury’s special finding No. 9, and rendering judgment non obstante for $9,500.
A careful reading of the entire record, however, makes it clear that when the jury gave an affirmative answer to special question No. 3, which embodied the gist of this lawsuit, any further inquiry as to the contractual relationship between mother and daughter was superfluous. And since the jury found that mother and daughter had settled the quid pro quo for the care and keep of the mother, “so long as she, the said Mrs. C. S. Hutchison, lived,” any inquiry or finding touching the fair and reasonable value of claimant’s services was beside the point. If the mother had lived twenty years' instead of-two, the claimant would have had scant pay for her services indeed. That it turned out otherwise is no reason why claimant should be denied the equivalent in money for the consideration she was to receive under her contract with her mother. If the jury had disbelieved the evidence which tended to support the appellees’ amended claim and had given a negative answer to special question No. 3, then the jury’s special findings numbers 5 and' 9, and perhaps others, would have been important and controlling.. The trial court’s instructions to the jury on this controverted issue were perfectly clear. Those pertinent read:
“IX.' If you . do find that the agreement was that Florence J. Markley was to take Mrs. Hutchison to the Markley home and there take care of her, nurse her, furnish her medical supplies and attention in substance as claimed by Mrs. Markley to have been made in the fall of 193d, and as claimed to have been reaffirmed during the Christmas holidays of 1934 as set forth in the statement of plaintiff’s claim, and you further find that Florence J. Markley performed and carried out her part of said agreement, then your verdict should be for the claimant in an amount equal to a reasonable value of the two tracts of land which by stipulation of the parties made in open court was between $9,000 and $10,000 and you will fix such reasonable value of said farms at some specific sum which you feel warranted by the evidence and not less than $9,000 nor more than $10,000.
“XI. If you fail to find that any of the above agreements were made, but do find that there was an oral understanding and agreement between Mrs. C. S. Hutchison and Florence J. Markley that Florence J. Markley was to be paid for her services in taking care of Mrs. Hutchison, then your verdict should be in favor of Florence J. Markley for such sum as you find from the evidence her services to have been reasonably worth, their fair value at the time and place of performance, deducting from said sum such payments as the evidence shows and as you shall find that Florence J. Markley, the claimant, received from Mrs. Hutchison during her lifetime and during the period covered by said services.”
Summarizing these two instructions, the jury were told that if the contract alleged were proved, the jury should render a verdict in claimant’s behalf for the money equivalent of the reasonable value of the lands she was to receive and did not get. But if the contract alleged was not established by the evidence, but some other contract for reasonable compensation for claimant’s services was found to exist, the jury should find accordingly. No error in the court’s ruling on the point complained of is made to appear. And since the jury found that the value of the two tracts of land claimant was to receive was $9,500, it was proper for the court to render judgment for that amount. Indeed, since this appeal was tried before the new probate code of 1939 took effect, there was no other judgment the district court, sitting merely as an appellate probate court, could have rendered. (Ross v. Woollard, 75 Kan. 383, 89 Pac. 680; In re Estate of Dennis, 146 Kan. 121, 124, 68 P. 2d 1083; In re Estate of Brown, 147 Kan. 395, 398, 76 P. 2d 857.) But see the new code (G. S. 1939 Supp. 59-2408).
It is next contended that the trial court erred in admitting evidence and rendering judgment upon a contract upon which no claim was filed and exhibited within the statutory period. We think not. Throughout these proceedings in the probate court and in the dis trict court the appellee’s claim was for monetary compensation for services. The amended claim.in the district court was not a departure, but merely an elaboration of the claim she had filed in the probate court. True, it was for $20 per day, and the evidence did not satisfy the triers of fact that she was to receive $20 per day. However, it seems rather obvious that her claim for $20 per day was based upon a computation of the length of time Florence served her mother and the monetary value she placed upon the land she was to receive for those services but which she did not get. If it was proper for appellee to present any claim at all to the probate court for allowance, it had to be one for money. That court could not have allowed her claim to be paid for in acres of land, even if the one absentee heir, Dorthea Prather, had been present and had joined and assented, as did all the other heirs, that the claim should be thus allowed, and notwithstanding the well-known readiness with which this court gives approval to family settlements.
An argument could be made that claimant made a mistake when she presented any claim in the probate court, that she should have ignored the probate court entirely and should have filed an independent lawsuit in the district court for specific performance, the sort of lawsuit to which this court occasionally does give countenance, but only where a monetary judgment will be inadequate or fruitless, or where to refuse specific performance would cause justice to miscarry. (Rooney v. McDermott, 113 Kan. 18, 213 Pac. 631; Id. 121 Kan. 93, 246 Pac. 183 and citations; Trackwell v. Walker, 142 Kan. 367, 46 P. 2d 603; McEnulty v. McEnulty, 146 Kan. 198, 69 P. 2d 1105; Dent v. Morton, 148 Kan. 97, 79 P. 2d 875; Imthurn v. Martin, 150 Kan. 906, 96 P. 2d 860.) But that point, if sound, was not raised in the trial court nor in this court, so we need give it no present concern. This court cannot lay it down as a rule of law that when special services performed under contract for an aged person are to be paid for in land, and that promise is not kept by the promisor, it is a fatal error for the unrequited person to present for compensation in the probate court the only sort of claim that court would have jurisdiction to entertain. So long as the probate court has no difficulty in ascertaining the truth, and the district court likewise on appeal, this court usually has no difficulty in determining whether error inheres in the record of sufficient gravity to compel a reversal of the judgment.
It is next argued that if the trial court found the answers to the special questions irreconcilable with the general verdict it should have granted a new trial. Not so, however. It was not merely because of some inconsistency between special finding No. 9 and No. 3 that the trial court set it aside, but because No. 9 was quite superfluous and unimportant when No. 3 was answered affirmatively.
The next complaint is based on the trial court’s refusal to give instructions to the effect that if the mother was 'afflicted with mental incapacity when' she made the second contract with claimant (the one made in the fall of 1934 and reaffirmed at Christmas time the same year) it would be unenforceable. We think that point was adequately covered in instruction No. 7 given by the court. Moreover, it is difficult to discern substantial testimony in the record to warrant any instruction on the subject. Indeed, the appellants do not claim the mother was under such mental infirmity that she could not make a contract. They argue that she did make a contract— one in which plaintiff was to be paid a reasonable per diem for her services to her mother. In concluding their 'main brief appellants do not ask that the trial court’s judgment be set aside in toto, but that judgment for $1,745 should be ordered in claimant’s behalf.
In their reply brief counsel for appellants argue that the trial court should have assumed that by their special finding No. 9 the jury intended to find that the contract referred to in special finding No. 3 had been superseded by some later agreement. There was no evidence of some later agreement.
Counsel for appellant make gratuitous use of some hard words touching appellee’s claim — that it was “unfair and oppressive,” and “one that should not be enforced.” Two brothers and two sisters of the claimant who are out-of-pocket if this judgment is affirmed took no such attitude in the probate court nor in the district court. Even the testimony of the brother and sister who are appellants herein, given the utmost credence, would not warrant such a characterization of their sister’s claim in this case.
As there is no contention that the granddaughter was estopped to appeal, we deem it immaterial whether the other two appellants were estopped or not, so the cross-appeal needs no attention.
There is no material error in the record and the judgment is affirmed. | [
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|
The opinion of the court was delivered by
Allegrucci, J.:
This is a direct appeal by Elbert C. Dixon from his conviction by a jury of one count of attempted first- degree murder, K.S.A. 1989 Supp. 21-3301; K.S.A. 1989 Supp. 21-3401. His sentence is 15 years to life imprisonment.
At approximately 10:00 p.m. on March 19, 1990, Elbert Dixon shot Marva Bell in the chin. Bell and Dixon had lived together until approximately two weeks before the shooting. Bell testified that she and her children had moved back to her father’s house because Dixon had beaten her, threatened her at knifepoint, and taken her rent money and spent it on cocaine.
Bell first saw Dixon on the day of the shooting when he knocked on the living room window of her father’s house and asked her to come outside. They talked through the open window for about five minutes. Dixon asked if he could come in to see Bell’s small daughter. Bell testified that she said no, but that he came in anyway. Dixon entered the house through the back door and stayed approximately 20 minutes. Dixon told Bell that he was hungry, that nobody loved him, and that he was depressed. She fed him, and he ate outside the house.
Dixon stated to the police that he stayed at Bell’s about half an hour that afternoon. He left at approximately 4:30 p.m. to check into a shelter.
As he was walking to the shelter, Dixon stopped and called Bell. After checking in at the shelter, Dixon went to a cousin’s house ánd called Bell again. Dixon talked to Bell’s daughter and got the idea that Bell had someone else at the house with her.
Before returning to Bell’s, Dixon consumed two pieces of crack cocaine. He told police that he used the cocaine about an hour before shooting Bell.
Dixon had a .38 revolver hidden at some empty apartments. He got the gun and went to Bell’s house. Dixon said, “I thought I was gonna scare her.”
Bell next saw Dixon when he returned to her father’s house about 10:00 p.m. Dixon spoke to Bell through the living room window. Bell testified that she told Dixon to leave her alone.
When Bell went into the kitchen to prepare a bottle for her daughter, Dixon went to the back door and knocked. Bell went to the door and raised the shade on the back door window. Bell testified that she told Dixon in strong terms to leave her alone. Bell lowered the shadé and walked away from the back door window.
Dixon continued knocking. Bell returned to the window and told Dixon to leave her alone. Through the window Bell saw Dixon pointing a gun at her. Bell testified that Dixon’s arm was out straight and level as he pointed the gun at her and that he was close to the window. Bell testified that Dixon said, “If I can’t have you, can’t nobody else have you.” Then he shot her in the chin.
Dixon told the police that he and Bell talked through the back window. Bell said he was a bum and no good. Dixon said that she was hurting him and he wanted to hurt her and to make her stop saying those things. He shot her from about 12 inches away. He said that he “really didn’t want to do it.”
There were three bullets in the gun. Dixon fired once. He did not know whether there was a bullet in the chamber or not.
After he shot Bell, Dixon ran to a cousin’s house. For a short time he hid, and then he surrendered to police custody on a nearby street comer.
Bell testified that Dixon was smoking cocaine throughout the period from May 1989 to March 1990. Bell testified that about a week before the shooting Dixon had spent $1,300 on cocaine.
The first issue asserted by defendant on appeal is whether the district court erred in failing to instruct the jury on the lesser included offenses of attempted second-degree murder and attempted voluntary manslaughter. The jury was instructed on the alternative charges of attempted first-degree murder and aggravated battery.
Under K.S.A. 21-3107(3), the district court has a duty to instruct on lesser offenses as the evidence may justify, even though the instructions have not been requested. State v. Clark, 214 Kan. 293, Syl. ¶ 4, 521 P.2d 298 (1974). The requirement of 21-3107(3) “is based upon the right of a defendant to have his theory of the case presented to the jury under appropriate instructions where there is support in the evidence.” State v. Guebara, 236 Kan. 791, 795, 696 P.2d 381 (1985). Such instructions must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. State v. [Cain] Dixon, 248 Kan. 776, Syl. ¶ 1, 811 P.2d 1153 (1991).
For purposes of 21-3107(2), the crimes of attempted second-degree murder and attempted voluntary manslaughter are in- eluded crimes of a lesser degree of attempted first-degree murder. See State v. Seelke, 221 Kan. 672, 675, 561 P.2d 869 (1977) (murder in the second degree and voluntary manslaughter are lesser degrees of murder in the first degree).
The defendant’s theory was that he took the gun to Bell’s house with the intent to scare her, and when he shot the gun, he wanted to silence or injure the victim but not kill her. Dixon’s theory comports with the evidence of his statements to the police, and it is reflected in the instruction on aggravated battery.
The State’s theory was that Dixon shot Bell in the face with the premeditated intent to kill her. The State’s theory is reflected in the instruction on attempted first-degree murder.
Dixon argues that the instructions which were given by the district court represent the opposite ends of a continuum of possible instructions which are supported by the evidence. At one end is intentionally, deliberately, and with premeditation attempting to kill; at the other end is intentionally touching or applying force with the intent to injure. The instructions which lie between the extremes are attempted second-degrée murder and attempted voluntary manslaughter. Dixon argues that the evidence which supports the instructions at the extremes necessarily would support those lying in between.
The major problem with defendant’s argument is that the basic notion of the continuum is flawed because aggravated battery is not a lesser included offense of attempted first-degree murder. State v. Daniels, 223 Kan. 266, Syl. ¶ 3, 573 P.2d 607 (1977). Another problem with the notion is that it tends to oversimplify the elemental differences among the offenses.
Second-degree murder “is the malicious killing of a human being, committed without deliberation or premeditation.” K.S.A. 21-3402. The pattern instruction states that to establish the charge of second-degree murder, the following must be proved: (1) that the defendant intentionally killed the victim and (2) that the killing was done maliciously. PIK Crim. 2d 56.03. “Maliciously” means “willfully doing a wrongful act without just cause or excuse.” PIK Crim. 2d 56.04(a) (citing State v. Egbert, 227 Kan. 266, 606 P.2d 1022, cert. denied 449 U.S. 965 [1980]). “Willfully” means “conduct that is purposeful and intentional and not accidental.” PIK Crim. 2d 56.04(c) (citing K.S.A. 21-3201[2] and State v. Osburn, 211 Kan. 248, 505 P.2d 742 [1973]). “Intentionally” means "conduct that is purposeful and willful and not accidental.” PIK Crim. 2d 56.04(d) (citing K.S.A. 21-3201[2] and State v. Stafford, 223 Kan. 62, 65, 573 P.2d 970 [1977]). Premeditation is an element of first-degree murder but not of second-degree murder. In all other respects the elements of the crimes are the same. State v. [Cain] Dixon, 248 Kan. at 782. “Deliberately and with premeditation” means “to have thought over the matter beforehand.” PIK Crim. 2d 56.04(b) (citing State v. McGaffin, 36 Kan. 315, 319, 13 Pac. 560 [1887]), in which premeditation was said to mean “that the accused planned, contrived and schemed beforehand to kill” the victim.
The State takes the position that “if there was an intent to kill, it was a premeditated intent to kill.” In support, the State points to Bell’s testimony that Dixon said, “If I can’t have you, can’t nobody else have you.” The State also points to Dixon’s taped statement that after the shooting he was thinking that he finally had killed Bell, to the inference to be drawn from Dixon’s shooting Bell at close range with a .38 handgun, and to Dixon’s returning to Bell’s house with a loaded gun after he became suspicious that there was someone else in the house with her.
The duty of the district court to instruct on a lesser included offense “arises only where there is evidence upon which the accused might reasonably be convicted of the lesser offense.” Seelke, 221 Kan. at 675. Because reasonableness is an element of this test, there is some weighing of the evidence which occurs. A finding of sufficient evidence tending to show the lesser degree of the crime triggers the duty. See, e.g., Guebara, 236 Kan. at 795. The weighing of evidence, however, is not a retrial of the case.
In [Cain] Dixon, this court concluded that the evidence which tended to show the lesser offense was not evidence which reasonably would support a conviction of the lesser offense. This court stated: “Under the facts of this case and in light of the overwhelming evidence presented at trial, we find the defendant’s sole statement denying intent to kill or harm the victim was insufficient to support a finding of involuntary manslaughter.” 248 Kan. 776, Syl. ¶ 8.
In the present case, even though Dixon was the source of most, if not all, the evidence tending to show the absence of deliberation or premeditation, that evidence does not consist solely of a self-serving declaration that his action lacked those qualities. The defendant did not testify at trial, and the evidence consisted of statements made shortly after the shooting. In this respect the present case is distinguishable from [Cain] Dixon.
In Seelke, we examined the evidence and reversed the conviction because the district court had failed to instruct on a lesser offense. This court concluded that the evidence reasonably would support a conviction of the lesser offense, involuntary manslaughter. The conclusion was reached despite some inconsistencies in the defendant’s statements and substantial State’s evidence tending to establish a greater offense. See 221 Kan. at 675-81.
In Seelke, the defendant shot and killed her husband, who recently had been released from psychiatric care. He arrived home after drinking. Defendant testified that he hit her, bit her, threatened her and their twin babies, strangled her, and forced her to have intercourse. When he again threatened to kill her and the babies, she grabbed a shotgun that was close to the bed and shot him three times, reloaded as he continued to threaten her, and fired a fourth shot. 221 Kan. at 673.
The State presented testimony of a companion who accompanied the husband home that the defendant threatened her husband and his companions if they did not leave. He testified that he saw her silhouette inside the house holding a shotgun. 221 Kan. at 673. The State’s evidence also showed that she replied to her husband’s knock on the door, “You can’t come in and if you do I will shoot you.” 221 Kan. at 675. She had to pump the second and third shells into the chamber before firing them and reload before firing the fourth shot. At first defendant denied reloading, but later admitted it. Defendant testified that her husband told her that if she shot him she had better kill him.
In the present case, there is evidence which tends to show the lesser offense of attempted second-degree murder. Less than an hour after consuming crack cocaine, Dixon went to Bell’s house. His thinking processes may have been disorganized. He believed that there was somebody else at the house with Bell. He took a gun with him, he said, to scare Bell. They were talking through the window in her back door. Bell called Dixon “no good” and a “bum.” Dixon was angry; he wanted to shut her up. He fired once. There were three bullets in the revolver, and when he pulled the trigger he did not know whether or not there was a bullet in the firing chamber. In his taped statement Dixon said, “I was scared at first — I didn’t want to do it.” He also said that he pointed the gun at her and fired. Thus, there is evidence that he fired on impulse rather than following deliberation.
We agree there is substantial evidence, as pointed out by the State and discussed above, that tends to show Dixon’s guilt of the greater offense. The issue is not whether the evidence is strong but whether Dixon might reasonably have been convicted of the lesser offense of attempted second-degree murder, the attempt intentionally to kill Bell without premeditation or deliberation. As we said in State v. Cummings, 242 Kan. 84, 91, 744 P.2d 858 (1987), the evidence need not be strong but may be weak and based solely on the defendant’s testimony. We conclude there was sufficient evidence to require an instruction on attempted second-degree murder.
With regard to the lesser included offense of attempted voluntary manslaughter, Dixon contends that an instruction was required because there was evidence on which a reasonable jury might have convicted him of attempting to kill Bell in the heat of passion. He relies on State v. Hill, 242 Kan. 68, 74-75, 744 P.2d 1228 (1987).
K.S.A. 21-3403 defines voluntary manslaughter as the “unlawful killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion.” The elements of voluntary manslaughter are as follows: (1) The defendant killed the victim, (2) intentionally, and (3) in the heat of passion. PIK Crim. 2d 56.05. “Heat of passion” means “any intense or vehement emotional excitement which was spontaneously provoked from circumstances.” PIK Crim. 2d 56.04(e) (citing State v. McDermott, 202 Kan. 399, 449 P.2d 545, cert. denied 396 U.S. 912 [1969]).
The State relies on State v. Guebara for the following discussion of heat of passion and the standard for provocation:
“(2) ‘Heat of passion’ means any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror. Such emotional state of mind must be of such a degree as would cause an ordinary man to act on impulse without reflection. [Citations omitted.]
“(3) In order to reduce a homicide from murder to voluntary manslaughter, there must be provocation, and such provocation must be recognized by the law as adequate. A provocation is adequate if it is calculated to deprive a reasonable man of self-control and to cause him to act out of passion rather than reason. 2 Wharton’s Criminal Law § 155 [Torcía 14th ed. 1979]. In order for a defendant to be entitled to a reduced charge because he acted in the heat of passion, his emotional state of mind must exist at the time of the act and it must have arisen from circumstances constituting sufficient provocation. [Citations omitted.]
“(4) The test of the sufficiency of the provocation is objective, not subjective. The provocation, whether it be ‘sudden quarrel’ or some other form of provocation, must be sufficient to cause an ordinary man to lose control of his actions and his reason. [Citations omitted.] In applying the objective standard for measuring the sufficiency of the provocation, the standard precludes consideration of the innate peculiarities of the individual defendant. The fact that his intelligence is not high and his passion is easily aroused will not be considered in this connection. [Citation omitted.]
“(5) Mere words or gestures, however insulting, do not constitute adequate provocation, but insulting words when accompanied by other conduct, such as assault, may be considered. 2 Wharton’s Criminal Law § 156. In State v. Buffington, 71 Kan. 804, 81 Pac. 465 (1905), it was held that the trial court properly instructed the jury that no words, however abusive and insulting, will justify an assault or will justify a sufficient provocation to reduce to manslaughter what otherwise would be murder. See also State v. Hardisty, 121 Kan. 576, 249 Pac. 617 (1926).” 236 Kan. at 796-97.
See State v. Hill, 242 Kan. at 74.
In light of these principles, Dixon’s contention that the “evidence of abusive and insulting language by Ms. Bell to Mr. Dixon was sufficient to require the lower court to instruct the jury on attempted voluntary manslaughter” must be rejected. Bell’s words did not justify an assault, and she did not threaten Dixon’s physical safety.
Next, we consider defendant’s argument that the district court’s instruction on the manner by which the jury was to consider the alternative charges of attempted murder and aggravated battery was clearly erroneous. In count one of the complaint/information, Dixon was charged with attempted first-degree murder. Count two, aggravated battery, was charged in the alternative to count one.
Dixon complains that Instruction No. 8 prevented the jurors from even considering whether or not the evidence established his guilt of the aggravated battery charge. The instruction stated the following:
“Elbert C. Dixon is charged in Count One and Count Two in the alternative. In Count One, Mr. Dixon is charged with attempted first degree murder. In Count Two, Mr. Dixon is charged with aggravated battery. Mr. Dixon pleads not guilty to both charges.
“You should first consider if Mr. Dixon is guilty of attempted first degree murder. If you find Mr. Dixon guilty of that charge, you should so indicate on the verdict form and you need not consider if Mr. Dixon is guilty of aggravated battery.
“If you do not agree that Mr. Dixon is guilty of attempted first degree murder, you should then consider if he is guilty of aggravated battery. If you find Mr. Dixon is guilty of that charge, you should so indicate on the verdict form.
“If you find Mr. Dixon is not guilty of either charge, you should so indicate on the verdict form.”
Dixon concedes that trial counsel raised no objection to the instruction. Thus, this court looks to see whether the instruction is clearly erroneous. State v. DeHerrera, 251 Kan. 143, Syl. ¶ 2, 834 P.2d 918 (1992). This standard is met “only if the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.” 251 Kan. 143, Syl. ¶ 2.
Dixon argues that Instruction No. 8 caused the jury to consider aggravated battery as a lesser included offense of attempted first-degree murder rather than as an alternative charge. That is, the instruction directed the jurors to consider the greater charge first and, if they found that it had been proved, to disregard the lesser charge.
Aggravated battery is not a lesser included offense of attempted murder. State v. Daniels, 223 Kan. 266, Syl. ¶ 3. It should also be noted that Dixon could not be convicted of both attempted murder and aggravated battery. In State v. Turbeville, 235 Kan. 993, 995, 686 P.2d 138 (1984), attempted murder and aggravated battery convictions arising out of the same overt act were said to be “clearly multiplicitous.”
On this issue, the State simply asserts that the alternative charges reflected each party’s theory of the case and the jury accepted the prosecution’s theory.
Neither party cites any governing, or even helpful, authority.
A variation of this issue arose in the recently decided case of State v. DeHerrera, 251 Kan. at 146-47. DeHerrera stabbed his wife five times, but did not kill her. Like Dixon, DeHerrera was charged with attempted first-degree murder or in the alternative with aggravated battery. The jury which convicted DeHerrera was instructed on these two offenses as well as attempted second-degree murder as a lesser included offense of attempted first-degree murder.
The instruction as to how the jurors were to proceed with their deliberations, referred to by this court as an “ordering instruction,” stated the following:
“ ‘The order in which you should consider the charges is as follows:
‘You should first consider whether or not defendant is guilty of Attempted Murder in the First Degree.
‘If you find defendant is not guilty of this offense, you should consider whether or not defendant is guilty of Attempted Murder in the Second Degree.
‘Alternatively you should consider whether or not defendant is guilty of Aggravated Battery.
‘If you do not find defendant guilty of either Attempted Murder in the Second Degree or Aggravated Battery, you should then consider, whether or not defendant is guilty of Attempted Voluntary Manslaughter.
‘When there is no reasonable doubt defendant is guilty of an offense and there is a reasonable doubt as to which of two or more offenses a defendant is guilty, the defendant may be convicted of the lesser offense only.’ ” 251 Kan. at 146-47.
DeHerrera’s theory of the evidence was that he wanted to hurt but not kill his wife. He argued that the ordering instruction caused the jury not to consider his theory of the evidence because it appears from the instruction that aggravated battery is in the alternative only to attempted second-degree murder. This court rejected the argument as follows:
‘‘The jury was instructed to first consider whether DeHerrera was guilty of attempted first-degree murder. The jury came to the conclusion DeHerrera was in fact guilty of attempted first-degree murder and, thus, it was unnecessary for the jury to consider whether the defendant was guilty of the lesser included offenses or the alternative charge of aggravated battery. Hence, the ordering of the lesser included offenses with respect to the alternative charge of aggravated battery is irrelevant. Any possible error in the instruction is harmless.” 251 Kan. at 147.
The assumption underlying the proposition is that, where there is evidence to support a finding of guilt of the greater offense, the defendant must be convicted of the greater offense irrespective of the jurors’ decision on any alternative charge. A defendant charged with more than one offense in a multiple-count complaint may be convicted of more than one offense. In contrast where, as here, the defendant has been charged in the alternative, he may be convicted of only one offense. Thus, the multiple-count instruction, PIK Crim. 2d 68.07, is not appropriate where the defendant has been charged in the alternative.
In the lesser included offense instruction the jury is directed to consider the offenses in descending order of severity because the greater (or greatest) offense is the one with which defendant has been charged. If the evidence, principally the State’s evidence, establishes beyond a reasonable doubt the defendant’s guilt of the charged offense, the case is over.
This is the rationale and conclusion we reached in DeHerrera. In Turbeville, too, this court assumed that the defendant should be convicted of the greater offense where the evidence supported each of the alternate charges. Turbeville was convicted of attempted murder and aggravated battery. This court concluded that the convictions were multiplicitous, and the remedy was the setting aside of the conviction and sentence on the aggravated battery charge. 235 Kan. at 995.
Where, as in the present case and in DeHerrera, the charges were submitted to the jury in the alternative, the jurors considered and decided which, if either, charge the defendant should be convicted of. However, logic dictates that where, as here, the alternative charges are based on a single act, and therefore multiplicitous, the jury need not consider the lesser alternative charge of aggravated battery if it finds the defendant guilty of attempted first-degree murder.
The conclusion reached in DeHerrera is controlling in the present case. It was unnecessary for the jury to consider the alternative charge upon deciding that Dixon was guilty of attempted first-degree murder. We find no error in the instruction.
Finally, we consider if the district court erred in failing to suppress Dixon’s taped statement. Dixon does not argue that he was ignorant of his right to remain silent or that he did not understand that he had the right to remain silent. Nor does he allege that his smoking cocaine an hour before the shooting impaired his ability to understand the rights of which he was advised.
What Dixon appears to be arguing is that his taped statement should have been suppressed because his declining to undergo interrogation when he first was taken into custody precluded any subsequent interrogation. Officer Fortune testified at the suppression hearing that he advised Dixon of his Miranda rights when he was taken into custody. Then, when Officer Fortune asked Dixon whether he wanted to talk about the incident, Dixon declined. Fortune’s testimony was that Dixon stated that he did not know because he was “kind of messed up in the head” right then.
At that time Dixon was asked no questions about the shooting. Detective James was contacted. Upon her arrival, she was informed that Officer Fortune had advised Dixon of his Miranda rights. Custody of Dixon was turned over to her for transportation to the police department.
Detective James did not ask Dixon any questions during the drive. Dixon broke the silence by stating “that he really had messed up, he didn’t understand what all was going on but that he had a lot of problems in his life.” Dixon told Detective James that “he had a bad cocaine habit and his dad is Cain Dixon and they didn’t know why they did this to women but he really needed some help.”
At the police department, as James walked Dixon to the elevators Dixon asked if Bell was going to be all right. James responded that she did not know what Bell’s condition was. Dixon said that he wanted to be kept posted.
In the elevator Dixon said to James, “I didn’t mean to kill her, we were arguing, I had been through a lot with her and a lot of things have messed up.” Dixon also volunteered to James that Bell had “messed up” his new car, that he had been through a lot with her, that she had given birth to a child that he had not fathered, and that she had miscarried when she was pregnant with his baby.
Detective James placed Dixon in an interview room, handcuffed him to the table, and went out to obtain information about the incident. Upon returning, she turned on a tape recorder. Because Dixon had stated that he had a drug problem, James began with a medical questionnaire for the purpose of determining whether his ability to understand the Miranda warning was impaired.
After completing the questions on the medical and personal information sheets, Detective James read the Miranda rights to Dixon and he signed the rights form. On the form Dixon checked and initialed the affirmative response to the question, “Having these rights in mind do you wish to talk to us now?” Then Dixon answered James’ questions about the shooting and the surrounding circumstances.
Dixon cites Michigan v. Mosley, 423 U.S. 96, 46 L. Ed. 2d 313, 96 S. Ct. 321 (1975), in support of his argument. After being arrested in connection with some recent robberies and advised of his Miranda rights, Mosley said he did not want to answer questions. Interrogation immediately ceased, and Mosley was taken to a cell. He had not asked to consult with a lawyer. Several hours later another officer took Mosley to the office of the homicide bureau for questioning about an unrelated murder. Mosley again was advised of his Miranda rights. Mosley then made a statement implicating himself in the murder. The procedures followed in each of the interrogation sessions fully comply with Miranda requirements. The issue was whether, in these circumstances, resumption of the questioning was permissible.
The United States Supreme Court concluded that it was permissible. The key to the decision was that Mosley’s “ right to cut off questioning’ was fully respected.” 423 U.S. at 104.
Dixon contrasts his questioning with that of Mosley. He asserts that “Detective James did nothing but attempt to persuade Mr. Dixon to reconsider his decision not to talk about the incident. She never acknowledged his prior refusal, and totally ignored his decision to exercise his Fifth Amendment privilege.” We do not agree.
In the present case, after initially saying that he did not really want to talk, Dixon became quite talkative without any encouragement from the officer who was with him. Before he was asked a single question by Detective James, he volunteered substantial and significant information implicating himself in the shooting. James respected Dixon’s right to cut off questioning; Dixon, however, demonstrated his desire to discuss the incident by making voluntary statements.
The State urges that the United States Supreme Court’s rejection of the concept of a permanent or blanket immunity from interrogation once a defendant has invoked his privilege also is the longstanding rule in Kansas. In State v. Law, 214 Kan. 643, 522 P.2d 320 (1974), defendant was arrested while running from the scene of a burglary. He refused to be questioned at that time. Later, after being taken to the jail, booked, and spending several hours in a cell, defendant was advised of his Miranda rights and waived them. This court concluded that incriminating statements he gave after waiving his rights were admissible. 214 Kan. at 649-50.
The standard of review of a district court’s determination where an inquiry on the admissibility of a defendant’s statement was conducted and the statement was admitted into evidence is narrow. This court will accept the district court’s determination if it is supported by substantial competent evidence. 214 Kan. 643, Syl. ¶ 1.
The record in the present case shows that, after initially declining to talk, Dixon initiated a discussion with Detective James. Without encouragement, Dixon demonstrated his willingness to discuss the shooting. When he was advised a second time of his Miranda rights, he waived them. The district court’s ruling is supported by substantial competent evidence. We find no error in the district court’s failure to suppress the defendant’s statement.
The other issues raised by the defendant on appeal need not be addressed due to the reversal of the defendant’s conviction.
The judgment of the district court is reversed, and the case is remanded for a new trial. | [
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|
The opinion of the court was delivered by
Herd, J.:
This is a condemnation action by the City of Wichita (City) filed against B G Products, Inc. (B G). The action was abandoned after the filing of the court-appointed appraisers’ report. Pursuant to K.S.A. 26-507(b), the district court awarded B G $145,802.33, including $123,000 in attorney fees, for the expenses it incurred in defense of the action. The City appeals and B G cross-appeals. We affirm.
The background for this dispute is not complicated. The City, a municipal corporation, possesses the power of eminent domain. B G is a petrochemical plant located on the east bank of the Arkansas River, immediately south of Kellogg Avenue in the downtown area of Wichita.
In 1987, the City identified a portion of B G’s land and plant facility as necessary for right-of-way to improve Kellogg Avenue. Initially, the City negotiated with B G to purchase the north 80 feet of B G’s property. The City intended to pay B G the cost of acquiring the 80-foot strip of land and redesigning the plant facility to accommodate the remaining smaller site. Based upon estimates of Professional Engineering Consultants (PEC), the City concluded the cost would be $1.5 million.
Upon reconsideration, the City decided to have the property appraised. According to an appraisal by Roger Turner, B G’s entire property was worth $1 million. Thus, in early 1988, the City offered B G $1 million to purchase its land and the entire plant facility. B G rejected the offer and reluctantly informed the City it would agree to discuss a partial taking and modification of the plant facilities.
In May 1988, B G, through its Kansas director, O. J. Connell, contacted attorney Phillip Mellor to represent its interests in the negotiations with the City and in any condemnation proceedings which might follow. B G and Mellor entered into a written contract set out in a letter dated May 27, 1988, from Connell to Mellor. The agreement provided for a contingent fee in which Mellor was to receive 10% of the difference between the City’s offer of $1 million and the amount of the court-appointed appraisers’ award paid into the court. If an appeal was taken from the award, Mellor was to receive one-third of any increase over the court-appointed appraisers’ award paid into court either before trial or after trial. To determine Mellor’s fee, expenses in preparation for trial were to be deducted before calculating the amount of the increase in the award. Any interest paid by the City on a deficiency was to be treated as part of the increase in the award. The contingent fee contract made no provision for compensating the attorney in case of abandonment of the action by the condemner.
On January 4, 1989, the City filed its condemnation action, seeking B G’s entire facility. Two years later the court-appointed appraisers filed their report with the district court. The appraisers determined the total damages to B G were $3,970,000. The City did not pay the amount of the appraisers’ award into the district court within 30 days as required by K.S.A. 26-507(a) and thereby abandoned the condemnation proceedings. Although the City abandoned the condemnation suit, it hired PEC to work with B G to come up with a plan that allowed the City to acquire the north 106 feet of property. Construction costs for this project were estimated at $2,283,000. This estimate did not include a determination of whether the City would obtain title to the property.
B G then requested that the City be ordered to pay B G’s costs of defending the condemnation action, in accordance with K.S.A. 26-507(b), which provides in part:
“Abandonment. If the plaintiff does not make the payment prescribed in subsection (a) thereof for any of the tracts described in the petition, within thirty (30) days, from the time the appraisers’ report is filed, the condemnation is abandoned as to those tracts, and judgment for costs including the appraisers’ fees together with judgment in favor of the defendant for his reasonable expenses incurred in defense of the action, shall be entered against the plaintiff.” (Emphasis added.)
In May 1991, a hearing was held in district court to determine B G’s expenses, including the attorney fees, for which the City would be responsible on behalf of B G. Five witnesses testified at the hearing. Mellor testified that because his fee agreement with B G was contingent, he had kept no time records, but from his files and other written materials he determined he had worked on this condemnation action between 410 and 524 hours. Mellor explained his estimated hours were based upon assigning time to each document in his file and, therefore, did not include any time which did not produce a document, such as telephone calls. He testified the 10% contingent fee is customary in the Wichita area for condemnation cases. Mellor explained that during his career he had been paid on an hourly basis in only three special cases. Ordinarily he would never accept a condemnation case on an hourly rate. Mellor further testified he had worked as a consultant in eminent domain cases for $300 per hour for the Board of County Commissioners of Sedgwick County and the Resolution Trust Corporation. His consultant jobs did not include any trial work.
Mellor also testified the contingent fee contract between B G and himself was unenforceable because the contingency of paying the award into court did not occur. He pointed out, however, the fee contract did prove B G had hired him for this condemnation case and that he had the right to be paid for his work on a quantum meruit basis. Mellor testified he believed 10% of the increase from the City’s original offer of $1 million to the appraisers’ award of $3,970,000, less B G’s other expenses, was a reasonable and normal amount for him to be paid. Thus, he requested that his fee be set at $294,725.77. He further justified his fee request because he had filed an appeal from the appraisers’ award and he believed the case was worth between $6 and 7 million on appeal.
This condemnation action involved issues regarding the application of the “value in use” appraisal approach, possible effects of hazardous waste upon such appraisal, the effect of a railroad right-of-way upon the property, and the extent of ownership of the property in relation to the river. The witnesses agreed the issues in this case were more novel and difficult than a typical eminent domain proceeding. Thus, the skill requisite to perform the legal services not only required an attorney with general knowledge of eminent domain proceedings, but an experienced attorney in this area who was capable of recognizing issues which were both subtle and obscure. Witnesses for both parties testified Mellor is one of the established legal experts in the field of eminent domain.
The witnesses also agreed it was hard to estimate B G’s benefit from Mellor’s work due to the fact B G was back to the starting point. James M. Armstrong, an attorney who has handled con demnation cases, testified on behalf of the City. He stated that getting the increase above the original $1 million offer “was a substantial piece of work in terms of the results obtained.” William P. Higgins, an attorney who also works in the area of eminent domain, testified for B G. Higgins stated Mellor accomplished what the client wanted; that is, to allow the business to continue on the premises and to get the City to pay for needed factory changes in order to operate on a smaller site.
Armstrong also testified he had compared the present case to one he had worked on in the past. That case settled for between $1,250,000 and $1,500,000 and required approximately 120 hours of work. He stated the market rate for eminent domain cases is $200 per hour. Armstrong further testified he believed the number of hours required for B G’s case should not have exceeded 200 hours. Thus, it was Armstrong’s opinion that $40,000 was a reasonable fee for the legal services provided to B G by Mellor.
The district court held Mellor spent a minimum of 410 hours representing B G in this action and should be paid at a rate of $300 per hour. Therefore, the City was ordered to pay $123,000 for attorney fees. The City was also ordered to pay $22,802.33 for other expenses, making a total award of $145,802.33. The City appeals, claiming the attorney fees awarded B G, and ultimately Mellor, are too high. B G cross-appeals, claiming the attorney fees awarded by the district court are too low.
I
For its first issue the City argues B G failed to prove it had any obligation to pay attorney fees incurred by B G in defense of this condemnation action. It contends the district court’s mixed findings of fact and conclusions of law ¶ 14 is inaccurate. That paragraph states:
“It is stipulated that under the provisions of K.S.A. 26-507(b), B. G. is entitled to reasonable attorney’s fees from the City because the City abandoned the eminent domain proceedings by failing to pay the appraisers’ award within thirty days from the date that the appraisers’ report was filed.”
The City claims there was no such stipulation in regard to attorney fees. The City points out that at the close of B G’s evidence, it moved to dismiss B G’s application for attorney fees because B G had failed to establish it had incurred any such expense. The district court reserved ruling on the motion. During the City’s case in chief, the City’s expert witness, Armstrong, testified B G was not obligated to pay Mellor under the contingent fee contract, but he still believed B G would owe Mellor a fee for his services under the theory of quantum meruit. During closing arguments, the City’s attorney stated: “Everybody uses the same language here and agrees that what we’re looking at then is a reasonable fee” and suggested “the proper approach is the one called quantum meruit.”
The City also argues B G failed to carry its burden of proof because B G did not come forward with any evidence that it had already paid Mellor the $294,725.77 that he was requesting.
This issue is without merit. There is substantial evidence to support the district court’s statement that the parties stipulated to the fact the City owed B G reasonable attorney fees. Furthermore, K.S.A. 26-507(b) clearly provides for the City to pay B G’s reasonable expenses. Such expenses include reasonable attorney fees. Even though the contingent fee contract between B G and Mellor is unenforceable, the parties agree B G owes Mellor the reasonable value of his services in defense of the eminent domain action. See Madison v. Goodyear Tire & Rubber Co., 8 Kan. App. 2d 575, Syl. ¶ 1, 663 P.2d 663 (1983).
II
Next, the City claims the district court’s award is not supported by the evidence. Specifically, the City claims the award of attorney fees is too high. In its cross-appeal, B G argues the award is too low. The City claims the reasonable fee should have been $40,000, 200 hours at $200 per hour. In contrast, B G argues the reasonable fee should have been set at the amount Mellor would have received had the City not abandoned the suit— $294,725.77.
The standard for awarding attorney fees, as well as an appellate court’s review of such an award, is well established. In Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, Syl. ¶¶ 9-11, 443 P.2d 681 (1968), we stated:
“The trial court itself is an expert in the area of attorneys’ fees and can draw on and apply its own knowledge and expertise in evaluating their worth.”
“The reasonable value of attorneys’ fees rests within the sound judicial discretion of the trial court and its determination will not be disturbed in the absence of an abuse of discretion.”
“Appellate courts, as well as trial courts, are experts concerning the reasonableness of attorneys’ fees and in the interests of justice may fix such fees when in disagreement with the views of the trial court.”
In support of its claim, the City cites Allison v. Board of Johnson County Comm’rs, 241 Kan. 266, 278, 737 P.2d 6 (1987), in which we stated: “Attorney fees awarded against governmental units should be calculated based on the actual hours reasonably spent and in the same manner as one would bill his own client.” The City claims this sentence stands for the principle that time records must be kept to present a case for quantum meruit. The City has taken this sentence out of context, and its conclusion is incorrect.
Allison involved a district court’s award of attorney fees to the plaintiffs under 42 U.S.C. § 1988 (1982). In 42 U.S.C. § 1983 (1982) actions, attorney fees are awarded the prevailing parties pursuant to § 1988. There, the factors to be considered included: (1) the number of hours spent on the case; (2) the reasonable hourly rate for the attorney; (3) the quality of the attorney’s work and whether it mandates an increase or decrease in the fee; and (4) the benefit produced by the lawsuit. 241 Kan. at 278. Thus, we made the statement governmental units should be billed for the actual hours spent, the same as an attorney would bill his or her own client. Allison is not in conflict with the actions in this case. Only the method of proving the reasonable value of legal services differs.
B G cites condemnation cases from other jurisdictions in which the condemner abandons the case and the trial court awards fees based upon, or equal to, the contingent fee agreement. For example, in Glendora Community Redevelopment Agency v. Demeter, 155 Cal. App. 3d 465, 202 Cal. Rptr. 389 (1984), the appellate court affirmed the trial court’s award of attorney fees in the amount of $656,028.50, based upon a 25% contingency fee.
In City of Gadsden v. Denson, 590 So. 2d 313 (Ala. Civ. App. 1991), the defendants in a condemnation suit hired an attorney who was to be paid 40% of any increase over the City’s original offer of $30,750. Ultimately, the assessed condemnation damages were set at $47,000, but the City abandoned the proceedings. The trial court conducted a hearing to determine litigation expenses, including reasonable attorney fees. The trial court concluded $6,500 was a reasonable attorney fee, the amount the attorney would have received if the City had not abandoned the suit. The Alabama Court of Civil Appeals affirmed and stated:
“Based on our review of the record, it appears that the trial court properly considered the Peebles [v. Miley, 439 So. 2d 137 (Ala. 1983),] factors in making its determination. The fact that the award is equal to 40% of the amount assessed by the commissioners in excess of the original offer is of no import in this appeal. It appears from the record that the trial court did not consider the contingent fee arrangement as the most controlling factor— something which it is not allowed to do — Lanier [v. Moore-Handley, Inc., 575 So. 2d 83 (Ala. 1991)]; rather, he gave each factor its ‘proper interplay.’ Peebles.” 590 So. 2d at 315.
Rule 1.5 (1992 Kan. Ct. R. Annot. 254) of the Model Rules of Professional Conduct (MRPC) provides that the following eight factors should be considered in determining the reasonableness of an attorney fee:
“(1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
“(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
“(3) the fee customarily charged in the locality for similar legal services;
“(4) the amount involved and the results obtained;
“(5) the time limitations imposed by the client or by the circumstances;
“(6) the nature and length of the professional relationship with the client;
“(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
“(8) whether the fee is fixed or contingent.”
Applying MRPC 1.5 to the case before us, we find it involves an eminent domain action, a unique area of the law. The issues in the action were more novel and difficult than in a typical condemnation suit. They included the application of the “value in use” appraisal approach, environmental concerns, and the effect of a railroad right-of-way upon the property. Mellor testified he worked between 410 hours and 524 hours representing B G in the action.
At the hearing, each witness testified as to his opinion of the impact of the eight factors listed in MRPC 1.5. They testified it was likely B G’s representative, Connell, who was an attorney, understood that by accepting B G’s case Mellor would be precluded from other employment. Furthermore, the witnesses agreed this case would probably be the only time Mellor would represent B G. The witnesses also agreed the customary fee in an eminent domain action was a 10 percent contingent fee, with the exception of one local firm that handles eminent domain cases on an hourly fee basis.
This suit involves a substantial amount of money. The City’s original offer was for $1 million, and the appraisers’ award set the property’s value at $3,970,000. All the witnesses agreed Mellor is an expert in the field of eminent domain and had obtained outstanding results for his client. Even though the City abandoned the eminent domain action, B G was more satisfied with the ultimate result because of Mellor’s efforts in that it was able to remain on the property rather than being forced to relocate.
Based on the stipulation of the parties, we hold the proper measure of the worth of Mellor’s services is quantum meruit. The trial court found Mellor had spent 410 hours on this case and that his reasonable hourly rate was $300 per hour. We find the district court’s ruling adequately supported by substantial competent evidence and, therefore, there is no abuse of discretion. Affirmed.
Holmes, C.J., not participating.
Terry L. Bullock, district judge, assigned. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Eldon L. Ford a resident of Topeka at the time of the pertinent events herein and now a resident of Pratt. Mr. Ford is an attorney admitted to the practice of law in Kansas.
A formal hearing before a panel of the Board for Discipline of Attorneys was held on February 6, 1992. Respondent appeared pro se and requested a continuance of the proceedings, which was denied. The parties stipulated to the admission of certain exhibits offered by petitioner, and respondent introduced certain exhibits. Petitioner called witnesses and rested. Respondent called no witnesses. The panel subsequently filed its report recommending disbarment. Respondent filed exceptions to the report. No challenges to specific findings and conclusions are contained therein. The panel made the following findings of fact relative to Count I:
“COUNT I: That the respondent was a partner and associated with the law firm of Cosgrove, Webb and Oman, Topeka, Kansas, from 1976 to October, 1990.
“That the respondent as a member of this law firm had performed legal services for one Marianne Temple and in June, 1989 sent Ms. Temple a billing statement for legal services in the amount of $4,243.18. In August of 1989, Ms. Temple sent her check to respondent for payment of these-legal services, which check was in the sum of $4,243.18.
“The evidence then shows clearly that respondent then endorsed this check and deposited the same in a Bank IV account that was not a law firm account.
“The evidence further shows that after respondent had withdrawn from the law firm of Cosgrove, Webb and Oman, Charles T. Engel, a member of that law firm did additional legal work for Ms. Temple and in May of 1991, sent Ms. Temple a billing statement in the total sum of $10,354, which billing statement also included the previous balance of $4,243.18 that the books of the law firm showed was still owed by Ms. Temple for the prior legal work.
“The evidence further shows that Ms. Temple received the billing statement from Charles T. Engel and thereafter she sent a copy of her check showing prior payment to the respondent, Eldon L. Ford, of the sum of $4,243.18 for the prior legal services which check is shown as part of Exhibit E.
“The evidence further shows that after the receipt of this information, the firm of Cosgrove, Webb and Oman conducted an audit of its-books and records, which audit disclosed that the check of Ms. Temple in the sum of $4,243.18 had not been deposited in any firm account.
“The evidence further shows that on July 2, 1991, the respondent met with Grant Glenn and James Waugh, representing the Cosgrove law firm, and it was confirmed that the Temple check had not been deposited in any regular firm account.
“The evidence then further shows that the respondent upon this confrontation tendered a check to Glenn and Waugh in a sum greater than the check in question and that respondent stated to them that the Temple check had been deposited in a trust account of a client. That the respondent would not tell Glenn and Waugh anything further about the trust client nor would he give them any further information concerning the receipt and deposit of the Temple check.
“The evidence then further disclosed that the respondent wrote to the Cosgrove firm on July 18, 1991, seeking the firm’s patience in resolving this matter, but there has been no further communication from respondent.”.
Count II involved failure to cooperate with the Disciplinary Administrator Office’s investigation of Count I.
The panel then concluded:
"The Panel concludes that by clear and convincing evidence the respondent has violated both Count I and Count II of the complaint as filed herein, and more specifically, to wit: [Model Rules of Professional Conduct 8.4(c) (1992 Kan. Ct. R. Annot. 328)] in that respondent engaged in conduct involving dishonesty, fraud, deceit and misrepresentation.
“Supreme Court Rule 207 [1992 Kan. Ct. R. Annot. 160] - in that respondent failed to assist or cooperate with the Disciplinary Administrator in the investigation of this complaint against him.”
At the hearing, the Office of the Disciplinary Administrator (petitioner) and respondent requested the opportunity to file written statements for the panel’s consideration relative to any facts in aggravation or mitigation. The request was granted and a time schedule was established for the filings. Petitioner filed a state ment, but respondent did not. After the time for such filings expired, the panel filed its final report, which concludes as follows:
“The panel is of the opinion that the conduct of the respondent involved intentional dishonesty, fraud, deceit and misrepresentation. That further and prior to the filing of this complaint respondent did give false and deceptive information to Mr. Glenn and Mr. Waugh during the law firm’s investigation of the missing funds.
“It is the further opinion of the Panel that a lawyer who has misappropriated funds has violated the most basic professional obligation to the public, to wit: Personal honesty and integrity.
“The American Bar Association Standards for Imposing Lawyer Sanctions states that disbarment is generally appropriate in cases which involve the type of activities that were engaged in by the respondent, Eldon L. Ford.
“It is therefore the recommendation of the Panel that the respondent, Eldon L. Ford, be disbarred by the Supreme Court of the state of Kansas from practicing law in the state of Kansas.”
The exceptions filed by respondent concern the following:
1. His request for a continuance was unreasonably denied;
2. the result of the denial of his request was that he had inadequate time to prepare his defenses and was forced to appear without counsel; and
3. that certain exhibits were admitted without reasonable notice to him.
We shall consider exceptions 1 and 2 together. On August 12, 1991, petitioner wrote respondent advising him that a complaint had been filed against him in the Temple matter and requesting a response within 10 days. When no response was received, an investigator was assigned. In the month of October 1991, the investigator made numerous attempts to contact respondent, both by telephone calls and letters. No calls were returned nor were responses received to the letters. The formal complaint was then filed and the matter set for hearing commencing February 6, 1992. Respondent filed his answer on the day of the hearing. The answer, in essence, admitted to the lack of cooperation alleged in Count II, but denied any wrongdoing relative to Count I.
It is true the hearing was held 21 days after the formal complaint was filed. However, in his answer, respondent admits he was advised of the filing of the preliminary complaint via the August 12, 1991, letter from petitioner. Thus, respondent knew for 5V2 months that the matter was the subject of a proceeding in the Disciplinary Administrator’s Office. Respondent’s claim that the denial of his request for a continuance was arbitrary and unreasonable contains no specific facts and circumstances. We find no merit in exceptions Nos. 1 and 2.
Exception 3 claims surprise from petitioner’s exhibit L. When the exhibit was offered, respondent objected thereto on the basis of surprise. A short recess was called during which the parties conferred relative to the exhibit. Thereafter, the following occurred which describes the exhibit and the foundational stipulation entered into:
“Ms. Martin [Deputy Disciplinary Administrator]: . . . Mr. Ford has agreed that if an officer of Bank IV from Topeka, Kansas, were called to testify that he or she would testify that the documents contained in Exhibit [E] consisted] of a check from Marianne Temple dated July 25th, 1989, in the amount of $4,243.18. And that the deposit slip — that there’s a deposit slip showing that check deposited into an account of Eldon Ford in Topeka, Kansas. And that the next two documents are a copy of his monthly statement covering the period of July 21st to August 21st showing that deposit into the account. And that the final page is a copy of the signature card, both as it appeared in 1989, at the time of the deposit, and as it appears today, showing ownership of the account.
“And that officer would testify that these are true and accurate records from the account to which the check was deposited. These were obtained pursuant to a subpoena mailed to the bank on July 17, 1992. Is that accurate, Mr. Ford?
“MS. BLAKE [panel member]: Not 1992.
“CHAIRMAN STITES: 1991.
“MS. MARTIN: January 17th, 1992.
“CHAIRMAN STITES: Mr. Ford, you’ve heard that stipulation. Would you so stipulate as to the foundation?
“MR. FORD: I will so stipulate as to the foundation.
“CHAIRMAN STITES: Okay. Then are you offering these into evidence?
“MS. MARTIN: I am.
“CHAIRMAN STITES: Mr. Ford?
“MR. FORD: And I’m objecting to these on the basis of surprise.
“MS. MARTIN: And in response, I would say it cannot be a surprise since they’re his bank records. He knew where the money was deposited. He knew when the money was deposited. He knew what these records show because they’re his records. And so he may be surprised that the panel is going to be made aware of them, but he’s certainly not surprised that it would be relevant to this inquiry to this panel where the money went that is the subject of the complaint.’’
A copy of the check was in evidence as exhibit E. As noted by Ms. Martin, the balance of the exhibit consisted of respondent’s own bank records. Any surprise would, of necessity, be limited to petitioner’s knowledge and possession of these records, not the existence of the records themselves. We find no merit as to exception No. 3.
Respondent had the opportunity to file a brief herein and received an extension of time for the filing thereof. However, no brief was filed. Respondent did not appear when the matter was set before this court. Hence, the brief statement of exceptions filed stands alone, unaugmented by brief or oral argument.
Respondent elected at the hearing herein not to testify or call witnesses on his own behalf. As previously noted, respondent did not offer any post-hearing information in mitigation although afforded an opportunity to do so.
We conclude that the panel’s findings and conclusions are supported by clear and convincing evidence. We accept the panel’s recommendation of disbarment as the appropriate discipline herein.
It Is Therefore Ordered that Eldon L. Ford be and he is hereby disbarred from the practice of law in the State of Kansas, and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Eldon L. Ford from the roll of attorneys licensed to practice law in the State of Kansas and that respondent forthwith comply with Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176).
It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein be assessed to respondent. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin brought by the Central Branch Union Pacific Railroad Company, and Ralph M. Pomeroy, as Trustee, &c., against Henry T. Eritz, for the recovery of a house. The case was submitted to the court below upon the pleadings and upon an agreed statement of facts; and upon said pleadings and agreed statement of facts the court below found in favor of the defendant and against the plaintiffs, and rendered judgment accordingly. The principal material facts are as follows: The railroad company owned a certain piece of land, containing eighty acres, more or less. It agreed in writing to sell the same upon certain terms and conditions to John C. Archer. The principal of said terms and conditions, so far as they have any application to this case, are as follows:
“The first party hereby agrees to sell unto the second party said land for $952, with interest — the principal to be paid in eight equal annual payments, and the interest to be paid annually in advance. Archer is to take immediate possession of the land, and agrees to improve and cultivate the same; and agrees that no wood shall be cut on the land except for the erection thereupon of buildings and fence, and the necessary purposes of fuel for the family residing thereon, and that all improvements placed upon said premises shall remain thereon, and shall not be removed during the continuance of this contract; «and further, that he will make punctual payment of the above sums as each of the same respectively becomes due, and that he will regularly and seasonably pay all such taxes and assessments as may be lawfully imposed on said premises. But in case the second party shall fail to make the payments aforesaid, and each of them punctually, and upon the strict terms and times above limited, and likewise to perform and complete all and each of his agreements and stipulations aforesaid, strictly and literally, without any failure or default, then this contract, so far as it may bind said first party, shall become null and void, and all rights and interests hereby created, or then existing in favor of the second party, or derived from him, shall cease and determine, and the right of possession, and all equitable and legal interests in the premises hereby contracted, shall revert to and revest in said first party, without any declaration of forfeiture, or act of reentry, or any other act by said first party to be performed, and without any right of said second party of reclamation or compensation for moneys paid or improvements made, as absolutely, fully, and perfectly as if this contract had never been made.”
This contract was entered into on 22d March 1872. On November 4th, next following, Archer assigned the same, and all his right, title and interest in and to said land, to Samuel C. Hunt. The contract itself contemplated that it might be assigned. Hunt immediately took possession of the land and erected the house in controversy thereon. Said house was a one-story frame building, about 16 by 24 feet in size, and was set upon ten blocks of wood, the highest one being about one foot, so that said house almost touched the ground on one side, and was about one foot from the ground on the other side. Said house was built for and occupied by the said Hunt and his family as a residence on said premises, and the said Hunt and family occupied the same as their residence until about the 1st of September 1875, at which time he removed said house from said premises, and into the highway adjoining said premises; and three or four days thereafter said Hunt sold said house to the defendant Henry T. Fritz, for the sum of $200, for which sum said Fritz gave to Hunt his negotiable promissory note, pay ble one year after .date, with interest, and Hunt at the same time assigned and transferred to Fritz the said written contract originally entered into between said railroad company and Archer. Fritz then removed said house from the highway to and upon his own premises, being the west half of the northwest quarter of section 34, in township 5, of range 16, Jackson county, where the same was placed upon a permanent stone foundation, and was standing, when the same was taken by writ of replevin in this action. No payment was ever made on said land except the first annual installment of interest. All the parties had full notice of all the foregoing facts.
That said contract was violated by the failure to make the payments therein stipulated, and also by the removal of said house from the land on which it was built, we think must be admitted. And hence it follows from the terms of the contract itself, that all rights held thereunder, by Archer and his assignees, were forfeited to the # °. 7 plaintiff; and hence it also follows, that at the time the defendant purchased said house, and at the time he placed it on a stone foundation on his own premises, it belonged to the plaintiff, and the plaintiff had a right to replevy the same. (Ogden v. Stock, 34 Ill. 522; Mills v. Reddick, 1 Neb. 437; Hartwell v. Kelley, 117 Mass. 235; Huebschmann v. McHenry, 29 Wis. 656; Sands v. Pfeiffer, 10 Cal. 258; Laflin v. Griffiths, 35 Barb. 58; Congregational Society v. Fleming, 11 Iowa, 533; Davis v. Easley, 13 Ill. 192.) Whether the plaintiff could still replevy the house after it was placed upon a permanent stone foundation upon the defendant’s premises, is a more difficult question. In Nebraska, we think it would be held that replevin would lie, and probably also in Massachusetts; (Mills v. Reddick, and Hartwell v. Kelley, supra;) while in Indiana, it is possible that a different rule would prevail; (Reese v. Jared, 15 Ind. 142.) That is, in Nebraska it would be held, that a mere wrongdoer, by merely placing a house belonging to another upon a permanent foundation on his own land, could not thereby so change the character of the property that notwithstanding any objection the owner might make he (the wrongdoer) would nevertheless convert the property from a chattel into real property, and transfer the title thereto from the owner thereof to himself. The decision in Indiana may differ from that in Nebraska, and from that in Massachusetts; but we do not think it goes to the full extent of declaring a contrary doctrine. ' It does not appear in the Indiana case, that Schmall, the owner of the land, was a mere wrongdoer, although in law he had no right to the house as against the original owner, until after it was placed on a permanent foundation on his own land.
It is true, that whether a thing is to be considered as a part of the realty or not, always depends upon its connection with the soil; but this connection may be slight, as well as strong, remote, as well as near, and constructive, as well 7 7 7 as natural or absolute; and the question also depen(js upon other and various considerations, as well as attachment to the soil. Thus, keys belonging to a house, mill-stones, etc., belonging to a mill, are parts of the realty, although they may not, for the time being, be near the realty to which they belong. In such cases, the articles in question are constructively attached to the soil. But attachment to the soil is, as we have already suggested, only one of several conditions which help to determine whether a given thing belongs to the realty or not. A thing may be ever so closely and intimately attached to the soil, and may in fact never have had any independent existence, and yet it may not be a part of the realty. Thus, growing crops, and nurseries of young trees, are only chattels, although their roots extend deep into the soil. The question depends upon many considerations; and this is particularly so where the article in question was formerly a chattel. Thus, it depends., 1st, upon the annexatiom of the article in question to the realty; and as this annexation may be actual, or cthistructive, direct, or remote, firm, or loose, and as the article itself may be great, or small, ponderous, or light, and strong, or fragile, it depends also very much upon the ease and convenience with which the article may be again separated from the realty. 2d, It depends upon the right of the parties to so annex the article; that is, the right of the parties to so use the article, and the right of the parties to so use the realt~j; and as there may be various parties interested in the use or ownership of the article, and in the use and ownership of the realty, this right may be very complex and intricate. 3d, It depends upon the intention of th~ parties; that is, the intention of the parties making the annexation, the intention of the parties owning and entitled to the use of the article, and the intention of the parties owning and entitled to the use of the realty. Of course, it depends upon the right of the various parties to form this intention, and their right to execute such intention; but this proposition is probably included in the second proposition above stated. 4th, It also depends upon the adaptability of the article to be used as a part of the realty to which it has been annexed. This is particularly true where the article in question has only a slight connection with the realty, or where it has oniy a constructive annexation thereto. This question, when a chattel becomes a fixture, and a part of the realty, has already in several of its various aspects been discussed by this court, in the cases of Evans v. Estes, 10 Kas. 314, and Shoemaker v. Simpson, 16 Kas. 43; and to these cases we would refer. The question whether a given thing is a part of the realty, or not, depends upon so many questions that many of the decisions would seem, to a superficial observer, to be inconsistent and contradictory; and yet nearly all of such decisions may be harmonized. Thus, dry stones, or rails, laid one upon another so as to constitute a fence, are held to belong to the realty, although they have no attach ment to the soil except that produced by their own weight. It has even been held, in Wisconsin, “that where rails have been placed along the line of an intended fence for the purpose of being laid in the fence, though not actually applied to that use, they pass by a deed of the land, there having been á manifest appropriation to the use of the land.” (Conklin v. Parsons, 1 Chandler, 240, 244.) It has also been held, that rolling-stock belonging to a railroad company is sometimes real property. (Ewell on Fixtures, 34, et seq.) It has also been held that a wooden house, easily removable, resting upon blocks lying upon the ground, or resting upon the surface without being let into the soil, is nevertheless a part of the realty. Ogden v. Stock, 34 Ill. 522; Huebschmann v. McHenry, 29 Wis. 655; Reid v. Kirk, 12 Rich. (S. C.) 54. On the other hand, it has been held that a stone pier, “firmly imbedded in the earth,” was under certain circumstances only personal property. (Wagner v. C. & T. R. Co., 22 Ohio St. 563.) It has also been held that structures resting on solid foundations firmly imbedded in the earth, are sometimes only personal property. (King v. Otley, 1 Barnwell & Adolphus, 161; Wansborough v. Maton, 4 Adolphus & Ellis, 884. Many American cases might also be referred to on this point, among which see, Hartwell v. Kelly, 117 Mass. 235; Winte’s Appeal, 10 Penn. St. 252; Adams v. Goddard, 48 Me. 212; Alexander v. Touhy, 13 Kas. 64.) Even dwelling-houses, resting upon solid and firm foundations, are sometimes not a part of the realty, but only chattels. (Mills v. Reddick, 1 Neb. 437; Fuller v. Tabor, 39 Me. 519; Dame v. Dame, 38 N. H. 429, and cases there cited; Van Ness v. Pacard, 2 Peters, 137; Osgood v. Howard, 6 Me. 452; Adams v. Goddard, 48 Me. 412. See also, Alexander v. Touhy, 13 Kas. 64; and Hartwell v. Kelly, 117 Mass. 235.) The question in such cases, as to whether the houses are real property, or only chattels, is determined by many other considerations, as well as annexation to the soil. In some cases it is probable that a thing may be considered both as real estate and as personal property. For instance: suppose the grantor should wrongfully keep the keys to the house which he sells, and the grantee should sue him therefor in an action of replevin; the grantee in such a case might probably consider the keys as real estate, for the purpose of giving him a title to them, and as personal property for the purpose of recovering them in replevin. There are certainly many cases in which a party would have the right to elect whether he would consider a certain thing as real estate, or as .personal property. All the foregoing remarks have reference to what are Usually denominated “fixtures;” that is, articles which were previously chattels, but which have been more or less intimately connected with real estate, and do not have reference to things which were always connected with the real estate.
In the light of the foregoing remarks we may now decide this case. Said house was built in pursuance of said contract. The contract contemplated that a dwelling-house should be built on the land which the railroad company contracted to sell to Archer; that it would be of a permanent character; that it should remain on the land until all the terms and conditions of the contract were complied with and fullfilled; and that if any of the terms or conditions should not be fulfilled, then that the contract should be at an end, and all the improvements made on the land should remain thereon and be the property of the owner of the realty. Said terms and conditions were not fulfilled. The house was removed from the land, which removal was itself a violation of the contract. The house then became persona! property, (at least, at the election of the plaintiff it became personal property,) and belonged to the plaintiff. And the defendant could not then by removing it onto his own land, and placing a stone foundation thereunder, transform the house into real estate, or transfer the title thereto from the plaintiff to himself. We think the house was real estate when it was first built on the plaintiff’s land. Its attachment to the soil would not alone and of itself have made it so; but such attachment, taken together with the agreement of the-parties, as expressed in their contract, made it so. It became personal property when it was detached from the plaintiff’s land. And when it was removed onto the defendant’s land, it did not again become real estate; and certainly, not as against the interests and wishes of the plaintiff. At common law, before a chattel could become real estate by its annexation alone to real property, it had to be fastened to the real property by some mode more staunch and firm than the mere strength of its own weight. This has been settled by the two English cases already cited. In- the first of such cases it was decided, that where a “mill was of wood, and had a foundation of brick, but the wood-work was not inserted in the brick foundation, but rested upon it by its own weight alone,” that the mill was only a chattel. In the second case, it was held that where “a wooden barn” was “erected on a foundation of brick and stone, the foundation being let into the ground, but the barn resting upon it by weight alone,” the barn was only a chattel. In these two cases there was nothing but the mere foundations showing that the mill and barn should be considered as real estate; and the court held that they were not sufficient for that purpose. In the present case, there is nothing showing that the house in controversy should be considered as real estate when replevied, except merely the stone foundation, and the defendant’s intention; and we do not think they are sufficient. The defendant had no right to place the house upon said stone foundation; nor had he any right to form the intention of making the house real estate. His placing the house upon a stone foundation had no more effect upon the character of the house than if he had placed it upon a stone pavement, or upon the earth itself; for he had no right to place the house upon either. The house and foundation were not built at the same time, as parts and portions of a single whole, but were built separately; and the house, at the time it was placed on said foundation, and afterward, was a movable structure. It is our opinion therefore, that the house at the election of the plaintiff, was personal property at the time_it was replevied, and that the plaintiff had a right to replevy it. Of course the plaintiff could have elected to consider it real estate if it had so chosen, but it did not so choose. Whether the defendant ever used this house as a dwelling-house, or indeed whether he ever used it for any purpose, is not shown. His right therefore to it rests merely upon the fact that he placed it upon a stone foundation, intending to make it real property and his own property. Upon this part of the case-we do not wish to decide more than is necessary to be decided in the case. Hence all that we decide in this connection is-as follows: Where a house, which is a chattel, and belongs-to A., is wrongfully removed and placed upon a permanent stone foundation on the land of B., B. intending at the time-to convert the house into real estate, and to make it his own,, and the house is one that can easily be removed from the land of B. without any substantial injury to either the house- or the land, the house does not thereby become a part of the realty belonging to B., but remains merely a chattel belonging to A., and A. may recover the same in an action of replevin.
The judgment of the court below will be reversed, and cause remanded with the order, that judgment be rendered in favor of the plaintiff and against the defendant on the agreed statement of facts.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was commenced in a justice’s court, and after judgment, was appealed to the district court. The plaintiff’s bill of particulars reads as follows:
Clay Center, Clay Co., Kas., Sept. 18, 1876.
A. Fanson, Dr. To Chas. E. Linsley:
For work and labor performed, repairing and running a steam threshing machine, from Aug. 20th 1876 to Sept. 10th 1876, 18 days’ work, at $2 per day, . . $36.00
Cr., cash,.........$5.00
Balance due,........31.00
The defendant’s amended bill of particulars, after the title, reads as follows:
I. The defendant for a first defense to the plaintiff’s bill of particulars herein, says, that he denies each and every allegation therein contained.
II. The defendant further answering says, that the cause of action of the plaintiff herein arises upon a contract for the employment of the plaintiff by the defendant as an engineer of a steam threshing-machine owned by the defendant, and that after the machine had been run for the period of eleven days during the threshing season of. 1876, by the plaintiff as its engineer, the defendant discovering a defect in the machinery of said machine determined to abandon its use, and in pursuance of such determination the defendant laid up and housed said machine; and that afterward, while said machine was laid up and housed, he [the plaintiff] took possession of said machine and ran the same for the period of three days, and that the use of said machine was worth the sum of fifteen dollars per day, amounting to the sum of forty-five dollars, for which the defendant asks judgment of the plaintiff.
III. The defendant further answering says, that the cause of action herein set forth by the plaintiff arises upon a con tract for the employment by the defendant of the plaintiff as an engineer of a steam threshing-machine; that during the absence of the defendant, the plaintiff, without the knowledge or consent of the defendant, took possession of the said machine, and moved it a great distance from where it was left by the defendant, so that it cost the defendant the sum of $12 to get said machine back to the place from where it was taken by the plaintiff. The defendant further says that while the plaintiff was so in possession of said machine, said machine was damaged in the sum of fifteen dollars. The defendant asks judgment against the plaintiff for said sum of twenty-five dollars.
The defendant asks judgment against the plaintiff for the sum of seventy-two dollars.
The plaintiff demurred to said second and third paragraphs, on the ground that they did not state facts sufficient to constitute any defense to the plaintiff’s cause of action, or to entitle the defendant to any relief. The demurrer was to each paragraph separately. The defendant asked the court to sustain the demurrer as to the plaintiff’s bill of particulars, but the court refused, and sustained the same as to both of said second and third paragraphs. Judgment was i’endered in favor of the plaintiff and against the defendant.
Counsel have entered into the following agreement in this case, to-wit:
“It is agreed by counsel, that all informalities and irregularities appearing herein are waived, and that the only questions herein are — First, Did the court err in refusing to carry the plaintiff’s demurrer back to and to sustain the same to the plaintiff’s bill of particulars? and second, did the court err in sustaining the plaintiff’s demurrer to the second and third paragraphs of the defendant’s bill of particulars?”
We do not think that the court below erred in refusing to sustain said demurrer as to the plaintiff’s bill of particulars. Said bill evidently stated facts sufficient to constitute a cause of action. Facts are not stated with the same degree of elaborateness and formality in justices courts that they are in the district courts.
We think the court below erred in sustaining said demurrer to the defendant's bill of particulars, or answer. The second and third paragraphs, respectively, as we think, if construed liberally, as bills of particulars filed in justices courts ought to be construed, stated facts sufficient to constitute a cause of action. And this is the oniy question said demurrer raised. But from counsel's brief we would suppose that counsel do not really wish us to decide this question only, but do wish us to decide whether both the causes of action actually set forth in said second and third paragraphs are proper subjects of set-off or counterclaim in this action. In answer to this question we would say, that we think the first cause of action stated in the defendant's bill of particulars is a proper subject of set-off in this action; but that the second cause of action stated therein is not a proper subject of either set-off or counterclaim. "In this state, any cause of action arising from contract, whether it be for a liquidated demand, or for unliquidated damages, may constitute a set-off, and be pleaded as such, in any action founded upon contract, whether such action be for a liquidated demand, or for unliquidated damages," (Stevens v. Able, 15 Kas. 584; Read v. Jeffries, 16 Kas. 534.) Also in this state, causes of action, legal and equitable, for liquidated and unliquidated damages, or for other relicf, may all be united in one action where all arise out of contracts either express or implied. (Gen. Stat. 645, § 83.) And causes of action founded upon implied contracts may be assigned so as to give to the assignee the right to revover thereon in his own name. (Stewart v. Balderston, 10 Kas. 131.) And no good reason can be given, as we think, why causes of action founded upon implied contracts may not be pleaded in set-off as we11 as any other causes of action. The statute does not attempt to confine set-off to any particular kind or kinds of contract, but leaves the matter open, so that it may be applied in all cases of contract. A set-off therefore, under the statute, may be a cause of action arising out of any kind of contract, and may be set up by the defendant in an action founded upon any like cause of action. (Gen. Stat. 649, § 98; see also Norden v. Jones, 33 Wis. 600.) The ■cause of action set up in defendant’s second defense is really-founded upon a tort. But it is also founded upon an implied contract, at the election of the defendant. That ^ defendant may waive the tort, if he chooses, and treat his cause of action as one arising upon an implied contract. The wrong committed by the plaintiff affected his estate. It benefited the estate of the plaintiff. And it was committed for the purpose of benefiting the estate of the plaintiff. And therefore it will be presumed or implied that the plaintiff agreed to pay for such benefit. We think it is well settled, that wherever one person commits a wrong or tort against the estate of another, with the intention of benefiting his own estate, the law will, at the election of the party injured, imply or presume a contract on the part of the wrongdoer to pay to the party injured the full value of all benefits resulting to such wrongdoer. (Stewart v. Balderston, 10 Kas. 142; Tightmeyer v. Mongold, ante, p. 90, and cases -there cited.) The party injured may in such a case elect to sue upon the implied contract for the value of the benefits received by the wrongdoer, or he may sue upon the tort for the damages which he himself has sustained. According to the defendant’s bill of particulars in this case, the value of fhe use of said threshing-machine for the three days which the plaintiff used it, was $45. If this bill of particulars were true, the defendant should have recovered that amount; or rather, after setting-off one claim against the other he .should have recovered the balance due.
We do not think that the cause of action stated in defendant’s third, defense is a proper subject of either set-off or counterclaim. It does not appear from such defense that the plaintiff received or expected to receive any benefit from his wrongdoing; and the relief asked for by the defendant is not for the value of any benefit resulting to the plaintiff, but is for damages sustained by the defendant. The cause of action therefore does not arise from any contract express or implied; (Tightmeyer v. Mongold, supra;) and therefore it cannot be pleaded by the defendant as a set-off. And said cause of action has no connection with the employment of said plaintiff by the defendant to operate, or in operating, said threshing-machine for the defendant, and hence it cannot be pleaded by the defendant as a counterclaim.
The judgment of the court below will be reversed, and cause remanded for further proceedings in accordance with this opinion.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was a criminal prosecution for murder in the first degree. It was originally instituted in Smith county, but was taken on change of venue at the instance of the defendant, David T. Biddle, to Jewell county, where it was tried, and the defendant found guilty of murder in the second degree, and sentenced therefor to ten years’ imprisonment in the penitentiary. From that sentence he now appeals to this court. The record shows that—
“The case being called for trial, (in the district court of Jewell county,) and a jury duly impanneled and sworn, the state proceeded to present its case to the jury, upon which the defendant demanded that he be tried upon the original information, and not upon a copy certified from the clerk of the district court of Smith county. Defendant also objected to a trial at that time upon the ground of a lack or defect of certificate to the transcript from Smith county, said certificate being made, and seal of said court affixed, by said clerk, out of said Smith county, and in the town of Jewell Center, after said case was called, and the said jury impanneled. The court overruled the said several objections in both cases, and ordered said trial to proceed, to which the defendant at the. time excepted.”
No evidence was introduced to show that what the defendant claimed with reference to said certificate being made and attested out of Smith county, was true. The trial then proceeded. The state introduced its evidence, which clearly showed that the defendant was guilty of murder in the second degree, as charged in the information, by feloniously stabbing and killing the deceased, David Frazier, with a knife. The defendant then introduced his evidence, which amounted to but little more than to show that the deceased was a larger, stronger, and more athletic man than the defendant. The record also shows that a witness was then introduced by the defendant, and —
“Said witness was then asked, ‘Are you acquainted with the character that Frazier bore as a quarrelsome, turbulent, and violent man?’ — to which counsel for the state objected. The objection was sustained, and the defendant excepted. Defendant then offered to prove that Frazier had the reputation of being a quarrelsome, turbulent and violent man, to which the state objected. The objection was sustained, defendant excepting. The defendant then, rested his case.”
The court, thereupon instructed the jury. We think the charge was perfectly fair toward the defendant. The defendant however took exceptions to several of the instructions given, and also took exceptions to the refusal of the court to give several others. The court ordered that the argument of counsel to the jury should be limited as to time to four- and-one-half hours on each side, to which the defendant excepted. After the argument of counsel, the jury retired to consider of their verdict, and afterward brought in a verdict, finding the defendant guilty of murder in the second degree, as before stated. The defendant moved the court for a new trial, upon various grounds, among which were the following: The defendant was not tried upon the original information, nor upon a properly-certified transcript of the record and proceedings from the Smith county district court; counsel were improperly limited as to time in their argument to the jury; and the verdict was against the law and the evidence. No mention was made in the motion for a new trial concerning the supposed errors of the court below in excluding evidence, or in giving or refusing to give instructions. Therefore, as to these matters, see Nesbit v. Hines, 17 Kas. 316, and Fowler v. Young, 19 Kas. 150.
On the hearing of the motion for a new trial the defendant read an affidavit of one James John, stating substantially that the affiant saw the clerk of the district court of Smith county affix his official seal to “some papers during the trial of the case of The State of Kansas v. David T. Riddle, in Jewell county, and this affiant verily believes that the certificate attached to the transcript in said case was one of the papers to which he as aforesaid at the place and time aforesaid affixed his said seal.” The court below overruled said motion for a new trial, and the defendant excepted — and thereupon the court sentenced the defendant as aforesaid.
We do not think that the court below erred in trying the defendant upon a certified transcript of the inforniat;i0ri, instead of upon the original information. The statute provides that when a change of venue is ordered in a criminal case, “the clerk of the court in which the same is pending shall make out a full transcript of the record and proceedings in the cause, including the order of removal, the petition therefor, if any, and the recognizance of the defendant, and of all witnesses, and shall transmit the same, duly certified under the seal of the court, to the clerk of the court to which the removal is ordered.” (Gen. Stat. 850, §188.) It will be seen that nothing but a “transcript of the record and proceedings” — no original paper of any kind — is authorized to be transmitted by the clerk to the county to which the case is ordered to be removed. Now the “record and proceedings” in a criminal case will certainly include the information; and there is no statute authorizing the clerk in any case to permit the original information to be taken from his custody or control.
The “record and proceedings” of the district court of Smith county appear to have been “duly certified, under the seal of the court.” And there is nothing in the record showing the contrary, except the mere belief of James John, as shown by his affidavit. But suppose the facts were just as John “believed” them to-have been: would that require a reversal, under the circumstances of this case? We must presume however, as against John’s belief, that the record and proceedings were duly certified under the seal of the court, just as they appear to be in the record.
3. Character of deceased. Statement of facts. Even if the defendant has properly saved his exceptions to the ruling of the court below excluding the evidence as to' the character of the deceased for being a “quarrelsome, turbulent, and violent man,” (see Nesbit v. Hines, and Fowler v. Young, supra,) still we do not think that the court below erred in excluding it in this case. Such evidence as a rule should be excluded; (Wise v. The State, 2 Kas. 419;) and the facts of this case do not present one of the exceptions. There is nothing in the case to show that the deceased intended or desired, or was likely to commit more than a mere assault and battery with his fists upon the de fendant, or that he could have done more than that, at that time, even if he had so desired. There was no evidence that the deceased was armed, or that he ever carried arms. Whether the deceased would even have committed an assault and battery, if the defendant had said he would not fight, is not shown. The two men were nearly of the same size, and both had friends present at the time the killing was done. There was no evidence tending to show that the defendant knew the character of the deceased, or his strength; and the defendant did not offer to introduce any such evidence. The facts concerning the killing are substantially as follows: On the 7th of November 1876, a singing-school was held in Laphan’s church, in Smith county, at which singing-school several young men and young women were congregated, among whom were the defendant and the deceased. During the intervals between the singing, and sometimes during the singing, the defendant played on a French harp. The deceased offered to give the defendant a “nickel” if he would stop playing. The defendant told the deceased to go away, and mind his own business, whereupon the deceased invited the defendant out-doors to settle the matter, and the deceased himself went out-doors. The defendant then went to the door saying, “He is trying to run over me, and I will not stand it.” He stopped at the door, and the deceased then struck at him with his right fist. The defendant said, “Let me alone, or I’ll hurt you, you damned son-of-a-bitch.” The deceased then struck at the defendant again, and the defendant stepped further back into the house. The door is in the east end of the house. The defendant continued to step back, and the deceased to follow him, until both were in the house, about 'ten or twelve feet from the door. Whether the deceased again struck at the defendant, or not, is not shown. What if anything further was said between them, is not shown. There were several persons around them however, and a great deal of confusion ensued. When they got into the house, about ten or twelve feet from the door, the defendant, without further warning, so far as the record shows, stabbed the deceased with a knife, inflicting a mortal wound, from which mortal wound the deceased in a few minutes died. Whether the deceased at any time touched the defendant, is not very clear; but if he did, there was no evidence showing that he hurt or injured him in any respect. Previous to the defendant’s stabbing the deceased, he (the defendant) had his hands in his pockets, or on his hips. Evidently the defendant was in no danger of having his life taken, or of having any great personal inj ury inflicted upon him. And probably he was in no danger of having even an assault and battery committed upon him, if he had avoided the deceased. The deceased simply desired to fight with the defendant"with the weapons that nature gave them; and if the defendant had frankly told the deceased that he would not fight, the deceased would in all probability have let the defendant alone. But the defendant seemed half willing at least to fight. He followed the deceased to the door, and said, “He is trying to run over me, and I will not stand it.” He also said to the deceased, “Let me alone or I’ll hurt you, you damned son-of-a-bitch.” These are not the actions, and this is not the language, of a person who desires peace, and who will not hurt another except in self-defense.
The court below did certainly did not err in limiting the argument of counsel in this case as to time. The facts are few and simple, and the evidence occupies only twenty-three written pages of paper. Four-and-one-half hours of time were certainly sufficient for the defendant’s counsel, in which to comment upon this evidence to the jury.
Neither did the court err to the prejudice of the defendant, in either giving or refusing instructions. The most of the instructions refused, if not all of them, were good-enough law, but the court substantially gave in other instructions all such parts and portions of them as were good law, and applicable to the case.
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
Robb, J.:
In an appeal from the traffic court of the city of Wichita to the district court of Sedgwick county defendant was found guilty by a jury and was sentenced by the trial court for driving an automobile while under the influence of intoxicating liquor in violation of city ordinances. From this conviction, defendant appeals.
All of the specifications of error claimed by defendant in this appeal have been abandoned except one which pertains to the trial court’s instruction No. 3 and. its refusal to give defendant’s requested instruction in lieu thereof.
To maintain some chronological order and clarify the situation presented by this appeal, we shall briefly summarize the pertinent evidence.
On June 22, 1957, during a very hard rainstorm a collision oc curred at the comer of Pattie and Lincoln Streets in Wichita between the vehicle driven by defendant and a police car driven by a laboratory investigator for the police. department. The investigator testified he observed defendant had difficulty in talking, was staggering, and when he exhibited his badge and identified himself, defendant told him he “didn’t care.” On cross-examination the investigator stated he was going south on Pattie and defendant was going east on Lincoln. Another officer called to the scene at 1:15 a. m. noticed that defendant had a very strong odor of alcohol on his breath, he took him to the police station and requested that an alcometer test be run on the defendant. On cross-examination this officer testified that defendant admitted having drunk six ten cent glasses of beer between 10:00 p. m. and midnight on June 21, 1957. Defendant’s speech was difficult to understand but with concentration he could be understood. Defendant had walked to the police car, had walked into the station, and had answered questions. Plaintiff’s testimony as to scientific principles, operation and purpose of the alcometer machine, by legal standards, showed that if a person has 0.15 per cent of alcohol in his breath proportionate to the amount in the blood, it is presumed the person is under the influence of intoxicating beverages.
During the tests defendant, in response to certain questions, stated there was nothing the matter with him; he was not under care of a physician; he had been drinking and had had about twelve ten-cent glasses of beer between 10:00 and midnight on June 21, 1957; he had táken bufferin as “pain pills”; and he had used vinegar as a mouthwash. In the co-ordination tests he had to make two attempts to pick up a penny from the floor; he had difficulty touching the end of his nose with both right and left index fingers while his eyes were closed; his clothing was “dirty and disorderly”; his face was flushed and the pupils of his eyes did not react to light; on the balance test he sagged at the knees, he swayed in walking and turning, and had a very jerky choice of words and poor pronunciation in his speech. The alcometer test of defendant showed 0.30 per cent of alcohol.
Defendant’s evidence showed contradiction as to his being drunk. He took aspirin and bufferin to relieve rheumatism in his knees, arms and shoulders resulting from his occupation as a cement finisher and because his teeth troubled him. He gargled and swallowed vinegar to thin his blood to inoculate himself against cement poison and also because of pyorrhea. His wife said he was crippled and walked wobbly now and then.
Defendant’s requested instruction, which the trial court refused, was as follows:
“There has been evidence presented during the trial of this case as to an alcometer test having been given to the Defendant by the Police Officers of the City of Wichita, Kansas, which is a machine or instrument that purports to register the alcoholic content in a person’s body. The Court instructs you that you are to consider this evidence with all the other evidence in this case; if you find that there has been presented, during the trial of this case, evidence contradicting the report of this alcometer test, then it becomes your duty to decide whether you will believe the evidence that contradicts the alcometer test, or whether you will believe the report of the alcometer test. In other words, you are the sole judges of the credibility of the evidence, and therefore, you may believe or disbelieve the testimony of any witness, or witnesses, or any report or tests given the Defendant as to his sobriety.”
The trial court gave the following instruction No. 3:
“The law provides that, in a case of this kind evidence of the amount of alcohol in the defendant’s blood as shown by chemical analysis of his breath may be admitted. The law also provides that if there was at the time in question 0.15 percent or more' by weight of alcohol in the defendant’s blood, it shall be presumed that the defendant was under the influence of intoxicating liquor.”
The trial court further instructed the jury on the burden of proof, reasonable doubt, and about the weight to be given to the evidence by the jury — all of which are common stock instructions — and only necessary portions will be set out.
Did the trial court err in giving its instruction No. 3 and refusing to give defendant’s requested instruction?
G. S. 1957 Supp. 8-1005, in part, provides:
“. . . or in any prosecution for a violation of city ordinance relating to the driving of a motor vehicle while under the influence of intoxicating liquor, evidence of the amount of alcohol in the defendant’s blood at the time alleged, as shown by chemical analysis of the defendant’s blood, urine, breath or other bodily substance may be admitted, and shall give rise to the following presumptions:
“(b) If there was at that time 0.15 percent or more by weight of alcohol in the defendant’s blood it shall be presumed that the defendant was under the influence of intoxicating liquor.”
G. S. 1957 Supp. 8-1006 provides:
“The foregoing provisions of section 1 [8-1005] shall not be construed as limiting the introduction of any other competent evidence bearing upon the question of whether or not the defendant was under the influence of intoxicating liquor.”
This court approved an instruction in State v. Bailey, 184 Kan. 704, 339 P. 2d 45, which quoted the pertinent portions of the above statutes and then continued as follows:
“This presumption is not conclusive, but may be considered by you along with all the other evidence in the case, and if, upon consideration of all the evidence, you entertain a reasonable doubt as to whether or not the defendant was under the influence of intoxicating liquor, you must not find him guilty.”
Had the trial court so instructed the jury in this case there would be no question that it would have been correct in so doing. Instead the trial court set out in instruction No. 3 only the (b) portion under 8-1005 which, standing alone, may not have been proper. However, our inquiry does not end here for the reason that all of the instructions are abstracted and we find the trial court in its instruction No. 4 stated:
“The burden of proof in a criminal case is always upon the prosecution, and never shifts from the prosecution to the defendant. The defendant is presumed to be innocent until the contrary is proven to your satisfaction beyond a reasonable doubt. . . .
“If, after careful consideration of the entire case, you believe beyond a reasonable doubt that the defendant committed the offense charged, then you should find the defendant guilty. If, on the other hand, you do not believe beyond a reasonable doubt that the defendant committed the offense charged, then you should find the defendant not guilty.”
Further, instruction No. 5 in part reads:
“You are the exclusive judges of all the facts appearing in the case, of the weight of the evidence, and of the credibility of the witnesses. It is for you to decide what weight shall be given to the evidence, and what credit shall be given to the testimony of the various witnesses.”
In the final analysis instruction No. 3 followed the wording of the statute and thus it is not a clear misstatement of the law (State v. Stewart, 179 Kan. 445, 453, 454, 296 P. 2d 1071) and when all of the trial court’s instructions are considered together and in the light of each other, it is apparent that everything stated in defendant’s requested instruction was covered by those given. (Sharp v. Pittsburg Coca Cola Bottling Co., 180 Kan. 845, 850, 308 P. 2d 150.) While we have indicated that we do not recommend instruction No. 3, as given, when compared with the one we approved in State v. Bailey, supra, we are constrained to hold that no reversible error was thereby committed.
In view of all the testimony, it also becomes apparent that defendant has failed to affirmatively show that his substantial rights have been prejudiced. (G. S. 1949, 60-3317.)
Judgment affirmed. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover damages for alleged libel published in defendant’s daily newspaper, The Wichita Beacon.
Plaintiff alleged that from January 24, 1957, to February 4, 1957, the defendant newspaper printed, published and circulated to its 105,000 subscribers certain articles with accompanying headlines and pictures of and concerning him which were libelous, defamatory, malicious and untrue. It was alleged that said articles falsely, maliciously and wrongfully impute that plaintiff, an attorney at law and a judge of the court of common pleas in Sedgwick county, was a criminal, was dishonest, was guilty of misconduct, lacked integrity for pecuniary consideration, and was unfit to serve as a judge; that headlines accompanying the articles were not a fair index for their contents, and that plaintiff’s picture printed in one article posed him with known criminals and persons under investigation and constituted an invasion of his right of privacy. It was further alleged that the false, malicious and wrongful charges and imputations were known by defendant to be false or by the exercise of due diligence should have been so known. Plaintiff then alleged damage and injury to his reputation and profession, physical discomfort, embarrassment and mental suffering, and prayed for compensatory and punitive damages in the total amount of $1,000,000.
Articles alleged to be libelous, exhibits “A” to “P” inclusive, were attached to and made a part of the petition. The articles concerned an investigation by the Wichita police department and the smashing of an organized burglary ring in Wichita in which plaintiff was implicated as gang leader. The initial article, published on January 24, 1957, appeared under a banner headline, reading: “Wichita Judge, Attorney Implicated in Local Burglary Gang, Police Say,” and a two-column wide subheading, reading: “John Stice, Roy Trail to Face State Charges.” The article also carried a three-column subheading, reading: “Named in Police Burglary Probe,” under which were the pictures of the fifteen individuals implicated, including plaintiff’s picture. The body of the article referred to statements attributed to police officers who reported that their informants pointed to plaintiff as the leader of the burglary gang, and contained specific statements to police by an informant member of the gang reporting a conversation overheard between plaintiff and a member of the gang with respect to a “small inner-safe” taken in one of the burglaries, which, when taken into custody by the police later that same day, contained $2,300 in cash and checks; also another statement to police Detective Briggs by a former gang member that the- plaintiff had demanded $1,000 “advance fees” from money believed taken in the Farha Village Food Mart burglary; likewise, a statement by Detective Briggs who cracked the ring, and the statement by police that state burglary warrants would be sought for each member of the gang. The article also contained a statement by the chief of police that Detective Rriggs had com: pleted a commendable piece of work in breaking up the burglary gang and would be cited for his services. Included in the article was a short biographical background of the plaintiff and Roy Trail, who, the article states police said, were the ringleaders of the organized burglary gang.
Subsequent articles contained reports of the continuing investigation by Wichita police and of later developments; of the city manager’s request for the attorney general of Kansas and the Kansas bureau of Investigation to enter the investigation and of their assisting in the case; of items referring to action taken by the attorney general and statements that he intended to push the burglary probe and would investigate the “propriety of actions” on the part of the plaintiff; the arraignment of three of the burglary suspects before the plaintiff as judge of the court of common pleas, who himself was under investigation by local and state law enforcement agencies for his connection with the burglary ring; of the continuance of the probe of the burglary gang and of Detective Rriggs’ statement that some twenty persons were linked with the gang which was responsible for more than twenty burglaries in which an estimated $30,000 had been lost, reference again being made that plaintiff was a part of the burglary gang; that state warrants were expected for the widespread burglary gang; that the parade of suspects in the burglary ring was growing; of the arrest of one Gleason in connection with a $10,000 safe burglery at the Pawnee IGA Market and that the plaintiff was under investigation; further, that Mrs. Justice, whose husband was a Wichita bondsman and the first informant on the gang and who was named by police as a member of the burglary ring, had received telephone calls threatening her life if she did not “shut up” her husband.
Plaintiff filed an amended petition in which he incorporated the allegations of the original petition, following which defendant’s motion to strike and to make definite and certain was sustained in part and overruled in part. In compliance with the court’s order, plaintiff filed an amendment to his amended petition setting forth with particularity the portions of the articles alleged to be untrue, and alleged that exhibits “A” to “P” inclusive “should have been known by the defendant to be untrue.” The defendant moved to strike certain portions of the amendment upon the ground that the material contained in such portions was irrelevant and immaterial, which was sustained in part and overruled in part. Thereafter defendant filed a demurrer to plaintiffs amended petition upon the ground that it did not state facts sufficient to constitute a cause of action against the defendant and in favor of the plaintiff, which was sustained; hence this appeal.
Plaintiff contends that the publications summarized above are libelous per se; that malice of the defendant is therefore implied, and that any defense of privilege must be pleaded by answer. The contention cannot be sustained. Conceding that, as plaintiff asserts, the articles are libelous per se, the question whether a publication is privileged is a question of law to be decided by the court (Stone v. Hutchinson Daily News, 125 Kan. 715, 266 Pac. 78; Faber v. Byrle, 171 Kan. 38, 229 P. 2d 718), and although privilege is a matter of affirmative defense to a libel action, when the petition shows upon its face that the publication was privileged and the ultimate facts of actual malice are not alleged, a demurrer to the petition will lie (Klover v. Rugh, 99 Kan. 752, 162 Pac. 1179; Beyl v. Capper Publications, Inc., 180 Kan. 525, 305 P. 2d 817).
The term “privileged” as applied to a publication alleged to be libelous means simply that the circumstances under which the publication was made are such as to repel the legal inference or presumption of malice, and to place upon the plaintiff the burden of affirmatively pleading and proving its actual existence beyond the mere falsity of the charge (Kirkpatrick v. Eagle Lodge, 26 Kan. 384; Richardson v. Gunby, 88 Kan. 47, 127 Pac. 533). A privileged communication is often divided into two classes: absolute privilege, and conditional or qualified privilege. It has been held that absolute privilege is recognized as applying to cases in which the public service or the administration of justice requires complete immunity as in legislative, executive and judicial proceedings, the occasion for the immunity being not so much for those so engaged as for the promotion of the public welfare (Redgate v. Roush, 61 Kan. 480, 59 Pac. 1050, 48 L. R. A. 236; Marney v. Joseph, 94 Kan. 18, 145 Pac. 822, Ann. Cas. 1917 B 225; Baker v. Haldeman-Julius, 149 Kan. 560, 564, 565, 88 P. 2d 1065; 53 C. J. S., Libel and Slander, § 87, pp. 141, 142; 33 Am. Jur., Libel and Slander, § 125, p. 123).
Generally speaking, qualified privilege exists in a larger number of cases than does absolute privilege. A privileged publication is one made on an occasion which furnishes a prima facie legal excuse for making it unless some additional facts are shown which alter the character of the publication. It comprehends communications made in good faith, without actual malice and with reasonable or probable grounds for believing them to be true. Briefly stated, a qualifiedly privileged publication is a defamatory publication made on what is called an occasion of privilege without actual malice, and as to such publications, there is no civil liability regardless whether the publication is libelous per se or libelous per quod. The fact that a publication is qualifiedly privileged does not change the actionable quality of the words published, although, as previously indicated, such a publication rebuts the inference or presumption of malice and falsity which would otherwise arise as a matter of law, still leaving, however, the party responsible if both falsehood and actual malice are affirmatively pleaded and proved; that is, actual malice is not inferred or presumed from the injurious character of a qualifiedly privileged communication, and the injured party must allege and prove that the statements were made with malice — actual evil-mindedness or specific intent to injure. (Kirkpatrick v. Eagle Lodge, supra; Baker v. Haldeman-Julius, supra; Richardson v. Gunby, supra; Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281, 20 L. R. A. [n. s.] 361; Carver v. Greason, 104 Kan. 96, 177 Pac. 539; Majors v. Seaton, 142 Kan. 274, 46 P. 2d 34; Stone v. Hutchinson Daily News, supra; 53 C. J. S., Libel and Slander, § 89, pp. 143, 144; 33 Am. Jur., Libel and Slander, § 113, p. 115.)
It is well settled in this jurisdiction that newspapers have a qualified privilege to publish as current news all matters involving open violations of the law which justify police interference, and matters in connection with inquiries regarding the commission of crime, even though the publication may reflect on the individuals concerned and tend to bring them into public disgrace, (Beyl v. Capper Publications, Inc., supra, and authorities cited therein). The conditional privilege to publish matters which are of legitimate public concern applies also to information concerning the conduct of a candidate for public office (Coleman v. MacLennan, supra, 130 Am. St. Rep. 390, 20 L. R. A. [n. s.] 361), as well as to publications concerning the conduct of an incumbent public official (Steenson v. Wallace, 144 Kan. 730, 62 P. 2d 907).
In Coleman v. MacLennan, supra, the defendant published an article about the plaintiff, the incumbent attorney general who was a candidate for re-election, concerning his official acts. The article purported to state facts but made comments and drew inferences. It was held that an untrue, derogatory statement published in good faith and without malice with respect to a candidate for public office was not grounds for the plaintiff to recover damages. In Steenson v. Wallace, supra, it was said:
“. . . The publisher had precisely the same conditional privilege to inform the public of conduct of the county attorney as a public officer that he would have had if plaintiff had been merely a candidate for office, and it would be a strange rule which would limit a newspaper to exposing conduct merely deserving of censure, but not criminal.” (1. c. 734.)
In the instant case the subject of the articles was a public official, and so much of his private character as affects his fitness for public office is subject to a wider latitude of public scrutiny and discussion than that of a private citizen. The articles about which plaintiff most vigorously objects were obviously news stories based upon interviews of police officials and reports of the police department concerning the operation of a burglary ring in Sedgwick and adjoining counties. There is no question but that the articles, when considered in their entirety, indicate they were “open violations of law justifying police interference,” and concerned “matters in connection with and in aid of the prosecution of inquiries regarding the commission of crime.” AH of the exhibits attached to the petition make that obvious. Whether plaintiff was involved is immaterial for present purposes. While the articles concerned plaintiff's conduct and involved matters in connection with inquiries regarding the commission .of crime with which he was reportedly connected, those articles were based upon information obtained from the police department and other investigation agencies and from various public officials who had a legitimate concern with the matters under investigation. Indeed, excerpts from specific statements contained in the articles were directly attributed to statements from the police department — for instance, “police say,” “detective said,” “Briggs (a detective) said,” “named as,” “police investigation has revealed,” “implicated by police investigation,” “detectives disclosed,” “investigations are continuing,” “according to the police evidence,” “according to Detective Briggs” and “under investigation by law enforcement officials.” Moreover, exhibits G, I, N and P are news items referring directly to statements and acts of the attorney general in connection with his investigation of the burglary ring. In our opinion, the petition and exhibits clearly show upon their face that the publications complained of fall within the rule announced in Beyl v. Capper Publications, Inc., supra, and were qualifiedly privileged.
The remaining question is whether plaintiff’s amended petition alleges actual malice — evil-mindedness, or intent to harm on the part of the defendant. Giving the allegations of the amended petition all inferences to which they are entitled, we conclude that it does not. Although plaintiff alleged several times the articles were printed and published “maliciously” and “wrongfully” there are no factual allegations of actual malice or evil-mindedness with intention to harm. Malice is merely a conclusion of law which is based upon facts. Standing alone, allegations of “maliciously” and “wrongfully” are mere conclusions. Where a petition in a libel action discloses facts constituting a qualified privilege thus necessitating the pleading of actual malice to render such a communication actionable, it has been held that a mere averment that the words printed or published were malicious, is not sufficient (53 C. J. S., Libel and Slander, § 166b, p. 262). The use of denunciatory adverbs such as “maliciously” and “wrongfully” will not suffice to plead a cause of action where the petition discloses facts constituting a qualified privilege. To withstand a demurrer, the plaintiff must allege the ultimate facts constituting actual malice. It is not sufficient that a fact may be inferable from the facts alleged, where it is not implied (Ladd v. Nystol, 63 Kan. 23, Syl. ¶ 1, 64 Pac. 985; Dowell v. Railway Co., 83 Kan. 562, Syl. ¶ 4, 112 Pac. 136; Brane v. First National Bank, 137 Kan. 403, 404, 20 P. 2d 506; Smith v. Bridgeport Machine Co., 151 Kan. 444, 100 P. 2d 65; Snyder v. McDowell, 166 Kan. 624, 203 P. 2d 225; Bishop v. Sewer District No. 1,184 Kan. 376, 383, 336 P. 2d 815).
The allegations in the amendment to the amended petition that the specific statements relied upon were untrue and should have been known by the defendant to be untrue, do not change this conclusion. However, under proper allegations, a newspaper may be charged with libel where, as here, the petition discloses upon its face that the publication was qualifiedly privileged when the ultimate facts constituting actual malice, evil-mindedness, or a wicked purpose to injure the plaintiff are fully alleged, but, they were not so alleged in plaintiff’s amended petition.
Furthermore, we cannot say the headlines accompanying the articles were not a fair index of their contents, and the court is obliged to say the headlines did not exaggerate the character of conduct described in the articles (Steenson v. Wallace, supra). If they did, mere exaggeration would not show express malice and prevent defendant from enterposing the defense of qualified privilege (Carver v. Greason, supra).
Finally, plaintiff alleged that his picture published in the first article violated his right of privacy. During argument of this appeal counsel stated plaintiff makes no contention of violation of his right of privacy, consequently, that allegation is considered as abandoned.
The conclusions heretofore announced require the holding that plaintiff’s amended petition and the amendment thereto did not state a cause of action in favor of the plaintiff and against the defendant, and the trial court did not err in sustaining the defendant’s demurrer.
The judgment is affirmed. | [
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The opinion of the court was delivered by
. Fatzer, J.;
On September 15, 1954, the action out of which this appeal arises was commenced in the district court of Johnson County, Kansas, by Albert Gaynes and Rose Gaynes against Al J.. Conn and Martha Conn on an Illinois judgment. Personal service of summons was had upon the Conns and on October 27, 1954, judgment was rendered in favor of the Gaynes in the sum of $6,295.39.
On November 4, 1954, execution was issued upon the Gaynes judgment and returned on November 9, 1954, with the endorsement that no property could be found. Proceedings in aid of execution were commenced (G. S. 1949, 60-3485 et seq.), and Conn appeared personally before the court and testified he owned a one sixth interest in a one-acre tract in the northeast corner of the southeast quarter (SE K) of Section 36, Township 13, Range 24, Johnson County, Kansas, together with improvements thereon. As is later developed in the opinion, this is the property in controversy.
In the course of Conn’s examination, it developed that other lien-holders and judgment creditors claimed an interest in the one-acre tract and the court ordered that an impleading petition be filed and that all creditors, lienholders and those claiming an interest in the property be impleaded as parties defendant in the action. Personal service of summons or service of summons by publication was obtained upon all the impleaded defendants. Counsel for Al J. Conn and Martha Conn filed an application to set aside the property in question as a homestead, and later filed an answer in the proceeding.
Various judgment creditors, lienholders and others claiming an interest in the real property filed answers or otherwise pleaded to the impleading petition, among which were the Mid-City National Bank of Chicago, Chicago, Illinois, and the appellees, V. E. Peterson, Elmer Fleming also known as Elmer Flaming, Eddie Botterman, W. Lee Sanders and Florence Glitzke.
In its answer, the Mid-City National Bank of Chicago alleged it had obtained a judgment in the district court of Johnson' County, Kansas, against Al J. Conn on November 9, 1954, in the sum- of $2,417.46, which lien was prior in right to any claim of the plaintiffs Gaynes, or to the claim of any intervening or impleaded defendants, including that asserted by Peterson, Fleming, Botterman, Sanders and Glitzke individually and on behalf of the LaSalle Real Estate Holding Company, a co-partnership, hereafter referred to. The bank’s answer predicated the priority of its lien upon the fact that its action against Conn was commenced on May 13, 1954, upon which personal service had been obtained, and that its judgment,it claimed, became a lien upon the property in question on September 2, 1954, the first day of the September 1954 term of the district court, and that execution had been issued on November 9,1954, and returned unsatisfied that same day.
V. E. Peterson, Elmer Fleming, Eddie Botterman, W. Lee Sanders and Florence Glitzke filed an amended answer and amended cross-petition to the impleading petition. -The amended answer alleged that the one-acre tract, together with' the improvements thereon, was owned by the LaSalle Real Estate Holding Company, a co-partnership of Johnson County, Kansas, consisting of Al J. Conn, V. E. Peterson, Elmer Fleming, Eddie Botterman, W. Lee Sanders and Florence Glitzke, each of said partners being a partner to the extent of a one sixth interest therein; that the one-acre tract was owned by the partnership in fee simple, free and clear of any claims of the plaintiffs Gaynes or any of the other defendants, and that they were entitled to a. judgment quieting the title of the LaSalle Real Estate Holding Company against the claims of plaintiffs and all other defendants. For their amended cross-petition against Al J. Conn, the plaintiffs Gaynes, and all other defendants, the partners other than Conn, individually and as the partnership, alleged that Conn, as one of the partners, was indebted to the partnership for rent of the property in question for a period of 30 months at $400 per month, and that Conn’s interest should be impressed with an equitable lien to the extent of $12,000, such lien to be prior to any claim of Conn, his creditors or assigns. Other allegations concerned liens claimed by the United States of America which were alleged to be junior, inferior and subsequent to the claim and lien of the partnership, but, not being here material, no further reference to them is made.
The appellant, Earle G. Wallingford, replied to the amended answer and amended cross-petition of the partnership and members of the partnership individually, and alleged that the Mid-City National Bank of Chicago, for a valuable consideration, sold and assigned to him its judgment against Al J. Conn; that such judgment was a prior lien against all impleaded defendants, as alleged in the bank’s answer, the allegations of which were adopted and affirmed by him. The reply further denied the new matters alleged, and also contained a demurrer upon various grounds, which presents nothing for appellate review, since the notice of appeal particularly specified the orders from which the appeal was made, but did not include the order overruling the demurrer to the amended answer and amended cross-petition (Nicholas v. Latham, 179 Kan. 348, 295 P. 2d 631; Dryden v. Rogers, 181 Kan. 154, 156, 309 P. 2d 409; Jeffers v. Jeffers, 181 Kan. 515, 517, 313 P. 2d 233).
The action was tried to the court. Over the objection of Walling-ford, Fleming and Peterson testified individually and on behalf of the LaSalle Real Estate Holding Company to facts which, if believed by the court, would support the allegations contained in the amended answer and amended cross-petition and further, that the partnership was indebted to various persons including Gertrude Hett for $10,000, Signa Anderson for $3,000, Emma McDowell for $10,000, and certain partners in the following amounts: E. W. Fleming $6,350, W. Lee Sanders $1,375, Eddie Botterman $480, and V. E. Peterson $2,611; further, that the sole assets of the partnership consisted of the equity in the property, and the $12,000 which Conn owed.
At the conclusion of the cross-petitioners’ evidence, Wallingford demurred upon the grounds that the court had no jurisdiction to adjudicate the debts of the partnership without notice to all other parties, particularly when some of its creditors were not parties to the action, and that the cause of action against Conn for unpaid rent was barred by the statute of limitations, which was overruled by the court.
The court made full findings of fact upon the evidence, conclusions of law therefrom, and entered a decree fully adjudicating and determining the interest of all parties in the property and the priority of the liens thereon. It found generally in favor of the partnership and the individual partners other than Conn; it found specifically that all intervening and impleaded defendants were necessary parties to a decision of the controversy and that it had jurisdiction of all parties to determine their rights to the one-acre tract; that neither of the Conns had homestead rights therein; that the LaSalle Real Estate Holding Company was a partnership, and the six named partners each owned a one-sixth interest; that the partnership owed the following amounts to the following persons: E. W. Fleming $6,350, Signa Anderson $3,000, Emma McDowell $10,000, G. Hett $10,000, Eddie Botterman $480 and V. E. Peterson $2,600; that Conn was indebted to the LaSalle Real Estate Holding Company in the amount of $12,000 for 30 months rent for his individual use of the building on the one-acre tract, and that the partnership had an equitable lien on his interest in the assets of the partnership to secure payment of the $12,000, which was paramount as to all parties to the lawsuit, except ad valorem taxes, and certain mortgage liens.
The court further found that the partners were entitled to have the assets of the partnership first applied to partnership debts, and that the proceeds from the sale of the one-acre tract be applied in the following order: costs of the suit; ad valorem taxes due thereon; judgments obtained in foreclosing mortgage liens; debts of the partnership; and the balance, if any, to be distributed one sixth each to Peterson, Fleming, Botterman, Sanders, Glitzke, and the one sixth belonging to Conn be paid to the five named partners to the extent of $10,000; further, the balance, if any, after such payments, to be applied to Wallingford’s lien, which was placed at the top of a list of 18 other judgment creditors and lienholders established by the court in determining priority of payment of the other parties’ claims. The court rendered judgment in harmony with its findings, and Wallingford perfected this appeal.
As preliminary, we think the court properly required the plaintiffs to interplead all defendants who had, or claimed to have, an interest in the one-acre tract and once.the jurisdiction of the court attached to the parties and the subject matter, it attached for all purposes in determining the rights of the parties in the real estate. The intent of the Code of Civil Procedure requires that so far as possible, all controversies concerning a particular subject matter shall be concluded by one proceeding, and G. S. 1949, 60-416 makes it the duty of the court, on its own motion, to require the bringing in of any person whose rights will be prejudiced by judgment, and where that is not done a reversal may be had at the instance of a party aggrieved (McFadden v. McFadden, 174 Kan. 533, 257 P. 2d 146; 175 Kan. 372, 264 P. 2d 920; 179 Kan. 455, 296 P. 2d 1098). A court of equity, such as the court below was sitting in the proceeding in aid of execution, once having assumed jurisdiction of a subject matter will reach out and draw into its consideration and determination the entire subject matter and bring before it the parties interested therein, so that a full, complete, effectual and final decree adjusting the rights and equities of all the parties in interest may be entered and enforced (Kiser v. Sawyer, 4 Kan. 503; Hazen v. Webb, 65 Kan. 38, 68 Pac. 1096; Fry v. Dewees, 151 Kan. 488, 494, 99 P. 2d 844; and cases cited; Gillet v. Powell, 174 Kan. 88, 93, 254 P. 2d 258; Breidenthal v. Breidenthal, 182 Kan. 23, 29, 30, 318 P; 2d 981); see, also, Das. Kan. Civ.. Code Ann., 2 ed., p. 163.
The appellant principally complains of the overruling of his demurrer to the evidence, the admission of evidence of partnership indebtedness and of Conn’s indebtedness to the partnership. Roth contentions go to the general proposition whether a court of equity, in determining an individual partner’s interest in partnership assets, must first ascertain and adjudicate partnership indebtedness and settle accounts between the partners. Upon this point depends the decision in this case.
We do not deem it- essential to review the evidence, but suffice it-to say there was substantial competent; undisputed evidence to sustain the court’s findings. The claim is made that Fleming and Peterson were incompetent to testify as to the indebtedness owed by the partnership. The contention is not meritorious. The partners, assuming they were cognizant of the affairs of the partnership, would possess the peculiar knowledge of its financial status and would be competent to testify as to its assets and liabilities (68 C. J. S., Partnership, §§432, 433, pp. 969-974).. The authorities hold that the party who has-the affirmative of an issue raised in an action for a partnership accounting has the burden of proof with respect thereto; but in carrying such burden he may have.the benefit of proper presumptions (68 C. J. S., Partnership, §428, p. 962; 2 Bates, Law of Partnership, § 978, et seq., pp. 993-1000). In the instant case the court believed the testimony of the partners. Although the appellant objected to that testimony, the witnesses were competent to testify, and the weight and sufficiency of the evidence was for the consideration 'of the trial court, and not this court on appellate review (5 Hatcher’s Kansas Digest [Rev. Ed.], Trial, § 178, p. 331). It is also claimed that Conn’s indebtedness for rent was not established by the best evidence; that parol testimony was offered to prove the terms of the written rental contract when the contract itself would have been the best evidence. ■ The short answer to the contention is that the appellant made no objection to the testimony as not being the best evidence, of that it was hearsay as to the appellant, and made no motion to strike the evidence for those reasons. Under such circumstances, the objection comes too late when it is first made on appellate review (Long v. Lozier-Broderick & Gordon, 158 Kan. 400, 147 P. 2d 705).
The issue is thus sharply presented whether the appellant’s judgment lien against Conn’s interest in the partnership assets entitled him to satisfaction prior to partnership creditors, and a settlement of accounts between the partners. The trial court concluded he was not, and we think that decision was correct.
Where — as here — the affairs of a partnership are unsettled and its assets are in the course of administration by a court of equity for the purpose of ascertaining the interest of an individual partner, our decisions are uniform in holding that partnership assets must first be applied to the payment of partnership debts. The corpus of the assets is partnership property, and neither partner separately has anything in that corpus; the interest of each is only his share of what remains after partnership debts are paid and all accounts are settled. The rule rests upon the equities of the partners as between each other, since each partner is entitled to' regard partnership property as held for his indemnity as against partnership debts, and as security for the ultimate balance which may be due him for his own share of partnership assets. In order to secure a proper division of the surplus assets, if any, he has a right to have whatever may be due to the firm from his co-partners deducted from' what would otherwise be payable to them. In other words, each partner may be said to have an equitable lien on the partnership property for the purpose of having it applied in discharge of the debts of the firm, and to have a similar lien on the surplus assets, if any, to have them applied in payment of whatever may be due to the partners respectively, after deducting whatever indebtedness they may owe the firm as partners. Some of our many decisions on this point are: Glass Co. v. Ludlum, 8 Kan. 40, 50, 51; Fullam & Co. v. Abrahams, 29 Kan. 725; Aldridge v. Elerick, 1 Kan. App. 306, 41 Pac. 199; Kincaid v. Wall-paper Co., 63 Kan. 288, 290, 65 Pac. 247; Jones v. Way, 78 Kan. 535, 97 Pac. 437; Neiswanger v. Ord, 81 Kan. 63, 65, 105 Pac. 17; Bank v. Schuetz, 103 Kan. 229, 173 Pac. 278; Farney v. Hauser, 109 Kan. 75, 79, 198 Pac. 178; Lawson v. Lawrence Oil and Gas Co., 135 Kan. 740, 743, 12 P. 2d 711; Campbell v. Bohan, 148 Kan. 205, 207, 80 P. 2d 1110; Plains State Bank v. Ellis, 175 Kan. 261, 268, 263 P. 2d 254; Williams v. Smith, 178 Kan. 434, 437, 289 P. 2d 1059. See, also, Trickett v. Moore, 34 Kan. 755, 10 Pac. 147; Bank v. Lemley, 105 Kan. 15, 180 Pac. 238; New York Commercial Co. v. Francis, 101 Fed. 16, 18; Clagett v. Kilbourne, 66 U. S. 346, 17 L. ed. 213; Rights of Creditors in Partnership Assets, Vol. 3, Journal, Bar Assn, of Kansas, p. 283; 1 Rowley, Modern Law of Partnership, §§ 371, 525, 536, pp. 441, 663, 688; 40 Am. Jur., §§ 404, 406, pp. 406, 408; 2 Kent’s Com., 11th ed., p. 78, note.
In Kincaid v. Wall-paper Co., supra, it was said:
“. . . The partners themselves have an equity in the partnership property to compel its appropriation to the payment of partnership debts, as against the debts of the individual members of the firm, and to this equity the partnership creditors succeed in cases and under circumstances which will enable them to enforce it, and that ordinarily, if not always, is when the partnership is in the control of the court, and its assets are in the course of administration by the court, either through the bankruptcy of the firm, or the creation of a trust in some mode.” (1. c. 290.)
In Campbell v. Bohan, supra, it was said:
“. . . While a partnership has no existence separate and apart from the members which compose it, it is nevertheless an entity as to all matters germane to its interests or affairs. It has its own capital, its own assets and liabilities. In other words, the partnership estate is separate and distinct from the individual estates of its members. . . .” (1. c. 207.)
In Bank v. Schuetz, supra, it was held:
“1. Partnership — Garnishment—Rights of Creditors of Individual Partners. Although the assets of a firm are to be applied in paying its debts to outsiders before either partner is to receive any portion thereof, the individual creditors of a partner are not entitled to the same priority. They have a right to his individual interest only, and this is his share of what may remain after payment of the partnership debts, and after a settlement of the accounts between the partners.
“2. Same — Garnishment—Creditors of Individual Partner — What Property May he Reached. Where, in an action against an individual partner, the funds of the firm are garnisheed, the plaintiff acquires by his garnishment an interest only to the extent of the share of the debtor, which is his interest in the balance which remains after the firm’s debts and the equities of partners are satisfied; and, further, where in such an action the court has before it all the parties claiming an interest in the fund, it is proper to take an account of the partnership affairs.”
In Plains State Batik v. Ellis, supra, it was said:
“. . . the rule is that a creditor of an individual partner may not look to partnership assets in satisfaction of his demand until the partnership estate is settled. . . .” (1. c. 268.)
The cross-petition of the appellees was tried as one for an accounting and final settlement of the partnership affairs, and it was upon that accounting that various firm creditors were found to exist. It follows from what has been said and held that those creditors had the right to have the partnership assets (the proceeds from the one-acre tract) applied to the payment of their partnership debts before the appellant, as a creditor of one of the individual partners, could acquire the right to any of such assets for the payment of his judgment lien. The fact that the property in the instant case consisted of real estate does not change the principle of law governing the ultimate rights and interests concerned. Real property belonging to the partnership is treated in equity as part of the partnership fund, and is disposed of and distributed the same as the personal assets (Tenney v. Simpson, 37 Kan. 353, 363, 15 Pac. 187; Sternberg v. Larkin, 58 Kan. 201, 205, 48 Pac. 861; Clagett v. Kilbourne, 66 U. S. 346, 17 L. Ed. 213; 68 C. J. S., Partnership, § 73, p. 512). We think the appellant acquired no lien upon the partnership real estate. That property was the sole asset of the partnership, and, as we have seen, was liable to payment of firm debts and the settlement of accounts between the partners before Conn’s interest could be ascertained and subjected to the appellant’s claim. We do not intend to infer that Conn’s interest might not have been sold on execution, but had that been done, the purchaser would have acquired only the extent of his unascertained interest in the firm assets, subject to the payment of the firm debts and settlement of all accounts (68 C. J. S., Partnership, § 240, p. 737; 40 Am. Jur., Partnership, § 455, p. 447; 3 Kent’s Com., 11th ed., p. 76).
It follows from what has been said that the court did not err in settling the accounts between Conn and the five named partners and ordering the balance df-his interest, if any, after payment of partnership debts, to be paid equally to them to the extent of $10,000. Neither do we think that because two creditors of the partnership, Signa Anderson and Emma McDowell, were not made parties to the action by the impleading petition, precluded the court from ascertaining the amount due to them, as well as the other creditors. The court was first required to ascertain the creditors of the partnership. That it did. The evidence satisfied the court of the validity of the claims asserted, and we think it sufficient to support the finding that the various debts found to exist were valid partnership obligations.
The contention is made that the partnership claim against Conn for unpaid rent was barred by the statute of limitations. The point is not well taken. The evidence showed that either in July or August, 1953, Conn leased the building from the partnership for one year and thereafter on a month-to-month basis. This, court has consistently held that neither the statute of non-claims, nor the statute of limitation is available to one of the parties to bar an appropriate accounting of a partnership before the amount due, as between the partners, is ascertained (Carr v. Catlin, 13 Kan. 393, 407; Brooks v. Campbell, 97 Kan. 208, 155 Pac. 41; Finley v. Gilmore, 107 Kan. 349, 191 Pac. 256; Clark v. Moffett, 136 Kan. 711, 18 P. 2d 555; Burris v. Burris, 140 Kan. 208, 214, 34 P. 2d 127, 96 A. L. R. 432. See, also, 40 Am. Jur., Partnership, § 333, p. 364). In the instant case the amount due was first ascertained by the judgment of July 25, 1958.
In view of the foregoing, the court did not err in overruling the appellant’s demurrer to the evidence or in concluding that he-may look only to Conn’s share of what remains after payment of firm debts and settlement of all accounts. The appellant’s lien has been fully protected and his priority of payment was determined in accordance with law.
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment of the district court construing the terms of a testamentary trust and providing for the distribution of its funds.
In a preliminary way, noting as we do that the family relationships involved in this appeal are somewhat complicated, it is perhaps advisable at this point to set out these relationships in detail in order that future readers may have a clear and concise picture of the degrees of relationship indigenous to this appeal. The facts necessary to a proper understanding of the case itself, as well as a determination of the issues therein involved, are not in dispute and were in fact stipulated in the district court.
John A. Randall, a resident of Harvey County, and a bachelor died testate many years ago. Although he left no issue, he did leave several collateral heirs, whose relationship to him will now be stated.
The deceased testator had one sister, Ann Randall Little and three brothers, Charles, D. V., and George Randall. Ann predeceased John and left five children — M. Kate Little, E. G. Little, Anna L. Fulmer, Alice R. Shaffer and A. R. Little. All of Ann Little’s children except A. R. Little are deceased and only one child, Anna L. Fulmer left surviving issue; namely, Dorothy Chichester, Robert Fulmer and Alice Wharton. The last three indi-, viduals, along with A. R. Little and W. E. Regier, as Trustee, are named appellees to this appeal.
Charles Randall died prior to John A. Randall leaving no issue. ■
D. V. Randall died and left three children, John L. Randall, Mary Strueby and Jennie E. Randall. Of these Jennie died leaving no issue. However, John and Mary survive and join as appellants in this appeal.
George Randall died leaving one son, George C. Randall, who subsequently died, leaving two children, Charlotte McElfresh and Searle Randall. These children also join as appellants in this appeal.
John A. Randall, the deceased testator, left a will which was duly admitted to probate and administered according to law. Summarized as to content, except as otherwise indicated, such will discloses that the first three paragraphs thereof provided for the usual dispositive provisions concerning funeral and last sickness expenses. George Randall, a brother received the income from a sum certain and at his death, the principal passed in equal shares to a college and hospital. D. V. Randall received an outright sum of money.
Paragraph four provided that A. R. Little receive the sum of $2,500.
Paragraph five bequeathed $1,000 each to M. K. Little, Anna L. Fulmer, E. G. Little, George C. Randall and Alice R. Shaffer.
Paragraphs six and seven provided for distribution of certain sums, not here involved.
Paragraph eight of the will is important in that it not only serves as the basis of the present controversy but also because the final interpretation of its terms will determine the disposition to be made of this appeal. For that reason, it will be quoted in part where necessary:
“Eighth. After paying the above named legacies, debts, expenses and complying with the foregoing provisions, I give, devise, and bequeath the balance, residue, and remainder of my estate as follows:” (Herein it is specified that M. K. Little, Anna Fulmer, and E. G. Little are to each receive a one-eighth portion of such remainder and D. V. Randall to receive a three-eights portion of such remainder.)
Following this distribution, two trusts were created. The first trust provided that George C. Randall was to have the use and benefit of the income from a one-eighth portion of the remainder during his lifetime. His wife also was to enjoy its use during her lifetime should she survive him. Upon the death of both parties, the principal one-eighth was to be paid over to their children in equal shares, any grandchildren taking the parents share. In passing it is to be noted that this particular1 trust has been consummated by payment of the principal to appellants Charlotte McElfresh and Searle Randall.
The second trust reads:
“I direct that the remaining one eighth portion of my said estate be set apart for the use and benefit of Alice B. Shaffer, of Granville, Ohio, same to be disposed of and paid out by my executors as follows: The said Alice B. Shaffer, shall have paid to her during her natural life the interest or income from the said one eighth portion of said residue of my estate and at her death should she leave children surviving her, then the said principal sum upon which said Alice B. Shaffer received the income, shall be paid over and given to such children, any grandchildren taking a deceased parents share. In the event that the said Alice B. Shaffer should die without issue, I direct that the said one eighth portion as aforesaid be paid to the sisters and brother of said Alice B. Shaffer, as follows: M. K. Little, Anna L. Fulmer, and E. G. Little, they to share and share alike . . .”
The remaining portions of the will are unimportant for present purposes except to note that W. E. Regier was named and is now the successor trustee.
On September 4, 1957, W. E. Regier, as successor trustee, filed what is denominated in the record as “Trustee’s Final Accounting and Petition for Construction of Testamentary Trust.” He alleged that the estate of John A. Randall had been duly administered and that upon final settlement of said estate, pursuant to the terms of a trust created by the will, certain property had been assigned to the then testamentary trustees of which he was successor trustee; that under paragraph eight of the will, trust estates were created in favor of George C. Randall and Alice B. Shaffer. Further, the trust in favor of George C. Randall terminated with his death and the assets of that trust had been distributed; that Alice B. Shaffer died on July 15, 1957, thus the trust in her favor had terminated and the court should determine the persons entitled to receive the assets of said trust under the provisions of the testator’s will.
The petition also alleged and set out the names and addresses of the alleged heirs of John A. Randall and further alleged that under the provisions of paragraph eight, the remainder estates of the named brother and sisters were contingent upon the life tenant, Alice B. Shaffer leaving no issue and therefore, such remainder estates were contingent and not vested; that the named brother and sisters predeceased the life tenant and therefore their remainder interest has lapsed and the assets of the trust should be assigned and distributed as follows: A. R. Little, John L. Randall, Mary Strueby, Charlotte McElfresh, and Searle Randall, each to receive a one-sixth and Robert Fulmer, Dorothy Chichester and Alice Wharton each to receive a one-eighteenth interest.
All parties deemed necessary to the outcome of the trial were duly notified and accorded constructive service except two of the alleged heirs, John L. Randall and Mary Strueby upon whom personal service was obtained.
On November 12, 1957, John L. Randall, Mary Strueby, Searle Randall and Charlotte McElfresh filed an instrument denominated “Defense to Petition of Trustee.” Therein, among other things, they alleged the various family relationships and in general reaffirmed and adopted most if not all of the portions of the petition filed by W. E. Regier, successor trustee.
On March 27, 1958, Alice Wharton, Dorothy Chichester and Robert Fulmer filed an answer to the trustee’s petition and in substance alleged their family relationship; admitted Alice B. Shaffer’s death and that she had no issue; asserted that M. K. Little, Anna L. Fulmer and E. G. Little predeceased her; and expressly denied that the remainder interest has now lapsed and the assets of the trust estate should be assigned and distributed to the heirs-at-law of John A. Randall, deceased.
The cause proceeded to trial on stipulated facts and on October 29, 1958, a journal entry was filed in the district court announcing the result of the trial.
Highly summarized the district court noted: The presence either personally or by their attorneys of all parties concerned except “that A. R. Little is in default for want of answer or other pleading”; it was agreed that the hearing on the trustee’s final accounts should be deferred pending the outcome of the action; that the trustee was taking no position in the case but that his petition was presented to permit the court to make proper distribution of the trust estate in question; all parties present stipulated that the will should be admitted in evidence and that the controversy arose over paragraph eight (setting it out) of the will; that the various family relationships were enumerated substantially as they appear elsewhere in this opinion; that A. R. Little is still living but has made no appearance; and that the sole question for determination is “Who are the persons entitled to the residue of the above-mentioned trust created by the provisions of the Last Will and Testament of John A. Randall, deceased?”
Thereupon, after considering the facts, provisions of the will and arguments and briefs of the parties, the district court announced its findings. Without repeating each and every finding and in so far as is necessary to a proper understanding of the circumstances surrounding the ruling and decision of the trial court, it suffices to say such tribunal found:
“That John A. Randall, deceased, did not die intestate as to any part or portion of his property or estate; on the contrary, he disposed of every part and portion thereof by the various terms and conditions of his Last Will and Testament.
“That John A. Randall, deceased, who created the trust in question, deliberately and intentionally excluded A. R. Little from any rights or benefits in and to the trust estate; A. R. Little is still living. (The Testator did, however, make specific provisions for the said A. R. Little by Paragraph Fourth of his will.)
“That by the terms and provisions of the trust instrument, John A. Randall intended to and did:
“(a) Make provision for Alice B. Shaffer for her lifetime.
“(b) Vest the residue of the trust estate in the class consisting of certain of the life tenant’s brothers and sisters, to wit: M. K. Little, Anna L. Fulmer, E. G. Little (excluding from said class, however, the remaining brother, to wit: A. R. Little), subject to the life estate in favor of Alice B. Shaffer and conditioned upon failure of children of the said Alice B. Shaffer. Surviving issue of any member of said class to take the share of their deceased parent.
“That Robert Fulmer, Dorothy Chichester, and Alice Wharton, being the sole surviving issue of said class, are the sole beneficiaries of the trust and take share and share alike.”
The court then decreed that Robert Fulmer, Dorothy Chichester, and Alice Wharton should be, and are adjudged the sole beneficiaries of the trust estate, share and share alike and that the trustee, pending approval of his final account, distribute the remainder of the trust property to the above named individuals in shares of one-third each.
Thereupon, appellants duly perfected the instant appeal.
Refore turning to the merits it should be stated that resort to the will and what has been stated in the preceding factual statement lead to the inescapable conclusion that John A. Randall attempted to make certain that he disposed of all of his property under the terms of the will and had no intention whatsoever to die intestate as to any part or portion thereof. That this is so is amply demonstrated by the fact that, having ordered the remainder of his estate be converted into cash by his executors after payment of specific bequests, he then, under the residuary clause of the will (Paragraph Eight), divided the remainder of such estate into eight equal parts and directed division of such remainder to residuary legatees on that basis.
In passing it is interesting to note that seven of the eight remainder interests carved out of the residuary estate by the testator, including the trust of George C. Randall, have now, if not long since, been paid by the trustee to the respective remaindermen named in the will.
Thus we come to what the trial court held, with which we agree, is the all-decisive issue involved in this controversy. Who are the persons entitled to the residue of what we have heretofore denominated as the “second trust” (created by Paragraph Eight) of the will? Pertinent portions of such trust have been heretofore quoted and need not be repeated.
Without laboring the point it may be said that the question just stated calls for a construction of the will itself to determine what disposition the testator made of the residual one-eighth of the property disposed of under the residuary clause of that instrument.
This, since we have no difficulty in concluding the terms of the second trust are ambiguous, requires that we construe the entire will in the light of rules long since established by this court in cases where the terms and provisions of other wills have been regarded as indefinite and uncertain. For that reason, without attempting to exhaust the field, we shall make brief reference to just a few of our many decisions where the rules of construction applicable under conditions and circumstances such as are here involved are stated, discussed and applied.
In Hawkins v. Hansen, 92 Kan. 73, 139 Pac. 1022, we held:
“The rules of construction applied to wills by this court in numerous cases recognize that each will must be construed by its own terms, and that where there is any ambiguity in the language the court must, as far as possible, put itself in the position of the testator, taking into consideration all the circumstances under which the will was executed, the condition of the testator’s family and his estate, and from all the facts and circumstances find what his intention was. (Safe Deposit Co. v. Stick, 61 Kan. 474, 59 Pac. 1082; Hurst v. Weaver, 75 Kan. 758, 762, 90 Pac. 297.)” (Syl. f 1.)
To the same effect is In re Estate of Hauck, 170 Kan. 116, 223 P. 2d 707, holding that:
“Where construction of a will is necessary the court must put itself in the situation of the testator when he made his will and from a consideration of the language used in the entire will determine as best it can the intention he endeavored to convey, the cardinal rule being that the intention of the testator as gathered from the whole will must control unless contrary to settled rules of law.” (Syl. ¶ 3.)
See, also, Beall v. Hardie, 177 Kan. 353, 279 P. 2d 276, a recent declaration respecting the paramount rule for construction of wills, where, repeating and reapproving the principle announced in the early case of Brown v. Brown, 101 Kan. 335, 166 Pac. 499, we held:
“A rule for the construction of wills, to which all other rules are subordinate, is that the intention of the testator, as garnered from all parts of the will is to be given effect, and that doubtful or inaccurate expressions in the 'will shall not override the obvious intention of the testator.” (Syl. f 1.)
And in the opinion stated:
“. . . In construing a will, the court must put itself as nearly as possible in the situation of the testator when he made the will and from a consideration of that situation and from the language used in every part of the will, determine as best it can the purpose of the testator and the intentions he endeavored to convey by the language used. (Lawrence National Bank v. Shirk, 173 Kan. 76, 244 P. 2d 179; 5 Hatcher’s Kansas Digest [Rev. Ed.], Wills, § 101; West’s Kansas Digest, Wills §§ 439, 440 and 441.)” (P. 356.)
For more recent decisions of like import see In re Estate of Dobrovolny, 182 Kan. 138, 141, 142, 318 P. 2d 1053; In re Estate of Blank, 182 Kan. 426, 431, 432, 320 P. 2d 775; In re Estate of Yetter, 183 Kan. 340, Syl. ¶ 2, 328 P. 2d 738; and authorities there cited.
Keeping in mind that the will must be construed by its own terms and when ambiguous in accord with the intention of the particular person executing it, we see no necessity for prolonging this opinion by an extended statement of reasons responsible for the conclusions we have reached regarding the construction to be given the will now under consideration. It suffices to say the court has placed itself as nearly as possible in the situation of the testator when he made the will, examined that instrument on the basis of his intention at the time of making it and, after doing so, is satisfied that the terms thereof disclose (1) that John A. Randall did not intend to die intestate as to any part of his property; (2) that, after payment of specific bequests, and except as to A. R. Little, the general scheme or intended purpose of his will was to give equal shares of the remainder of his property to the respective branches of his family, stemming from his brothers and sister (Ann Randall Little, D. V. Randall and George Randall), in accord with the number of the then living children of each such brother and sister; (3) that, for reasons best known to himself, he intended to and did exclude A. R. Little from the branch of the family stemming from his sister Ann Randall Little; (4) that, with respect to the gift over of the residue of the proceeds of the Alice B. Shaffer trust, which was indefinite as to quantum, possession and number of persons who would ultimately share therein, and which he indirectly, if not directly, recognized could not be closed for a long period of time, he intended, excluding A. R. Little, to vest the proceeds of such property in the three beneficiaries named by him as a class to be determined upon the death of the life tenant (Alice B. Shaffer).
With the will construed as just indicated contentions made by appellants (John L. Randall, Mary Strueby, Searle Randall and Charlotte McElfresh) to the effect the will creates a contingent remainder in M. K. Little, E. G. Little and Anna L. Fulmer and therefore should be distributed under the laws of intestate succession to the heirs of John A. Randall, lack merit and cannot be upheld. On that account it is neither necessary nor required that we cite and distinguish decisions, relied upon by the appellants in support of this contention, which, in our opinion are based on facts and circumstances entirely different than those here involved and for that reason cannot be regarded as controlling precedents.
For the same reasons we are not inclined to labor a contention advanced by appellee trustee, or decisions cited in support thereof, to the effect this was a class gift to the three named beneficiaries and that the class was ascertained upon the death of the testator, not the death of the life tenant.
Moreover, we do not agree with a contention advanced by the appellants, as well as the trustee, that the three beneficiaries named by the testator in Paragraph Eight of the will took as individuals, not as a class. There is sound authority for the rule that, under the conditions and circumstances here existing, a gift to persons named may be construed as one to a class (See 57 Am. Jur., Wills, 836 § 1264; 61 A. L. R. 2d., Anno., 212). In fact, in Corbett v. Skaggs, 111 Kan. 380, 207 Pac. 819, citing 40 Cyc. 1473; 28 R. C. L. 260-267, it is said that even if beneficiaries are expressly named they may be treated as a class, if an intention to that effect is otherwise shown. Here, as we have previously indicated, an intention to treat the beneficiaries named as a class appears from the will itself.
What has been heretofore stated and held requires a conclusion the trial court did not err in its judgment, holding that the appellees, Robert Fulmer, Dorothy Chichester and Alice Wharton, being the sole surviving issue of the class in question, are the sole beneficiaries of the involved trust, share and share alike, and for that reason entitled to distribution of the remainder of the trust property. Therefore such judgment must be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Wkrtz, J.:
This was an action by the Milwaukee Insurance Company, plaintiff (appellant), which was subrogated to the rights of its assureds, the McDonalds, to recover from the Gas Service Company, defendant (appellee), one-half the amount paid its assureds for property damage caused by a gas explosion.
Plaintiff’s petition, in substance, alleged negligence on the part of defendant gas company in failing and neglecting to bury its gas mains and service lines at a sufficient depth and in failing and neglecting to take prompt corrective action when notified more than one hour before the explosion that gas was escaping from its lines.
Defendant answered by way of a general denial and alleged that the explosion and resultant damage suffered by plaintiff’s assureds were caused by the negligence of the Ritchie Brothers Construction Company, and that plaintiff was barred from maintaining the action by virtue of a settlement made with Ritchie Brothers, an alleged joint tort-feasor. Plaintiff replied by way of a general denial.
The pertinent facts follow: Eugene W. and Alma McDonald had insured, with plaintiff insurance company, their home at 7320 East Bayley Street, Wichita, against loss by fire and explosion. Their premises were being served by a gas line constructed by the defendant gas company. On May 10, 1955, the Ritchie Brothers Construction Company was preparing for paving the south half of the 7300 block of East Bayley Street, in which block and on the north side thereof was located the McDonald home. Ritchie Brothers’ employees were excavating the street by the use of a dragline, comprising a heavy bucket pulled on a cable by a crane. The south half of the street had to be excavated between four to six feet in this area in order to make it level with the north half, which had been previously paved. About 1:30 p. m., as it was being pulled to the west, the dragline snagged a gas service pipe. The defendant’s service pipe lay two or three inches under the pavement of the north half of the street and ran across the street to the south, rising approximately four to six inches in elevation as it crossed the south half of the street. When the pipe was snagged, approximately six feet of it was exposed and dragged to the west.
Immediately thereafter, Mr. Friend, an employee of Ritchie Brothers, notified the crane operator of the incident and instructed another employee, a truck driver who had a two-way radio in his truck, to notify the defendant gas company that one of its gas lines had been broken. The driver called the Ritchie Brothers’ office and reported the broken line to an employee, who promptly called the gas company, notifying them that Ritchie Brothers “had busted into a gas line and that it was flowing pretty bad,” and giving them the “exact address on East Bayley.” After Mr. Friend reported the snagged line to the truck driver, and at approximately 1:30 p. m., he told Mr. McDonald of the happening and asked him to check for leaks around his house. McDonald checked the pilot lights in the house, but they were burning; there was no smell of gas in the house and things appeared normal. However, there was a strong odor of gas outside the house. At approximately 2:30 p. m. an explosion occurred, which partially destroyed the McDonald home. There was a drain tile running from McDonald’s house to the street for the purpose of carrying off excess water. The end of the drain tile was approximately eighteen inches from the break in the gas line located in the street. It was possible that the gas entered this drain pipe and filled the walls and attic of the house.
The fire department arrived on the scene between ten to fifteen minutes after the explosion, at which time the fire chief immediately made an inspection and found gas leaking under the house and into the house. A truck driver for the defendant gas company arrived shortly thereafter and the fire chief said to him, “you better get a truck out here right quick. You are going to have another explosion.” The defendant’s employee then returned to his truck (it was assumed the truck had a radio), and “approximately fifteen minutes later” an entire gas company crew with all necessary equipment arrived at the scene. Within a few days after the explosion defendant lowered three gas lines in the same block from six inches to three feet.
The plaintiff insurance company, under the terms of its policy, paid $5,026.90 to the McDonalds for repairs to their house and received, in exchange, a subrogation receipt; and on December 13, the following instrument was executed:
“Covenant Not to Sue.
“I, Eugene W. And Alma McDonald of Wichita in the County of Sedgwick and State of Kansas, for our heirs, executors and administrators, in consideration of the sum of Two Thousand Five Hundred Thirteen and 45/100 Dollars to be paid by J. P. Ritchie, H. D. Ritchie and E. D. Ritchie, A Partnership, DBA Ritchie Brothers Construction Company & Lester Baggett, the receipt of which is hereby acknowledged, do by this instrument covenant with said J. P. Ritchie, H. D. Ritchie and E. D. Ritchie, a partnership, dba Ritchie Brothers Construction Company & Lester Baggett, to forever refrain from instituting, pressing or in any way aiding any claim, demand, action or causes of action, for damages, cost, loss of service, expenses or compensation for, on account of, or in any way growing out of, or hereafter to grow out of an accident which happened to Eugene W. and Alma McDonald on or about the 10th day of May,. 1955, at or near Wichita, Kansas, whereby Explosion loss to dwelling, and for the above consideration I hereby agree to hold the said J. P, Ritchie, H. D. Ritchie, and E. D. Ritchie, a partnership, dba Ritchie Brothers Construction Company & Lester Baggett, harmless from any damages to myself resulting or to result from said accident.”
At the conclusion of plaintiff’s evidence, defendant demurred thereto on the grounds that (1) plaintiff failed to make out a prima facie case of negligence against the defendant, (2) plaintiff had made a settlement with the joint tort-feasor and was therefore barred from maintaining the action, and (3) under the provisions of G. S. 1949, 55-106 and 55-109, the Ritchie Brothers Construction Company was solely responsible for any loss occasioned by the explosion. From an order of the trial court sustaining the demurrer, plaintiff appeals.
We will first consider whether plaintiff made out a prima facie case of negligence against defendant. In so doing, we must recognize certain well-established rules.
Natural gas is a highly dangerous agency and persons engaged in transporting it are held to a high degree of care in laying, inspecting and maintaining their transportation facilities to the end that they may reasonably protect not only the lives and property of their customers but also the lives and,property of others in close proximity thereto. (Sternbock v. Consolidated Gas Utilities Corp., 151 Kan. 81, 98 P. 2d 162; Jelf v. Cottonwood Falls Gas Co., 160 Kan. 112, 118, 160 P. 2d 270.)
A gas company having knowledge that gas is escaping in a building occupied by one of its customers is under a duty to shut off the gas supply until necessary repairs have been made or to remedy the defect itself as quickly as is practicably possible. (38 C. J. S. Gas § 42 d., p. 738; Jelf v. Cottonwood Falls Gas Co., supra, and cases therein cited.)
On a demurrer to the evidence this court is called upon to review only the sufficiency of plaintiff’s evidence and not to weigh the evidence for the purpose of rendering a decision on the merits of the action, and this same duty is incumbent upon the trial court. In testing the sufficiency of evidence as against a demurrer, the court shall consider all of plaintiff’s evidence as true, shall consider that favorable to plaintiff, together with all reasonable inferences to be drawn therefromj and shall disregard that unfavorable to plaintiff, and shall not weigh any part that is contradictory nor weigh any difference between his direct and cross-examination, and shall give the evidence of plaintiff a liberal construction resolving all doubt against defendant, and if, so considered, there is any evidence which supports or tends to support plaintiff’s case on any theory, the demurrer shall be overruled. A long list of our recent cases strictly adhering to this well-established rule may be found in Kendrick v. Atchison, T. & S. F. Rld. Co., 182 Kan. 249, 256, 257, 320 P. 2d 1061. For our last pronouncement on this subject, see Drake v. Moore, 184 Kan. 309, 313, 336 P. 2d 807.
We stated in Sternbock v. Consolidated Gas Utilities Corp., supra, that direct proof of negligence is not essential to recovery, as negligence may be established by circumstantial evidence alone. Where circumstances proved fairly justify the inference of negligence on the part of a transporter of natural gas in laying, inspecting and maintaining its service pipes, the evidence is sufficient to take the case to a jury.
In the instant action the evidence disclosed that the defendant was advised about 1:30 p. m. Ritchie Rrothers had broken one of its gas lines in the 7300 block on East Rayley Street and gas “was flowing pretty bad”; that the explosion occurred at 2:30 p. m. and the fire department was on the scene at 2:45 p. m., but defendant’s agent did not arrive until ten to fifteen minutes thereafter; that after being advised by the fire chief to get a truck out there “right quick,” defendant did so within ten to fifteen minutes.
The court apparently assumed one hour’s notice to the defendant gas company that gas was escaping did not give it sufficient time to turn off the gas or fix the line. In this assumption, it was in error. In fact, the court was weighing the evidence and deciding the lawsuit, which it had no right to do. Whether the gas company had sufficient time or acted as quickly as possible after being notified was a question of fact. The character and extent of proof required by the trial court is only applicable after the case is submitted for final decision upon its merits and not for the court’s consideration in ruling on a demurrer to plaintiff’s evidence. We are of the opinion that the plaintiff made out a prima facie case of negligence on the part of the defendant and the trial court erred in sustaining the demurrer.
Defendant contends that the quoted Covenant Not To Sue must be construed as a release; that Ritchie Brothers Construction Company was a joint tort-feasor, and since the release of one joint tortfeasor releases all, the contract was a bar to plaintiff’s action.
Under the facts in the instant case, it is apparent that Ritchie Brothers and defendant were not joint tort-feasors. Assuming Ritchie Brothers was negligent in breaking the gas line and assuming the defendant gas company was guilty of negligence in failing to take corrective measures after being advised gas was escaping from its lines, the act of each was an independent and concurrent or successive act. Between Ritchie Brothers and the defendant gas company there was no concert of action, common design, joint enterprise or other relationship which would make them joint tortfeasors. In no event could the two have acted together or jointly. Where the independent tortious acts of two persons combine to produce an injury indivisible in its nature, either tort-feasor may be held for the entire damage — not because he is responsible for the act of the other, but because his own act is regarded in law as a cause of the injury. In cases of such independent concurring or successive torts, the release of one wrongdoer does not release the other. (Husky Refining Co. v. Barnes, 119 F. 2d 715, 716 [Ninth Circuit]; Young v. Anderson, 33 Ida. 522, 196 Pac. 193, 50 A. L. R. 1056.)
The reason for the rule which renders the acceptance of satisfaction from one of two or more joint tort-feasors a discharge as to all is that the wrong is single and entire and the injured party is entitled to one and only one satisfaction, no matter how many parties may have joined in the act. When the wrongful act is not done jointly by the persons from whom compensation is sought but is the deed of one or the other and not of both, we are unable to perceive on what principle a settlement with and discharge of one affects the cause of action against the other. Furthermore, the release of one party jointly liable does not bar an action against the others liable, unless it is a general release without reservation, and in order for a release of one to bar an action against others, the release must be a general one which clearly shows the intention to release all parties. (Jukes v. North American Van Lines, Inc., 181 Kan. 12, 20, 309 P. 2d 692; Railway Co. v. McWherter, 59 Kan. 345, 53 Pac. 135; see annotation, 50 A. L. R. 1072, 1081.)
The Covenant Not To Sue here in question does not recite that the consideration was in full settlement of all damages. The evidence discloses the contrary. We are of the opinion the McDonalds intended that the Covenant Not To Sue apply to no other party than the Ritchie Brothers Construction Company (St. Paul Mercury Indemnity Co. v. United States, 201 F. 2d 57 [Tenth Circuit]; see annotation, 50 A. L. R. 1072, 1081), and that the trial court erred in its construction of the instrument in question.
Defendant’s contention that under G. S. 1949, 55-106 and 55-109 Ritchie Brothers was wholly responsible for the damage sustained is without merit. The mentioned statutes have no application to the facts of this case.. There is nothing in these statutes to prevent plaintiff from bringing this action against defendant, providing it was in fact negligent. No further comment need be made.
After a careful review of the record, we are of the opinion that the order of the trial court sustaining defendant’s demurrer to plaintiff’s evidence should be reversed and the case remanded for a new trial.
It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
The question here involves the validity of that provision of our statute (G. S. 1949, 60-3495) which precludes garnishment of a portion of the earnings of a judgment debtor where the creditor sells, assigns, sends or delivers the account to a collecting agency for collection.
The trial court held the provision in question to be unconstitutional and void.
Defendant judgment debtor has appealed.
The facts are not in dispute.
Defendant was indebted to the Nu-Tone Products Co. on an open account. The company sold and assigned the account to plaintiff collection agency. Plaintiff brought suit on the account in the county court of Republic county and recovered a judgment against defendant in the amount of $115.29. Plaintiff then filed an affidavit for garnishment and sought to garnish defendant’s wages owed to him by the Umbergers for whom defendant was then working.
Defendant filed a motion to quash the garnishment proceeding on the grounds that (1) as plaintiff was the assignee of the account sued on the remedy of garnishment was, under the provisions of G. S. 1949, 60-3495, not available to it, and that (3) defendant was married and the head of a family.
This motion to quash was sustained by the county court — whereupon plaintiff appealed to the district court.
At this point reference should be made to two of our execution and garnishment statutes.
G. S. 1949, 60-3494, pertaining to the application of property of a judgment debtor toward satisfaction of the judgment, provides, in part, that the earnings of a debtor who is a resident of this state, for his personal services at any time within three months next preceding the order, cannot be so applied when it is made to appear by the debtor’s affidavit, or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor, except as provided in G. S. 1949, 60-3495.
G. S. 1949, 60-3495, pertaining to the exemption of personal earnings of heads of families from attachment or garnishment, provides, in material part, that ten per cent and court costs not to exceed four dollars, and no more, of the earnings of a debtor who is a resident of the state, for his personal services at any time within three months next preceding the issuing of any attachment or garnishment process, may be taken and applied to the payment of his debts when it is made to appear by the debtor’s affidavit, or otherwise, that the remainder of such earnings above the ten per cent and court costs not to exceed four dollars are necessary for the maintenance of a family supported wholly or partly by his labor. The section also contains this proviso:
“That if any person, firm or corporation sells or assigns his account to any person or collecting agency, or sends or delivers the same to any collector or collecting agency for collection, then such person, firm or corporation or the assignees of either shall not have nor be entitled to the benefits of this act:”
In other words, under the conditions specified therein, 60-3494 exempts from execution-and garnishment the wages of a judgment debtor, except as provided in 60-3495, which, as has been stated, specifies conditions under which a judgment creditor may have garnishment process against certain earnings of the judgment debtor, subject to the specific provisio above quoted. >
In the district court it was conceded that plaintiff was a collector and a “collection agency” within the meaning of the statute; that it was the assignee of the account upon which the judgment was founded; that defendant was the head of a family, and that the sum sought to be taken in garnishment was his personal earnings currently earned and payable.
In holding that the proviso in question violates both the “equal protection of the laws” clause of the fourteenth amendment to the federal constitution and section 1 of our own bill- of rights which provides that “all men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness,” the district court stated in part:
“This Court is not concerned with the wisdom of the statute — that lies within the province of the legislature. It is concerned, however, with the authority of the legislature to enact such a statute.
“There can be no .question that this statute denies to one class of citizens that which is granted other classes. Certainly, the legislature could not have believed collectors or collecting agencies so evil or dishonest they must be discriminated against. Neither could the legislature say one class of debtor, namely the account, should be treated differently from the many other classes of debtors. To do so would be to stigmatize both the creditor and debtor. This statute singles out a certain class of creditors, denying to them privileges granted other classes. This situation can not be maintained upon grounds of public welfare or police power. It is an impairment of contract of assignment.
“This Court is of the opinion the legislature may withhold the privilege of garnishment from all classes. It cannot prohibit garnishment to only one class. An attempt to do so is violative of the Federal and State Constitutions.
“The motion to quash is overruled.”
In harmony with this ruling, judgment was entered remanding the matter to the county court with instructions to set aside the order quashing the garnishment proceeding, and costs of the appeal were taxed to defendant.
The effect of the district court’s ruling being to reinstate the garnishment proceeding notwithstanding that plaintiff collection agency was the assignee of the account upon which the judgment was founded, defendant judgment debtor has appealed.
In support of the district court’s ruling the gist of plaintiff’s contentions is that to single out a creditor who assigns his claim to a collection agency and thus deny the right to garnishment in the circumstances mentioned in the statute amounts to an arbitrary and unreasonable classification having no relation to the subject matter— garnishment and the collection of debts — and in this connection a number of cases are cited, among them being In re Irish, 122 Kan. 33, 250 Pac. 1056; City of Atchison v. Beckenstein, 143 Kan. 440, 54 P. 2d 926, and McCulley v. City of Wichita, 151 Kan. 214, 98 P. 2d 192, 127 A. L. R. 312, none of which, however, is factually analogous. (And see State, ex rel., v. Consumers Warehouse Market, 185 Kan. 363, 343 P. 2d 234.)
Defendant judgment debtor, on the other hand, contends the provision in question does not impair plaintiff’s contract in view of the fact the statute was in force and effect when the account sued on was first incurred and when it was assigned to plaintiff, and that the remedies for the enforcement of a contract existing when the contract is made constitute a part of its obligation. (See 12 Am. Jur., Constitutional Law, § 431, p. 67.)
He further contends that what was said and held in Losier v. Sherman, 157 Kan. 153, 138 P. 2d 272 (1943), is decisive on the question here.
The Losier case was an action in which the plaintiff sought an injunction to prevent defendant from subjecting his earnings to garnishment proceedings because defendant had placed his account against plaintiff with a collection agency. The plaintiff contended (just as is contended here by defendant) that the provision of the statute in question means exactly what it says, and that a creditor who turns over his - account to a collection agency may not have the benefit of the act permitting garnishment of earnings. In holding that the remedy of garnishment was not available, it was said:
“The statute under consideration specifies conditions under which a judgment creditor may have garnishment process against certain earnings of the judgment debtor, with a specific proviso that if any person, firm or corporation sends or delivers his account against another to any collector or collection agency for collection, he shall not be entitled to the benefits of the act. This act, which has been in effect for almost thirty years, does not take from any judgment creditor, without trial, any civil rights or remedy, nor does it inflict any penalty or punishment without a trial. When the debt here involved was incurred, the creditor was bound to take notice of the conditions under which he could seek by garnishment process to levy on the earnings of his debtor if the debtor became in default. The statute conferred a right on the creditor of which he could avail himself if he observed its terms and conditions. The choice was his, and it may not be said the proviso in question is in any sense a bill of attainder.
“We think that the portion of the statute quoted above means just what it says, and if a creditor sees fit to send or deliver his account to a collector or collecting agency, he shall not be entitled to the benefits of the statute permitting garnishment of a portion of the earnings of his debtor, as provided in the statutes above mentioned.” (p. 156.)
It is quite true that in the Losier case the statute was not attacked on the grounds here urged, but we believe that what was there said and held applies with equal force to the case before us.
The statute in question was in full force and effect when the debt here was incurred and when the account evidencing it was assigned by the creditor to plaintiff collection agency. We have no question of the impairment of a preexisting contract and remedy for its enforcement. (See 12 Am. Jur., Constitutional Law, § 442, p. 84, and the annotation at 93 A. L. R. 177.) When this account was assigned both the creditor and plaintiff, the assignee, were bound to take notice of the conditions under which garnishment process could be had. Instead of taking rights away from a creditor, the statute, in reality, confers rights (of garnishment) of which he may avail himself upon observance of its terms and conditions.
We think it may not be said the statute creates an arbitrary and unreasonable classification resulting in unequal protection of the laws. In fact, under and by virtue of its very provisions, the remedy of garnishment is made available to all creditors — provided they observe its terms. The choice is theirs. The general rule is that exemption laws are to be liberally construed in favor of those intended to be benefited and favorable to the objects and purposes of the en actment (22 Am. Jur., Exemptions, §6, p. 9; Mallory v. Berry, 16 Kan. 293; Dowd v. Heuson, 122 Kan. 278, 280, 252 Pac. 260, 52 A. L. R. 823), and, with respect to the exemption of wages or earnings, it has been said that the purpose of such exemption is to protect a class of persons who are largely dependent on their wages for support, as well as their families and dependents who look to them for a living, and that such a statute should receive a liberal construction rather than one which would defeat the benevolent object aimed to be accomplished (22 Am. Jur., Exemptions, §64, p. 56). In enacting the specific proviso in question perhaps the legislature had in mind to protect the dependents of wage earners from repeated harassment by “professional collection agencies.” Be that as it may — it was within the province of the legislature to enact the proviso, and it is not invalid on either of the grounds asserted.
The result is that we believe the court erred in overruling the motion to quash the garnishment proceeding, and the judgment is therefore reversed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action for specific performance of an oral contract, or, in the alternative, for damages. Plaintiffs appeal from an order sustaining a general demurrer to their amended petition.
On August 18, 1956, Floyd A. Howard and Dorothea Earlene Howard, husband and wife, met simultaneous death in an airplane crash. Each died intestate.
Floyd was survived by Lily Ann Hinson, a daughter by a previous marriage, as his only heir-at-law.
Dorothea was survived by Ronald McCurtain and Jerry Evan McCurtain, sons by. a previous marriage, as her only heirs-at-law.
Plaintiffs in this action are Ronald and the guardian of Jerry, who was subsequently adjudged to be insane.
Defendants are Lily and her husband, Charles H. Hinson.
The action was commenced on August 28,1958, and the amended petition was filed on October 20, 1958. It contains two causes of action.
The first cause of action, after alleging the identity of the parties as heretofore related, alleges that upon learning of the death of their respective parents, Ronald, the son of Dorothea, acting for himself and on behalf of his brother Jerry, who at the time had not been adjudged insane, met with Lily, the daughter of Floyd, at a bank in Wichita. Probate proceedings had not yet been commenced in either estate. At this meeting an oral contract was entered into between the. parties, whereby, in consideration of a forbearance on the part of all to bring legal proceedings to determine any controversy over the distribution of tihe estates of Floyd and Dorothea, and to save the expense, time and effort of same, and to settle all controversies, it was agreed by and between the parties that the estates of Floyd and Dorothea would be administered and that upon completion of such probate proceedings Lily would have an undivided one-half interest in the assets of each estate, and that Ronald and Jerry each would have an undivided one-fourth interest in the assets of each estate, such assets to include any proceeds of insurance policies upon the life or lives of their respective parents. .......
The first cause of action further alleges that, in accordance with the terms of such agreement, and with the knowledge and consent of the parties, administration was had on the estates of Floyd and Dorothea in the probate court of Sedgwick county; that her estate was settled and closed on October 30, 1957; that his estate was settled and closed on December 13, 1957, and that her estate possessed no assets for distribution. It is further alleged that the assets of Floyd’s estate for distribution consisted of real estate in the city of Wichita of the value of $11,000, together with personal property in the amount of $20,449.59, and the proceeds of insurance policies, the number and amount of which are unknown to plaintiffs. It is further alleged that plaintiffs have fully and completely performed all of the conditions of the oral contract on their part and have tendered to Lily, the defendant, one-half of the proceeds of two insurance policies upon the life of Dorothea in the amount of $1,000 each; that such tender was refused by her, and that she has refused plaintiffs’ demand for performance of the contract. The prayer seeks specific performance thereof and that Lily be compelled to convey to Ronald and his brother Jerry an undivided one-fourth interest each in the property of the estate of Lily’s father, Floyd.
For their second cause of action plaintiffs incorporate all of the allegations of the first cause of action and pray that in the event specific performance of the oral contract be refused that plaintiffs have and recover damages for the breach of the contract in the amount of $15,724.80, being one-half of the value of Floyd’s estate for distribution; the sum of $5,000, or one-half of the insurance proceeds on Floyd’s life, or a total sum of $20,724.80.
Lily and her husband, codefendant, filed a demurrer to the amended petition “for the reason that the same fails to state facts sufficient to constitute a cause of .action against the defendants and affirmatively shows that no cause of action exists.”
This demurrer was sustained and plaintiffs have appealed.
From the manner in which the appeal is treated it is confusing as to just what was the basis of the trial court’s ruling. Plaintiffs say that defendants’ demurrer to the amended petition was on the ground that the district court did not have jurisdiction of the subject matter of the action, and that that is the sole question presented in the appeal.
We do not so read the demurrer, quoted above. The most that can be said for it is that it raises the question whether sufficient facts are alleged to constitute a cause of action and whether a cause of action exists, all of which, for present purposes, mean the same thing.
G. S. 1949, 60-705, lists five grounds of demurrer in cases where the claimed defect appears on the face of the petition.
G. S. 1949, 60-706, provides that a demurrer to a petition shall specify distinctly the grounds of objection, and unless it does so it shall be regarded as objecting only that the petition does not state facts sufficient to constitute a cause of action.
G. S. 1949, 60-707, provides that when any of the defects enumerated in 60-705 do not appear upon the face of the petition the objection may be taken by answer, and if no objection be taken either by demurrer or answer the defendant shall be deemed to have waived the same except only the objection to the jurisdiction of the court, and that the petition does not state facts sufficient to constitute a cause of action.
In their brief defendants make four contentions, apparently on the assumption that each is distinctly (60-706) specified by their general demurrer.
The first is that the alleged “family settlement” affected the division of assets in the two estates, thus requiring that the contract be enforced, if at all, in the probate court. In other words, it is claimed that the district court had no jurisdiction of the subject matter of the action.
The second contention is that the alleged oral contract does not bind defendants because the incompetent plaintiff (Jerry) was never bound, and that the bringing of this action by his guardian did not and could not constitute a ratification.
The third contention is that the amended petition fails to allege facts constituting a consideration for the alleged contract.
The fourth contention is that the alleged oral contract concerns real estate in violation of the statute of frauds, and that there is no such part performance alleged as to take it out of the statute.
With respect to the second contention, defendants rely upon certain statements made by counsel to the effect that at the time the alleged contract was made Jerry was in fact incompetent and insane, and we are referred to decisions holding that admissions of counsel of record made during the trial bind their clients in all matters relating to the progress of a'case. One trouble with this argument is that here we are concerned with a demurrer to the amended petition, and under the statute a demurrer lies only when the claimed defect appears on the face of the pleading attacked. Furthermore, in ruling on a general demurrer to a petition a court is not justified in reaching out and making additional facts a part of the petition. (Lee v. Beuttel, 170 Kan. 54, 223 P. 2d 692; Lorey v. Cox, 175 Kan. 66, 259 P. 2d 194, and Wahl v. Walsh, 177 Kan. 176, 277 P. 2d 623.) The amended petition alleges that at the time the alleged agreement was entered into Jerry had not been adjudged insane. If defendants’ contention has to do with the legal capacity of either plaintiff, or both, to bring the action, they should have so specified distinctly in their demurrer.
With respect to the fourth contention, which injects the question of the statute of frauds, we call attention to the fact the amended petition contains two causes of action. Assuming, without deciding, this contention is good as to the first cause of action seeking specific performance, the fact remains that the demurrer was levelled at the petition in its entirety. The rule is that every count or separate cause of action in a pleading must, as against a demurrer, stand or fall upon its own averments, and a general demurrer to a petition as a whole is properly overruled if any separate count therein states a cause of action. (Allen County State Bank v. Wilson, 140 Kan. 577, 579, 37 P. 2d 1002; Edwards v. Solar Oil Corp., 177 Kan. 219, 222, 277 P. 2d 614, and Capps v. Valk, 184 Kan. 796, 797, 339 P. 2d 62.) The second cause of action in the amended petition, which is for damages in the event specific performance be denied, is sufficient to withstand any contention with respect to the statute of frauds.
Notwithstanding the record is confusing as to the basis of the trial court’s ruling on this demurrer, we nevertheless discuss briefly the contentions that the district court lacked jurisdiction of the subject matter and that the amended petition fails to state a cause of action.
The allegations of the amended petition have been summarized and will not be repeated in detail. It is alleged the agreement was entered into prior to the commencement of administration on the estate of either decedent, and that in consideration of a forbearance on the part of all parties to bring legal proceedings to determine any controversy over the distribution of the assets of decedents it was agreed that upon the completion of probate proceedings the daughter of Floyd would have an undivided one-half interest in the assets of each estate, and that each óf the sons of Dorothea would have an undivided one-fourth interest in the assets of each estate, and that plaintiff sons had fully complied with the agreement but that defendant daughter had failed and refused to carry it out. We do not interpret the contract as pleaded as providing for a division of estate assets in a manner different from that provided by law, insofar as any order of final settlement in the probate court is concerned — rather we interpret it as an agreement between two sets of heirs for a division of assets among the parties after administration on the estate of each decedent was completed. We think, therefore, the amended petition alleged facts sufficient to constitute a cause of action and that the district court had jurisdiction of the subject matter of the action.
From what has been said it follows that the demurrer was erroneously sustained and the judgment is reversed. . | [
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|
The opinion of the court was delivered by
Price, J.:
This case is an action by the State, on the relation of the county attorney of Crawford county, to enjoin defendant business firm, Consumers Warehouse Market, Inc., from violating the provisions of G. S. 1949, 50-401 to 408, known as the Unfair Practices Act.
Defendant appeals from an order overruling its demurrer to the State’s petition.
The questions involved are such that the constitutionality of the entire Act is in issue.
The action was commenced on April 6, 1956, by the filing of a verified petition which, omitting formal parts and description of :real estate, reads:
“Comes now the State of Kansas, on relation of J. lohn Marshall, County Attorney of Crawford County, Kansas, and for its cause of action against the defendant above named, alleges and states:
“That the said J. lohn Marshall is the duly elected, qualified and acting County Attorney in and for the County of Crawford, State of Kansas, and as such County Attorney is authorized and empowered to prosecute this action for and on behalf of the people of the State of Kansas; that defendant is a corporation for profit deriving its origin and existence under and by virtue of the laws of the State of Kansas, and as such is authorized to engage in and transact business in said State; that defendant corporation’s resident agent for service of process is A. W. McNulty and his correct post office address is 502 East 20th Street, Pittsburg, Crawford County, Kansas.
“That defendant corporation is engaged in die field of commerce, more particular^ a retail outlet operated for the purpose of selling groceries and other food and household commodities to die general public; that die defendant corporation is the owner or lessee of and in fact is in possession of the following described real estate and building located at 2506 North Broadway, R. R. No. 1, Pittsburg, Kansas, being more particularly described as follows, to-wit:
“That on or about the 25th day of March, 1956, in the County of Crawford, and State of Kansas, defendant corporation above named, by and through its various agents or employees, caused to be published a paid advertisement in the Pittsburg Sun, a daily newspaper published in Pittsburg, Kansas, wherein certain goods and merchandise were advertised and offered for sale at a price less than the minimum charge as provided by G. S. 1949, 50-401; that said advertistment and offering to sell at less than cost is defined in said act was so advertised and offered for sale with the intent of said defendant corporation to unfairly divert trade from competitors in the same general business and was for a purpose of impairing and preventing fair competition and for the purpose of injuring public welfare and as such is unfair competition and contrary to public policy, resulting in an unreasonable restraint of trade and further resulting in substantially lessening competition with a tendency to create a monopoly in its own particular line of commerce; that said advertisement and offer to sell was not such as to be an exemption as defined in G. S. 1949, 50-405.
“Plaintiff further alleges that said advertising, offering for sale or selling of said merchandise is contrary to the form of the statutes made and provided and as such constitutes a common nuisance to the people of the State of Kansas and that said nuisance is now in existance and should be abated.
“That the plaintiff should be allowed a reasonable attorney’s fee for the prosecution of this action and the sum of Five Hundred Dollars ($500.00) is a reasonable attorney’s fee.
“Wherefore, plaintiff prays that an injunction be granted forthwith against the defendant corporation, its agents, servants, employees, successors or assigns, restraining and enjoining them, and each of them from keeping and maintaining a common nuisance as herein alleged in or upon said premises and that said defendant corporation be specifically and perpetually enjoined and restrained from advertising, offering to sell or selling at retail any commodity or item of merchandise at less than cost as defined by G. S. 1949, 50-401, and that the premises above described and the buildings located thereon be adjudged a common nuisance.
“Plaintiff further prays that a temporary injunction be granted at the commencement of this action, without notice, to be in effect until the final determination of this matter or until further order of this Court, and that upon the final adjudication of this matter, the temporary injunction heretofore referred to be made permanent and that the costs of this action, together with a reasonable attorney’s fee be allowed the plaintiff and that the same be adjudged a lien upon said real estate and that said real estate be ordered sold to satisfy all such costs and attorney’s fees, and such other and further relief as to the Court may seem equitable and just.”
We are told that a temporary injunction in accordance with the prayer of the petition was granted on the same day and that it is still in effect.
For reasons not shown by the record, defendant filed no pleading in response to the petition until January 8, 1959, on which date it filed a demurrer as follows:
“Comes now the Defendant and demurs to the Petition of Plaintiff on the ground that said Petition does not state facts sufficient to constitute a cause of action for tire reason, among others, that the Statutes, G. S. 1949, 50-401 to 50-405, inclusive, on which the action is predicated, are discriminatory to this Defendant and are in conflict with and violate the equal protection clause of the Fourteenth Amendment to the Constitution of die United States, and Section 17 of Article 2 of the Constitution of Kansas.”
This demurrer was overruled on the date it was filed, and defendant has appealed, specifying such ruling as error. The appeal was heard at the regular June session of this court.
Portions of the Act in question^ pertinent by virtue of the questions raised, will either be quoted or referred to, and all references are to G. S. 1949.
The purpose of the Act — to safeguard the public against the creation of monopolies and to foster and encourage competition by prohibition of unfair practices — is found in 50-402, which reads:
“It is hereby declared that any advertising, offer to sell, or sale of any merchandise, either by retailers or wholesalers, at less than cost as defined in this act, with the intent, of unfairly diverting trade from a competitor or otherwise injuring a competitor, impair and prevent fair competition, injure public welfare, are unfair competition and contrary to public policy and the policy of this act, where the result of such advertising, offer or sale is to tend to deceive any purchaser or prospective purchaser, or to substantially lessen competition, or to unreasonably restrain trade, or to tend to create a monopoly in any line of commerce.”
50-401 contains definitions of numerous terms and provisions in the Act. “Cost” is generally defined to mean invoice or replacement cost, whichever is lower, less all trade discounts except discounts for cash, plus freight charges, excise taxes, cartage, and an allowance for markup to cover a proportionate part of the cost of doing business fixed at six percent for retailers and two percent for wholesalers, absent proof of a lesser cost.
Subsections (f), (g), (h) and (i) of 50-401, read in part:
“(f) The term ‘sell at retail,’ ‘sales at retail,’ and ‘retail sale’ shall mean and include any transfer for a valuable consideration, made in the ordinary course of trade or in the usual prosecution of the seller’s business of title to tangible personal property to the purchaser for consumption or use other than resale or further processing or manufacturing. . . .
“(g) The terms ‘sell at wholesale,’ ‘sales at wholesale,’ and ‘wholesale sales’ shall mean and include any transfer for a valuable consideration made in ordinary course of trade or the usual, conduct of the seller’s business, of title to tangible personal property to the purchaser for purposes of resale or further processing or manufacturing. . . .
“(h) The term retailer’ shall mean and include every person, partnership, corporation or association engaged in the business of making sales at retail within this state: . . .
“(i) The term ‘wholesaler’ shall mean and include every person, partnership, corporation, or association .engaged in the business of making sales at wholesale within this state: . . .”
50-403 makes violation of the Act by either a retailer or wholesaler a misdemeanor and provides a penalty for such a violation.
50-404 authorizes proceedings in equity to prevent or restrain violations of the Act.
50-405 states that the provisions of the Act shall not apply to sales at retail or sales at wholesale in a number of instances such as where merchandise is sold in good-faith clearance sales if advertised, marked and sold as such, or where perishable merchandise must be sold promptly in order to forestall loss, and in other instances not here material. This section contains a further provision which is the real crux of this lawsuit:
“Provided further, The provisions of this act shall not apply to grain and feed dealers.”
50-407 reads:
“If any section, sentence, clause or provisions of this act shall for any reason be held invalid or unconstitutional, the validity of the remaining parts hereof shall not be affected thereby.”
Defendant contends the exemption of grain and feed dealers from the provisions of the Act is an unreasonable and arbitrary statutory discrimination and is in violation of the “equal protection of the laws” clause of Sec. 1 of the 14th amendment to the Constitution of the United States; that such exemption of grain and feed dealers violates Sec. 17 of Art. 2-of our own constitution, pertinent portions of which read:
“All laws of a general nature shall have a uniform operation throughout the state; and in all cases where a general law can be made applicable, no special law shall be enacted; and whether or not a law enacted is repugnant to this provision of the constitution shall be construed and determined by the courts of the state: . . .”
and that the exemption in question is not severable under 50-407, above, and therefore the entire Act is unconstitutional and void.
The State, on the oth'er hand; contends the exemption of grain and feed dealers is a reasonable classification; that the Act' is a general law operating uniformly on all within the classification created by its terms, and that even though the exemption provision in question is held to be unconstitutional, as contended by defendant, it nevertheless is severable under 50-407, above, and does not affect the validity of the remainder of the Act.
Since its enactment in 1941 only three cases involving the Act have reached this court. In the first two of them (State, ex rel., v. Fleming Co., 164 Kan. 723, 192 P. 2d 207, and State, ex rel., v. Commercial Candy Co., 166 Kan. 432, 201 P. 2d 1034) it was unnecessary that we determine questions relating to its constitutionality.
State v. Consumers Warehouse Market, 183 Kan. 502, 329 P. 2d 638, hereafter referred to as the Consumers case, was a criminal prosecution against this defendant firm for alleged violations of the provisions of the Act. The information under which that prosecution was commenced is set out in the opinion of this court. A motion to quash the information on the ground it failed to allege an offense because sections 50-401, 402, 403, 404 and 405 of the Act violated both the federal and state constitutions and amendments thereto, was sustained. The State appealed. In support of the lower court’s ruling the defendant’s principal contention was that the Act is a price-fixing statute and therefore violates the due process guarantee of the 14th Amendment to the Constitution of the United States and Sec. 18 of our Bill of Rights. This court held such contention to be without merit and upheld the Act insofar as the due process feature was concerned. Several other challenges to the constitutionality of various provisions of the Act were made, all of which, with one exception, were held to be without merit. That exception was this: It was held that the particular portion of 50-401 (e) which reads:
“. . . ; and purchases made by retailers and wholesalers at prices which cannot be Justified by prevailing market conditions within this state shall not be used in determining cost to the retailer and cost to the wholesaler.”
is so indefinite and uncertain that it is unreasonable and arbitrary, and therefore unconstitutional (see syl. 7 of the opinion). It was further held, however, that such invalid provision was severable and did not affect the remainder of the Act.
(In passing, it should be noted that at the end of line three in the next to the last paragraph of the opinion in the Consumers case, the reference to “50-405 (e)” is a typographical error. The reference should have been to 50-401 (e), and the same is hereby corrected.)
At this point attention should be called to the fact that in the Consumers case the question of unconstitutionality of the Act because of the exemption of grain and feed dealers from its provisions —was not before this court for decision, and was neither considered nor decided. (State, ex rel., v. Fadely, 180 Kan. 652, syl. 3, 308 P. 2d 537.) In other words, the extent of our holding in that case was that the Act, with the exception of the one provision above noted, was not unconstitutional on any of the grounds urged. Therefore, our decision in that case is not controlling on the question now before us.
The questions in this appeal are whether the exemption of grain and feed dealers from the scope and operation of the Act violates the “equal protection” clause of Sec. 1 of the 14th Amendment to the Constitution of the United States, and violates Sec. 17 of Art. 2 of our own constitution, above, and, if so, is such provision severable from the remainder of the Act.
For reasons hereafter stated, we hold the exemption provision in question violates both of the mentioned constitutional provisions; that it is not severable, and therefore the entire Act is unconstitutional and void.
Under Sec. 1 of the 14th Amendment to the Constitution of the United States a state is forbidden to make or enforce any law which shall deny to any person within its jurisdiction the equal protection of the laws.
The purpose of the Act in question, as previously stated, is to prevent the sale — with certain specified exceptions — of merchandise at below cost, either by a retailer or a wholesaler, where such sale or offer to sell is made with the intent and with the result stated in 50-402, above. Also, as previously noted in the quotations from 50-401, above, defining “sales at retail,” “sales at wholesale,” “retailer” and “wholesaler,” the class to be regulated constitutes all sellers at retail and wholesale of tangible personal property. Concededly, this is a broad classification, but, nevertheless, it is that fixed by statute. Grain and feed dealers who sell grain and feed at retail and wholesale of course would be under the Act were it not for the fact they are specifically exempted. This, the defendant contends, amounts to an arbitrary, fictitious and unreasonable statutory discrimination.
We agree.
Concededly, a state has a broad discretion in classification in the exercise of its power of regulation, and the Constitution of the United States does not require that things which are different in fact are to be treated in law as though they were the same, but discrimination in a state regulatory statute must be based on differences that are reasonably related to the purpose of the statute, and the constitutional guaranty of equal protection of the laws is interposed against discriminations that are entirely arbitrary. Distinctions cannot be justified if the discrimination has no reasonable relation to the differences. (The State v. Haun, 61 Kan. 146, 59 Pac. 340, 47 L. R. A. 369; McCulley v. City of Wichita, 151 Kan. 214, 222, 223, syl. 2, 98 P. 2d 192, 127 A. L. R. 312; Cotting v. Kansas City Stock Yards Co., 183 U. S. 79, 46 L. ed. 92, 22 S. Ct. 30; Smith v. Cahoon, 283 U. S. 553, 75 L. ed. 1264, 51 S. Ct. 582; Morey v. Doud, 354 U. S. 457, 1 L. ed. 2d 1485, 77 S. Ct. 1344 [1957].) In the last-mentioned case the Supreme Court of the United States had before it an Illinois statute which excepted money orders of the American Express Company from the requirement that any firm selling or issuing money orders in the state must secure a license and submit to state regulation. A competing firm attacked the law on the ground the exception stated in the statute worked a denial of the “equal protection of the laws” clause in the 14th Amendment. In upholding this contention the court said:
“Taking all of these factors in conjunction — the remote relationship of the statutory classification to the Act’s purpose or to business characteristics, and the creation of a closed class by the singling out of the money orders of a named company, with accompanying economic advantages — we hold that the application of the Act to appellees deprives them of equal protection of the laws.” (p. 469.)
The Act before us purports to be in part for the protection of the public. None has been pointed out, and we know of no reason why that segment of the public buying grain and feed should not be protected against a monopoly in that line of products. By the same token, should not grain and feed dealers be protected from unfair competition — the same as the retailer or wholesaler of groceries, for example? Insofar as this defendant — a retail firm engaged in selling groceries and other food and household commodities to the general public — is concerned, the Act regulates it, but permits the grain and feed dealer across the street to carry on his business in any manner he sees fit — even to the extent of bringing about the results denounced by the Act.
Taking all factors into consideration, we are of the opinion the statutory exemption of grain and feed dealers from the operation of the Act, thus singling them out as a closed class to receive special privileges, amounts to an arbitrary and unreasonable statutory discrimination having no relation to the expressed purpose of the Act —the practical effect of which deprives defendant of the equal protection of the laws as guaranteed by Sec. 1 of the 14th Amendment to the Constitution of the United States.
Does the Act — which we think must be conceded to be a law of a “general nature” — have a “uniform operation throughout the state” as required by Sec. 17 of Art. 2 of our own constitution?
Much of what has been said may well apply to this question. The Act defines a class — all retailers and wholesalers of tangible personal property within the state — and purports to regulate all falling within this broad classification. It then, by the proviso in question, arbitrarily exempts “grain and feed dealers.” The Act, therefore, does not operate uniformly on all members of the broad classification so created — that is, its operation is not uniform as to the class defined — and therefore may not be said to have a uniform operation throughout the state. In Gustafson v. McPherson County, 88 Kan. 335, 128 Pac. 186, this court considered a statute which authorizéd the allowance of a sum for hire of an undersheriff in counties having a population of between 18,000 and 25,000, except McPherson county. In declaring the statute bad, it was held:
“Where the subject of an act of the legislature is one of common interest to all members of a group of counties and no difference in situation or circumstance exists justifying difference in treatment and preventing the framing of an applicable general law of uniform operation upon all the members of the group alike, the exclusion of one of the counties from the benefit of the act renders it void.” (syl. 1.)
and said:
“Interpreted by its title, the law is one of a general nature covering all counties of a specified class. It does not, however, have uniform operation upon all the counties of the class throughout the state. McPherson county is excluded, and the exclusion of McPherson county renders the act invalid.” (pp. 336, 337.)
“. . . No difference in circumstance ox other valid reason existed for difference in regulation. No obstacle existed to the framing of an applicable general law of -uniform operation upon all the members of the group alike. Instead of enacting such a law the legislature undertook to dispense special privileges to some of them. In so doing it stepped outside its constitutional province as a lawmaking body and the product of its action lacks the force and quality of a statute.” (p. 337.)
(See also Rombo v. Larrabee, 67 Kan. 634, syl. 1, 2 and 5, 73 Pac. 915.)
The foregoing is applicable to the matter before us and the statutory exemption in question is held to violate the mentioned provision of our own constitution.
Does the fact the provision exempting grain and feed dealers is held to be bad, invalidate the entire Act, or is such provision severable under 50-407, above, thus leaving the remainder of the Act in full force and effect?
The rule is stated very clearly in the early case of Central Branch U. P. R. Co. v. Atchison, T. & S. F. R. Co., 28 Kan. 453, in which it was held:
“While it is undoubtedly true that a statute may be constitutional in one part, and unconstitutional in another, yet this rule obtains only where the two parts are separate and independent; and where they are so related that the latter is a condition of, a compensation for, or an inducement to, the former, or where it is obvious that the legislature, having respect to opposing rights and interests, would not have enacted one but fox the other, then the unconstitutionality of the latter avoids the entire statute.” (Syl. 1.)
In The State v. Smiley, 65 Kan. 240, 69 Pac. 199, 67 L. R. A. 903, it was said:
“The general doctrine is that only the invalid parts of a statute are without legal efficacy. This is qualified by the further rule that if the void and valid parts of tire statute are so connected with each other in the general scheme of the act that they cannot be separated without violence to the evident intent of the legislature, the whole must fall. These rules are of every-day enforcement in die courts.” (p. 247.)
In Voran v. Wright, 129 Kan. 601, 284 Pac. 807, it was held:
“Where parts of a statute or section thereof can b.e readily separated, that part which is constitutional may stand while that which is unconstitutional will be rejected.” (Syl. 6.)
(See also Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, at pp. 300, 301, 327 P. 2d 836.)
Tested by the foregoing statements of the rule, the answer to the question is obvious. The invalid portion of the statute is not a separate and independent provision of the Act, but rather is such an integral and inseparable part of the whole scheme and purpose of the law that it may not be severed therefrom and thus leave the remainder in full force and effect. In other words, to eliminate the objectionable exemption would change the scope of the Act and make it applicable to grain and feed dealers, whereas the legislature expressly declared they are not to be included. The question of severability here is readily distinguishable from that in the Consumers case, heretofore referred to. There it was held that a portion of 50-401 (c), which was merely one of a series of tests as to what is less than cost, was invalid, but, being severable, its invalidity did not affect the remainder of the Act.
Not so here, and we refer again to the Gustafson case in which, on the question of severability, it was held:
“The exception of McPherson county is not a separate and independent provision which may be disregarded and leave the remainder of the act effective, since to eliminate the exception would change the scope of the law and make it applicable in territory where the legislature expressly declared it should not operate.” (syl. 3.)
and said:
“The declared purpose of the legislature is that the undersheriffs of McPherson county shall not receive the benefit of the law. This purpose informs the entire act, and the portion concerning McPherson county can not be eliminated without changing the whole scheme of the statute, even to the extent of making it applicable in territory where the legislature expressly said it should not operate.” (p. 336.)
For the reasons stated, we therefore hold that the provision of 50-405, exempting grain and feed dealers from the scope and operation of the Unfair Practices Act, violates the “equal protection of the laws” clause of Sec. 1 of the 14th Amendment to the Constitution of the United States; that it violates Sec. 17 of Art. 2 of our own constitution, and, such provision not being severable, the entire Act is unconstitutional and void.
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|
The opinion of the court was delivered by
Schboeder, J.:
This is an appeal in a habeas corpus action by the warden of the state penitentiary from an order of the district court of Leavenworth County granting the petitioner’s writ and directing his discharge.
The primary question presented is whether the district court of Crawford County, which originally tried the petitioner on a first degree murder charge, was without jurisdiction to accept his plea of guilty because of alleged failure of the district judge to find that appointment of counsel over petitioner’s objection would not have been to his advantage.
The petitioner, Roy Ramsey (appellee), is presently confined in the Kansas State Penitentiary, pursuant to a conviction of first degree murder on October 16, 1948, and a sentence to confinement at hard labor for life adjudged on that date in the district court of Crawford County, Kansas. Ramsey entered a plea of guilty to the charge.
On June 7,1957, Ramsey filed a petition for writ of habeas corpus in the district court of Leavenworth County, Kansas. This writ was denied in the lower court on June 18, 1957, and appealed to this court where the decision was affirmed. (Ramsey v. Hand, 183 Kan. 307, 327, P. 2d 1080.) The point now presented was not raised by the petitioner in that action.
On October 1, 1958, Ramsey filed another petition for writ of habeas corpus in the district court of Leavenworth County, and on November 10, 1958, the lower court found in favor of the petitioner and the writ was granted. Crawford County authorities immediately rearrested Ramsey and the warden (appellant) filed the present appeal. The appellant also moved this court to advance the date for hearing and to recommit the appellee to the Kansas State Penitentiary pending the outcome of this appeal. These motions were granted.
The records of the city court of Pittsburg, Kansas, disclosed that on October 16, 1848, a complaint was filed in that court alleging that on or about the 14th day of January, 1948, Roy Ramsey and two others, while attempting to perpetrate a burglary, robbery and larceny, committed first degree murder. Ramsey appeared in court on October 16, 1948, and waived preliminary hearing. (For details see Ramsey v. Hand, supra.) On the same day an information was filed in the district court charging Ramsey with first degree murder.
A transcript of the proceedings in the district court of Crawford County, Kansas, relative to waiver of counsel by the petitioner discloses that pursuant to the request of the county attorney the trial court advised Ramsey concerning his right to have legal counsel. The transcript discloses Ramsey informed the trial judge pursuant to interrogatories that he was 33 years of age; that his home was in Chillicothe, Missouri; that he went to school as far as the seventh grade — two years of industrial school; and that he could read and write and understand the English language. He was then asked questions which he answered as follows:
“Judge Resler: Do you have a lawyer?
“Roy Ramsey: Do not need any.
“Judge Resler: Do you know you are entitled to one?
“Roy Ramsey: Yes sir.
“Judge Resler: The Court will appoint one as County Attorney just informed you.
“Roy Ramsey: Yes sir.
“Judge Resler: Did you see this waiver the County Attorney prepared?
“County Attorney Griffith: I will state that this is the waiver that w.e have ready for your signature, do you understand?
“Roy Ramsey: Yes sir.
“County Attorney Griffith: and we are ready to have a lawyer appointed for you.
“Roy Ramsey: Yes sir.
“Judge Resler: I will ask the Clerk of the District Court to read this Waiver to you, here in open Court.”
The clerk of the district court thereupon read the waiver to Ramsey and it was voluntarily signed and acknowledged by him. There- ■ upon the county attorney read the information, to which Ramsey entered his plea of guilty.
The transcript was certified by the clerk of the district court of Crawford County, Kansas, as being a true and correct copy of the shorthand notes taken by her at the hearing: For reasons not shown in the abstract the official court reporter was not present.
The journal entry of the trial court dated October 16, 1948, failed to recite a finding by the trial court that the áppointment of counsel by the court over Ramsey’s written waiver and objection would not be to Ramsey’s advantage.
The journal entry does, however,- disclose that the State offered in evidence a statement duly executed by Ramsey, admitting his part in the crime as charged by the information, which Ramsey read and stated to be true. This statement was admitted into evidence with the permission of Ramsey. Additional statements were offered in evidence by the .State and admitted with the permission of Ramsey after he had read such statements and acknowledged them to be true. Thereupon the trial court accepted Ramsey’s plea of guilty to murder in the first degree as charged by the information.
On the 22nd day of February, 1958, Judge Resler, being the same judge who heard Ramsey’s case on October 16, 1948, in the district court of Crawford County, entered an order nunc pro tunc correcting the journal entry in said case, which insofar as pertinent herein reads:
“. . . The Court finds that adequate notice was given to the said Roy Ramsey by registered mail. The court also finds from the records of the Court and the minutes of the trial Judge in his docket, that there was a judgment arid sentence duly pronounced and rendered in this action against the defendant, Roy Ramsey, on the - day of October, 1948, whereby it was ordered, adjudged and decreed that defendant, Roy Ramsey, be sentenced to the Kansas State Penitentiary at Lansing, Kansas, for a term of life on his plea of guilty to first degree murder but that through an oversight or omission of the then County Attorney, certain findings were omitted from the Journal Entry filed. This court further finds that there should have been a finding in the Journal Entry that although defendant, Roy Ramsey, expressly waived Court appointed counsel, this Court also found that it would not be to the said defendant, Roy Ramsey’s, advantage to have Court appointed counsel over his objection, pursuant to G. S. 1935, 62-1304, as amended.
“It Is, Therefore, Ordered that die Journal Entry of Judgment and sentence against defendant, Roy Ramsey, be corrected to cure this defect and that the following finding of the trial Court be inserted therein and made a part thereof, as though set out originally therein, to-wit:
“ ‘The Court also finds that the appointment of counsel by the Court over defendant Roy Ramsey’s written waiver and objection would not be to his, the said Roy Ramsey’s advantage’.” (Emphasis added.)
The journal entry on Ramsey’s petition for a writ of habeas corpus filed in the district court of Leavenworth County recites that the transcript of the proceedings in the district court of Crawford County, Kansas, certified by the clerk of the district court of Crawford County, Kansas, was introduced in evidence as petitioner’s Exhibit. 1. This exhibit was duly filed as a part of the petitioner’s pleadings. The journal entry further recited:
“5. That said record and transcript of said proceedings discloses that at no time did the Court express or make a finding that the appointment of counsel for the Defendant Roy Ramsey, in said action, over his objection would not be to his advantage;” (Emphasis added.)
The court further found the original journal entry of,judgment of the district court of Crawford County entered on the 16th day of October, 1948, disclosed no such finding.
The trial court concluded there was not a strict compliance with the provisions of G. S. 1947 Supp., 62-1304 (identical to G. S. 1949, 62-1304); that the trial court of Crawford County was without jurisdiction to accept a plea of guilty to the offense of first degree murder on October 16, 1948; that the nunc pro tunc order was an attempt to show something in said action that never occurred; and by reason of the foregoing the journal entry of judgment, conviction, sentence and nunc pro tunc order were and are void. .
It was admitted at the time of the habeas corpus hearing that Ramsey had served his maximum sentence pursuant to a judgment, conviction and sentence of the crime of second degree burglary and larceny entered in Case No. 4066 in the district court of Douglas County, Kansas, on the 25th day of October, 1948, and is no longer being restrained of his liberty pursuant thereto. (See Ramsey v. Hand, supra.)
From the time of our first territorial legislature in 1855 to the year 1941, our code of criminal procedure provided, in substance, that if a person about to be arraigned for a-felony be without counsel to conduct his defense and be unable to employ counsel, it was the duty of the court to assign counsel at his request. (See G. S. 1935, 62-1304.) Neither this section, nor any other, made any provision for preserving any record connected with the appointment of any counsel for an accused, and this court was confronted on many occasions with contentions growing out of the failure of an accused to be represented by counsel. (See Jones v. Amrine, 154 Kan. 630, 121 P. 2d 263, which was decided after the above section of the criminal code was amended, by treating a situation which arose prior to the amendment in 1941, where the rights of an accused to representation by counsel were not explained to him by the court.)
To forestall such controversies and to provide for a definite and specific record in the trial concerning the appointment of counsel for the accused and of matters pertinent thereto, the legislature amended the section of the above statute by the enactment of Laws of 1941, ch. 291, § 1, now appearing as G. S. 1949, 62-1304. While the appellee in the instant case was tried in 1948 the applicable provisions are precisely as set out in G. S. 1949, 62-1304, to which reference will hereafter be made. That portion of the above statute applicable to this appeal reads:
“[1] If any person about to be arraigned upon an indictment or information for any offense against tire laws of this state be without counsel to conduct his defense, it shall be the duty of the court to inform him that he is entitled to counsel, and to give him an opportunity to employ counsel of his own choosing, if he states that he is able and willing to do so. [2] If he does ask to consult counsel of his own choosing, the court shall permit him to do so, if such counsel is within the territorial jurisdiction of the court. [3] If he is not able and willing to employ counsel, and does not ask to consult counsel of his own choosing, the court shall appoint counsel to represent him, unless he states in writing that he does not want counsel to represent him and the court shall find that the appointment of counsel over his objection will not be to his advantage. [4] A record of such proceeding shall be' made by the court reporter, which shall be transcribed and reduced to writing by the reporter, who shall certify to the correctness of such transcript, and such transcript shall, be filed and made a pari of the files in the cause. [5] The substance of the proceedings provided for herein shall be entered of record in the journal and shall be incorporated in the journal entry of trial and judgment . . .” (Emphasis added and numbers inserted.)
The quoted provisions of the above statute were before the court in Davis v. Hudspeth, 161 Kan. 354, 167 P. 2d 293, which held:
“When any person is about to be arraigned upon an information or indictment all of tire provisions of G. S. 1943 Supp. 62-1304, are mandatory and strict compliance must be made therewith in order to give a court jurisdiction to accept a plea of guilty.” (Syl. ¶ 1.)
The foregoing statement of the law with reference to the provisions of 62-1304, supra, as amended in 1941 (now G. S. 1949, 62-1304) has been consistently followed in Brandt v. Hudspeth, 162 Kan. 601, 178 P. 2d 224; Selbe v. Hudspeth, 175 Kan. 154, 259 P. 2d 204; and State v. Oldham, 178 Kan. 337, 285 P. 2d 775.
Our present decision must be reconciled with these cases.
The foregoing rule announced in the Davis case was upon a record which failed to disclose: (1) That the district court advised the petitioner of his right to counsel; (2) that the petitioner waived in writing his right to have counsel appointed for him; and (3) that the court made a finding to the effect that the appointment of counsel over the objection of the accused would not be to his advantage. It was therefore said the record wholly failed to show that the district court complied with the mandatory enactment of the legislature. Under these circumstances it was relatively simple to state the rule as above quoted.
The facts on the point in question in the Brandt and Oldham cases were almost identical to those upon which the decision was made in the Davis case.
In some respects the facts in Selbe v. Hudspeth, supra, are similar to the facts presently before the court. There the petitioner alleged that he had not been properly advised as to his right to counsel; that he was not advised he was entitled to a trial by jury; and that had he been so advised he would have entered a plea of not guilty. At a later date the petitioner filed an amendment to his petition expanding on the advice given him as to his rights by a deputy sheriff. The accused had signed a written waiver to the effect that he did not wish to be represented by an attorney. The journal entry disclosed no finding that appointment of counsel would not be to the advantage of the accused, nor was there any statement showing compliance as to the completion of the record. Further, the court reporter was unable to find notes for the period covering the dates in question. This was interpreted as a concession that even if the court reporter made a record of the proceeding, he did not transcribe those notes, certify the correctness of the transcript and file the same as the statute requires. The court stated in the Selbe case the purpose of the statute was to provide for a record that disclosed fully what occurred, so that there could be no controversy as to what advice was given to the accused by the court and his responses and answers to any questions asked him or as to whether the trial court made the findings requisite under the statute. The court further stated:
“. . . The statute placed plain and unambiguous duties upon the trial court as well as upon the court reporter and their failure to perform those duties cannot be condoned. The journal entry of judgment on which the respondent relies does not disclose compliance with the statutory mandate.” (p. 157.)
In other words, the Selbe decision has made it clear that the primary right of an accused to a trial safeguarded as provided by the statute must be disclosed by a record which shows such rights were safeguarded.
On a factual basis it is quite apparent the foregoing decisions can be distinguished from the facts in the present case. We are, however, confronted with the broad language used in Syllabus ¶ 1 of the Davis case and the following statement in Selbe v. Hudspeth, supra:
. . The language used in the statute is clearly a command to the trial court and the court reporter, and cannot be interpreted as being merely directory, nor as leaving something to discretion.” (pp. 156, 157.)
Clearly, the force and effect of the foregoing language, if interpreted to mean that all provisions are jurisdictional, is compromised by language later used in the opinion as follows:
“. . . What might be the situation if otherwise complete proceedings were taken by the court reponer, duly transcribed and ceitified, but not filed is not the question before us . . .” (p. 158.) (Emphasis added.)
Upon the facts and circumstances presented in the instant case we are directly confronted with a determination as to which of the above quoted provisions of 62-1304, supra, are jurisdictional to the acceptance of a plea of guilty from an accused where he is not represented by counsel.
It cannot be successfully argued that the jurisdiction of the trial court to accept a plea of guilty from an accused is dependent upon conditions subsequent to the acceptance of such plea. A careful reading of Syllabus ¶ 1 in the Davis case inherently discloses a limitation of the jurisdictional provisions in 62-1304, supra. It would be absurd to argue that a trial court was required to halt proceedings in the trial of a case, after an accused had entered a plea of guilty, to have the court reporter transcribe the proceedings to that point, reduce them to writing and file the transcript disclosing compliance with all provisions in the statute prior to the acceptance of such plea of guilty. The same would be true concerning the entry of the substance of such proceedings of record in the journal and their incorporation in the journal entry of trial and judgment.
It must therefore be held that only those primary rights of an accused to a trial, safeguarded as provided by the statute, are jurisdictional to the ácceptance of a plea. These jurisdictional requirements under the above quoted provisions of 62-1304, supra, are the first three complete sentences identified by numbers [1], [2] and [3]. Proof that the foregoing jurisdictional requirements have been met, when challenged, can be established only by a record of such proceedings made as provided in the statute. These provisions are identified by numbers [4] and [5] in the quoted portion of 62-1304, supra.
The foregoing interpretation of 62-1304, supra, is not inconsistent with the prior decisions of this court in Davis v. Hudspeth, supra; Brandt v. Hudspeth, supra; Selbe v. Hudspeth, supra; and State v. Oldham, supra, when each of these cases is interpreted in relation to the facts with which the court was there confronted.
Did the trial court in the instant case make a finding that the appointment of counsel over the objection of the accused would not be to his advantage?
It must be observed the wording of the provision “and the court shall find that the appointment of counsel over his objection will not be to his advantage” does not require such finding to be an express finding which the trial court state in the record of the trial proceedings. If not expressly stated, such finding would not appear in the transcript of the record of such proceedings, and no provision of the statute requires that it appear in the transcript. However, if such finding was in fact made by the trial judge, it must appear in the journal entry of the trial and judgment.
Where an accused is not represented by counsel and the trial court has fully advised him of his right to counsel as provided in the statute, the execution of a written waiver by the accused with full knowledge of his rights completes the jurisdictional requirements prior to the acceptance of a plea of guilty so far as the accused himself is concerned. The finding that the appointment of counsel over the objection of the accused will not be to his advantage is a function of the trial judge. It involves a mental process.
That everyone is presumed to know the law is a rule so well established that it requires no citation of authorities. A fortiori, a trial judge is presumed to know the law. Referring to the transcript of the record, upon which the appellee relies, it is implicit that the trial court in accepting the accused’s written waiver of counsel and plea of guilty, believed and duly found the appointment of counsel over the accused’s waiver and objection would not have been to his advantage. In this case it must be noted that the trial court did not accept Ramsey’s plea of guilty until after the county attorney had presented the evidence.
The order nunc pro tunc, entered by the same trial judge in the district court of Crawford County who tried the case resulting in the conviction of the accused, recited that it was through an oversight the finding in question was omitted from the journal entry filed. A fair interpretation of the recitals in the nunc pro tunc order is that the trial court actually made the required finding at the time of trial, but through inadvertence such finding was omitted from the journal entry. It must be assumed that the trial judge acted in good faith in correcting the journal entry by order nunc pro tunc in order that it might accurately reflect what transpired in the conviction proceedings. Such diligence and good faith on the part of the district courts must necessarily be assumed in all cases.
It has been consistently held that the power to enter judgments, decrees and orders nunc pro tunc is inherent in courts, and if the journal entry fails to accurately reflect the judgment actually rendered, it is the duty of the court to make it speak the truth. (Cazzell v. Cazzell, 133 Kan. 766, 3 P. 2d 479; Bush v. Bush, 158 Kan. 760, 150 P. 2d 168; and Tincknell v. Tincknell, 141 Kan. 873, 44 P. 2d 212.) While the - foregoing cases are all civil, no reason is apparent why the same reasoning should not apply to a criminal case. In Wilson v. Hudspeth, 165 Kan. 666, 198 P. 2d 165, the journal entry in a criminal action was defective and the court outlined a procedure to supply the inadvertent omissions by a nunc pro tunc order in a habeas corpus action.
When a motion for an order nunc pro tunc is pending, the trial judge’s personal recollection of the facts and circumstances under which the judgment was rendered and of the court’s purpose and intention in rendering it has the probative force of evidence bearing on the propriety of granting or denying the motion presented for determination. (Cazzell v. Cazzell, supra.) This principle was also recognized in Tincknell v. Tincknell, supra.
In the instant case the district court of Crawford County had before it the factual question of whether it had found that- ap pointment of counsel would not have been to the appellee’s advantage. The court had a right to rely, not only on the transcript, but on its own recollection. The court did so, and determined that the disputed finding was made but was inadvertently omitted from the journal entry. It was thus proper for the court to correct the journal entry nunc pro tunc in order that it might accurately reflect what actually transpired in the conviction proceedings. It follows that the jurisdictional requirements of 62-1304, supra, have been fully met.
It is clear that the filing of a journal entry nunc pro tunc has the same effect as if filed in the first instance. The function of a nunc pfo tunc order is not to make an order now for then, but to enter now for then an order previously made. (Bush v. Bush, supra.) The substance of the findings made by the district court of Leavenworth County as reflected by its journal entry was to collaterally attack the nunc pro tunc order made by the district court of Crawford County. This cannot be done. A nunc pro tunc entry of record is competent evidence of the facts which it recites. It is conclusive on any other court in which the record is offered in evidence, and it cannot be impeached collaterally. (49 C. J. S., Judgments, § 121, pp. 255, 256; Miller v. Muir, 115 Ind. App. 335, 56 N. E. 2d 496; In re Cannon's Guardianship, 182 Okla. 171, 77 P. 2d 64; and Allen v. Bagley and F. & H. Sav. & L. Assn., 234 Mo. App. 891, 133 S. W. 2d 1027.)
In Gates v. Gates, 160 Kan. 428, 163 P. 2d 395, a divorce hearing was held on June 4,1943, and an entry on the trial docket indicated that the case was taken under advisement on that date. On March 9, 1944, the court stated that a judgment of divorce had been rendered on June 4, 1943, and thereafter on November 30, 1944, a journal entry of such judgment was filed. On appeal to this court an extensive review of the authorities dealing with nunc pro tunc orders in general was made and it was concluded:
“While none of the authorities to which we have heretofore referred deals with the exact situation confronting us at the moment the principles involved are similar in character, and it must follow that if the trial docket, the journal entry of judgment and the court journal may be corrected by a court to speak the truth, it may, where the question of whether or not it has actually rendered a judgment is raised by motion to reopen the case and permit additional testimony, determine that matter on personal recollection of what its decision was at the time the case was before it. To hold otherwise would only result in confusion and intolerable consequences. We therefore hold that judgment for divorce and custody of tire minor child was rendered on June 4, 1943, as found by the trial court and that its decision on that factual question was conclusive and is not open for review on appeal.” (p. 435.)
It may be argued by analogy that if the factual finding of the trial court as to what transpired before it is conclusive on appeal, surely such determination made by the district court of Crawford County in the instant case is not subject to a collateral attack in a habeas corpus action in the- district court of .Leavenworth County.
The appellant admits, after an examination of the original record and transcript in Ramsey’s conviction proceeding, there is no express showing therein that the court found the appointment of counsel over Ramsey’s objection would not be to his advantage, and further admits there was no transcript of such proceeding filed. The omission of the finding from the transcript has been answered. The failure to file the’ transcript, not being jurisdictional, has been waived by the appellee in asserting the transcript and in relying upon it to establish his grounds for release.
Furthermore, the fact that the clerk of the district court of Crawford County took notes and prepared the transcript, which she certified to be a true and correct copy of the shorthand notes taken by her at the hearing, and not the court reporter as required by the statute, cannot be asserted by the appellee, since this is likewise not jurisdictional to the acceptance of a plea of guilty. This requirement has been waived by the appellee in asserting the transcript of the record made by the clerk and in relying upon it to establish his grounds for release. The record of the proceedings asserted by the appellee, together with the original journal entry and the nunc pro tunc order, established that the jurisdictional requirements of 62-1304, supra, have been met by the trial court prior to its acceptance of the appellee’s plea of guilty.
It must be assumed in the absence of any evidence to the contrary that the clerk of the district court of Crawford County was directed by the trial judge to report the proceedings of the trial and was therefore acting as the court reporter. Insofar as the record before this court discloses, her shorthand notes of the trial proceedings have not been challenged as being inaccurate. The clerk transcribed these notes and reduced them to writing whereupon she certified the transcript to be correct. Upon this transcript the appellee relied and asserted it as a true and correct record of the trial proceedings.
We therefore hold the primary rights of the accused to a trial, safeguarded as provided in 62-1304, supra, were properly disclosed by a record which shows that such rights were safeguarded.
The judgment of the district court of Leavenworth County granting the appellee’s petition for a writ of habeas corpus and directing his discharge is reversed. | [
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The opinion of the court was delivered by
Kaul, J.:
On February 9, 1973, appellee (Robert H. Schreiner) was granted a divorce from appellant (Charlotte J. Schreiner). Robert was awarded custody of the couple’s only child (Tracy Kristine), who was three years of age at the time. Some six months later Charlotte filed a motion for change of custody which was heard and denied on October 24, 1973. Charlotte appealed from the judgment rendered on February 9 and the order overruling her motion for change of custody. On December 20, 1973, the trial court sustained Charlotte’s motion to consolidate her appeals.
The Schreiners were married on June 4, 1969, in Pratt where Charlotte’s parents resided. Soon after their marriage the couple settled in Wichita where Robert was employed at a grocery store and attended Wichita State University part-time. During a part of the marriage Charlotte supplemented the family income by babysitting and working as a secretary.
The evidence discloses that in 1971 the marriage began to disintegrate. Charlotte testified that after having thought about the matter for a number of months she concluded she no longer loved her husband and could not stand to live with him. On October 28, 1972, Charlotte demonstrated her feelings of marital discontent by spending the night with another man. The next day 'Robert unsuccessfully urged Charlotte to see their parish priest or a marriage counselor in an attempt to work out their difficulties. On October 30 Robert and Charlotte took Tracy to Pratt to stay with Charlotte’s parents. On their return to Wichita Robert agreed that he would move out of the home for a week in order to give Charlotte time to think. Charlotte was supposed to pick up Tracy on either Friday or Saturday of the following week and return her to Wichita. Charlotte called her parents and informed them she was ill and unable to get Tracy. About midnight Sunday Charlotte’s mother called Robert and asked that he come for Tracy, which he did. Robert later learned that Charlotte had not been ill, but was duck hunting with a friend. Robert testified that at that point he concluded he should move back into the home and take care of Tracy. He further testified that Charlotte agreed to move out and get an apartment where she could keep Tracy part of the time, but “she agreed to leave Tracy with me and let me have custody at the time.”
On November 13, 1972, Robert filed his petition for divorce and by ex parte order was granted temporary custody of Tracy.
The voluminous record (270 pages) discloses considerable testimony of the parties and their respective friends and relatives at both the trial and on the motion to change custody. Included in the evidence was a letter written to Robert by Charlotte’s mother in which the mother stated that Charlotte was not “in the right shape to take care of Tracy at the present time.” Some of the testimony adduced was in conflict.
In granting a divorce to Robert the trial court found:
“. . . [T]hat the plaintiff has performed every duty devolving upon him as husband of the defendant, but that his wife, the defendant, has been guilty of certain actions which constitute gross neglect of duty towards the plaintiff. . . .”
Concerning child custody the trial court’s findings appear as follows:
“The Court Further Finds that the evidence discloses in this case that on more than one occasion the defendant did stay out for a period of all night, that on one occasion she informed her parents she could not pick up the child because she was sick, but instead was duck hunting with a friend; on or about November 6, 1972 she left the homestead and left the minor child, Tracy, with the plaintiff; she has applied for welfare and did receive funds for a minor child that was not in her custody; that the clothing was not always clean, nor were the meals always properly prepared.
“The Court Further Finds that it is the welfare and best interests of the minor child, Tracy K. Schreiner, that her permanent care, custody and control be awarded to the plaintiff. In that respect the Court finds that plaintiff's Exhibit 1, introduced during the trial of this matter, be made a part of the findings, a coj>y of which is attached hereto and made a part hereof the same as if fully set out herein.”
The court gave Charlotte rights of reasonable visitation.
At the hearing on Charlotte’s motion for change of custody much of the testimony introduced was a restatement of testimony given at the trial. The trial court found in pertinent part:
“There were sufficient findings to warrant the custody of Tracy in Mr. Schreiner in February. There has been no evidence presented to show that that home and that custody has been detrimental to the child. There has been no showing that that custody has not been in the best interests of the child. There is no showing in any way that Mr. Schreiner has negated any responsibilities falling upon him as a homemaker. Certainly sympathies enter into feelings toward anyone who wants custody of their child, be that a father or a mother, and does not have custody of the child, and it’s easy to get emotional over these situations. But the Court feels strongly that a permanent home is an important factor in the stability of a growing child, and there is nothing to dissuade the Court from the opinion that Mr. Schreiner is performing his functions as a homemaker in the best interests of this child.
“The evidence at this hearing is that for a short period of time Mrs. Schreiner has engaged in a different occupation. Certainly it would appear an occupation with a good future. And she is to be commended for it.
“The evidence further shows that visitation has been abundant, both on the part of the grantor and the grantee, and that a parent who does not have custody cannot expect and should not expect to spend as much time with that child as if she had custody. . . .”
On appeal Charlotte (appellant) raises two main points. (1) That the trial court abused its discretion in placing custody of the child with appellee (Robert) at the divorce trial; and (2) that the trial court abused its discretion in not changing custody of the child from Robert to Charlotte on her motion for change of custody.
Appellant sets out five subpoints under point one — each of which are apparently advanced to illustrate a separate example of the trial court’s alleged abuse of discretion. Most of these examples merit little discussion. In subpoint one appellant asserts that appellee breached an agreement that she would have temporary custody of the child and that appellee induced the court into giving him temporary custody by leaving with it the impression appellant had abandoned the child and the home. The record is. totally devoid of support for these arguments. If appellee actually attempted to mislead the court in any manner appellant could have raised and clarified this issue at the divorce hearing — she did not do so.
In subpoints two, three and four appellant argues the trial court placed undue emphasis on (1) alleged shortcomings, in her care of Tracy; (2) a letter from Charlotte’s mother to Robert; arid (3) testimony that on more than one occasion Charlotte stayed out all night. Appellant’s arguments are not supported by the record. All of the matters complained of were relevant evidentiary factors properly before the court and deserving of consideration in deciding the question of custody. The weight to be given such evidence was for determination by the trial court which heard and observed the witnesses.
In her fifth subpoint under point one, appellant contends the trial court’s statements at the conclusion of the trial indicated bias against her arid in favor of appellee. The statement by the court which appellant complains of reads as follows:
"... I can recall one time in the last eight years where on a divorce case there was absolutely no fault on the part of one of the spouses as shown by the evidence. This is certainly that situation. The only ground for divorce stated against Robert Schreiner was that Mrs. Schreiner doesn’t love him. I find that difficult to — difficult statement upon which to base any ground for divorce. His conduct during the marriage from the evidence appears to be impeccable. He appears in no way to have disregarded his duties as a father and as a husband, and certainly with the evidence in this line, the best interests of this child would be served if the permanent care, custody and control were placed in him. . . .”
The statement appears to be nothing more than a summary by the trial court of the reasons for its decision. There is no basis for a claim of bias in this regard. In all of her arguments in support of her first point appellant has actually done nothing more than suggest that a reexamination of the evidence, in the light most favorable to her, would have permitted different findings. Appellant overlooks the statement appearing — time and time again — in our opinions that this court is not concerned with conflicting evidence, nor with the weight and credibility to be accorded the testimony of witnesses; that responsibility in these areas rests with the trial court which is in the best position to judge such matters. The interest of an appellate court is directed only to such evidence as supports the findings of the trial court, and not to that which might tend to establish contrary findings or a different result. An appellate court must accept the evidence which is most favorable to the prevailing party and where there is substantial competent evi dence in the record to sustain a judgment — this court must sustain it rather than speculate as to what other dispositions the record might support. (See Wehking v. Wehking, 213 Kan. 551, 516 P. 2d 1018; and Vols. 1-3 Hatcher’s Kansas Digest [Rev. Ed., Permanent Supplement], Appeal and Error, §§ 502-508.) The instant record is replete with evidence which supports the findings of the trial court.
In her second major point, appellant asserts four instances in which she claims the trial court abused its discretion in not sustaining her motion to change custody.
First, appellant says that the practical effect of the trial court’s denial of her motion to change custody is that Tracy has been and still is in the care and control of her paternal grandparents. Appellee admits that he was assisted by his parents in caring for Tracy while he was at work. This court has never held that a divorced father, who is otherwise entitled to custody of his child, should be deprived thereof simply because the necessities of making a living compel him to temporarily entrust care of the child to grandparents.
The cases cited by appellant such as Bailey v. Bailey, 164 Kan. 653, 192 P. 2d 190; and Stout v. Stout, 166 Kan. 459, 201 P. 2d 637, are not in point; all deal with situations where the issue of custody was between a parent and grandparent. These cases all stand for the rule last reiterated in Browning v. Tarwater, 215 Kan. 501, 524 P. 2d 1135, that a parent who has not been found to be an unfit person to have custody where that question is in issue, is entitled to custody as against grandparents or others who have no' permanent or legal right to custody. An assertion similar to that made here was considered by the court in Dodd v. Dodd, 171 Kan. 46, 229 P. 2d 761, wherein the court stated:
“. . . We have no quarrel with the rule announced in the foregoing decisions. The trouble, from appellant’s standpoint, is that such rule applies only to cases where the sole issue before the trial court is whether the parents or the grandparents are entitled to custody of minor children and has no application to a case where both parents are contending for their custody. We have never held that a father whose home has been broken up and who is otherwise entitled to custody of his child can be deprived of that custody simply because the exigencies of making a living compel him to keep it in the home of his parents or that a trial court abuses its discretion when — as here— it requires him to keep it there so long as such court deems it to be to the best interest of the child that that be done.” (P1. 49.)
Appellant admits that should she be given custody of Tracy she likewise would have to leave the child with another during those hours she was at work or school.
Appellant’s other assertions in support of her second point are: (2) Jealous exercise of the care, custody, and control of Tracy by her father and his parents has resulted in denial of reasonable visitation rights of the mother, and estrangement between the child and her mother; (3) appellant is concerned with changes and regressions in Tracy’s development since she has been in the care and custody of appellee and his parents; and (4) the court abused its discretion in not recognizing appellant’s “change in circumstances” and her fitness and ability to care for Tracy and in not changing custody from appellee to her.
With respect to denial of visitation rights, appellant’s claim is totally unsupported by the record. The trial court found that “visitation has been abundant” and the evidence fully supports the finding. The record shows that only on one or two occasions has appellant’s visitation been hindered by a misunderstanding as to time or by reason of inconvenience on the part of appellee. The evidence discloses that appellant has been permitted to visit and usually to take the child during the afternoon and evening on an average of three times a week.
There is no evidence that Tracy’s development has regressed. All of the evidence on this point is to the contrary and the trial court so found.
In support of subpoint four appellant relies heavily upon the decision in St. Clair v. St. Clair, 211 Kan. 468, 507 P. 2d 206. Appellant asserts that refusal to grant her custody because of Tracy’s tender age amounts to' abuse of discretion. Appellant has misinterpreted our decision in St. Clair, as was the case in Dalton v. Dalton, 214 Kan. 805, 522 P. 2d 378, and Hardenburger v. Hardenburger, 216 Kan. 322, 532 P. 2d 1106, wherein we pointed out the proper interpretation to be given St. Clair. In the instant case the record and the court’s findings disclose that all of the evidence for rehearing was carefully considered by the trial court.
This court has always recognized the value of maternal love and care where children are of tender age, and absent a finding of unfitness, a mother is ordinarily entitled to the custody of a child of tender years. There is no- fixed rule, however, requiring that the custody of a minor child be awarded to its mother rather than to its father. (Lewis v. Lewis, 217 Kan. 366, 537 P. 2d 204; Hardenburger v. Hardenburger, supra; and Moudy v. Moudy, 211 Kan. 213, 505 P. 2d 764.) As stated in Moudy and Dalton, and most recently in Hardenburger, where the custody of children is in issue between parents, the primary or real question for determination is what best serves the interest and welfare of the children, and all other issues are subordinate thereto.
All of appellant’s argument on appeal, both as to the court’s original decree and its ruling on her motion for change of custody, go to abuse of discretion. In Stayton v. Stayton, 211 Kan. 560, 506 P. 2d 1172, Justice Prager speaking for the court in a divorce action described abuse of discretion in this language:
“Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion. All judicial discretion may thus be considered as exercisable only within the bounds of reason and justice in the broader sense, and only to be abused when it plainly overpasses those bounds.” (p. 562.)
In the instant case the appellant filed her motion for change of custody within a few months after the original decree was entered. The evidence shows that for a short period of time appellant has been involved in a different occupation. No evidence was presented which showed appellee was neglecting his responsibilities or that Tracy’s best interest would be better protected by a change of custody. The applicable rule is stated in Frier v. Lancaster, 169 Kan. 368, 219 P. 2d 358, wherein we held:
“The paramount issue in any hearing between parents involving a change in custody of their child is not the desire or wishes of the parents but whether circumstances and conditions have been so altered as to make a change in custody advisable in view of the best over-all interests of the child." (Syl. ¶ 4.)
After a careful review of the entire record we are unable to say that abuse of discretion has been shown in the instant case with respect to either of the custody orders appealed from.
The judgment is affirmed.
Fbomme, J., not participating. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an original action in quo warranto to test the constitutional validity of K. S. A. 22-3707 which provides in part that members of the Kansas adult authority “be appointed by the governor with the advice and consent of the senate.”
In this contest between rival claimants for a position of membership on the Kansas adult authority, the defendant has challenged the act on several constitutional grounds. Hearing has been expedited by a preferential setting of the case for argument upon joinder of the issues and stipulation of the facts. The case has been briefed and was orally argued by the parties on June 2, 1975.
Upon due consideration by a unanimous court, we conclude the challenged act is not constitutionally infirm. Pursuant to K. S. A. 60-1204, judgment is rendered in favor of plaintiff ousting the defendant from membership on the Kansas adult authority, and the defendant is ordered to deliver to the plaintiff all the books and papers in his custody or within his power belonging to the Kansas adult authority. This brief opinion announcing our decision will be implemented by a formal opinion to be filed when it is prepared.
Fromme, J., not participating.
Pursuant to Article 3, section 6 (†) of the Constitution of the State of Kansas, the Honorable Frank R. Gray, judge of the district court of the 7th Judicial District was assigned by the Chief Justice to participate in this court’s decision in the foregoing case, vice Fromme, J. | [
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The opinion of the court was delivered by
Fatzer, J.:
This action was commenced by the appellee, McKinley-Winter Livestock Commission Company, a corporation, against the appellant, Joe Fletcher, for the recovery of money based upon an alleged oral agreement. Judgment was rendered in favor of the plaintiff and the defendant has appealed.
Because of their importance to questions presented, we first refer to the pleadings of the parties. The plaintiff’s petition states the subject matter of the action to be:
“That on or about the 3rd day of June, 1955, the defendant, Joe Fletcher, and. one Ray Holder of Independence, Missouri, entered into an oral contract with plaintiff for the purpose of holding a Shetland pony auction in plaintiff’s sales barn at Dodge City, Kansas. That according to the terms of said contract the plaintiff was to charge a Two Dollar ($2.00) per head commission for each Shetland pony sold. That plaintiff was to bank the sale and receive payment from all purchasers of ponies or other miscellaneous items sold, and was to pay the owners of ponies and other miscellaneous items sold with plaintiff’s checks. That defendant, Joe Fletcher, and said Ray Holder were partners in this venture. That said partners were to be responsible for any less which might occur to plaintiff by virtue of the non-payment of any checks received from purchasers at this auction.
“That during the course of said auction on or about June 3, 1955, one Bob Smith purchased a number of Shetland ponies and other miscellaneous items for a total sum of Four Thousand Ninety-one and 36/100 Dollars ($4,091.36). That said Bob Smith issued his check on an Arkansas City, Kansas, bank, and that payment was refused by said bank for the reason that the said Bob Smith had no funds and no account in said bank.” (Emphasis supplied.)
Summarized, the defendant’s answer contained a general denial, and then admitted all of the allegations of the petition except the last sentence of the first paragraph italicized above; it further alleged that if plaintiff did not in fact receive payment for the ponies and other items purchased by Smith, it nevertheless delivered the ponies and items to Smith and that failure to receive payment was due to the negligence of the plaintiff, and further, that if payment was not received by plaintiff, it nevertheless delivered the items purchased without receiving payment, it being the duty of plaintiff to receive payment as alleged in the petition, and admitted in the answer. Thus, the only material allegation denied by the defendant was that “said partners were to be responsible for any loss which might occur to plaintiff by virtue of the non-payment of any checks received from purchasers at this auction.”
As to the defense of negligence, the plaintiff’s reply alleged that the defendant was estopped to claim negligence in taking the checks of purchasers because he assured the plaintiff there was no need to make inquiry concerning checks given by any purchaser at the auction.
On pretrial conference, the parties agreed that the only factual issue was the plaintiff’s allegation and its denial by the defendant that “said partners were to be responsible for any loss which might occur to plaintiff by virtue of nonpayment of any checks received from purchasers at this auction.” It was stipulated that plaintiff made no investigation or inquiry concerning the validity of the checks given by Smith or his credit with the bank upon which the checks were drawn; further, that the plaintiff delivered to Smith the items purchased by him at the auction and paid for by the checks.
The action was tried by a jury upon the issues joined. The evidence showed that sometime prior to June 3, 1955, the alleged oral agreement was made with one Karl Winter on behalf of the plaintiff and by Fletcher and Holder on behalf of the defendant.. Winter testified that both Fletcher and Holder were present when the final agreement was made, whereas Holder testified that he alone made the agreement on behalf of the defendant. The point is immaterial because it was admitted that Holder was Fletcher’s partner. It was also shown that the checks given by Smith were not paid by the bank upon which they were drawn. An unusual feature of the checks was that Smith’s signature was printed.
There was testimony by McKinley-Winter’s witnesses, denied by the defendant, as to the responsibility of Fletcher and Holder for the nonpayment of checks. Winter testified that when the final agreement was made he told the defendant and his partner “our help will work for them, but that we would assume no responsibility whatever except that we would work for them and do whatever they wanted us to do in handling and putting over the sale . . . (that) . . . we didn’t know these horsemen any more and was not acquainted with pony buyers at all; that we never held a pony sale, and that if they felt any questionable characters might be buying horses or ponies there, if they would get the word into our office, that we would wire on any checks that they thought necessary,” and that the defendant and his partner said “that was O. K.” Winter also testified that Holder replied “You have no worry at all about these checks. We know all these boys and after all, there isn’t anybody but millionaires buying these ponies. Their checks will be O. K.” In this connection, the allegations of the plaintiffs petition must be accepted as true, that plaintiff was to bank the sale and receive payment from all purchasers of ponies or other miscellaneous items sold and was to pay the owners of ponies or other miscellaneous items sold with plaintiff’s checks.
At the conclusion of the plaintiffs evidence, the defendant demurred upon the ground that it was insufficient to prove the cause of action alleged, and that the alleged oral agreement violated the statute of frauds and was unenforceable. The demurrer was over ruled, and the defendant introduced his evidence. At the conclusion of all the evidence, the defendant moved for a directed verdict upon the same grounds as stated in the demurrer, and for the further reason that the pretrial stipulation of the parties showed it was the plaintiff’s duty to receive payment, but that nevertheless it delivered the items to Smith without receiving payment therefor. The motion was also overruled.
The jury returned its general verdict in favor of the plaintiff, along with its answers to three special questions submitted by the court:
“1. Did the defendant or his partner, Ray Holder, tell any of the servants, agents or employees of McKinley-Winter Livestock Commission Co., a corp., that plaintiff should accept all checks given for purchases at the sale, without investigation or inquiry concerning the validity of such checks or the responsibility of the purchaser? Answer: Yes.
“2. Did defendant or Ray Holder agree to make good the bad check of any purchaser at the sale? Answer: The juiy finds no such evidence.
“3. Did plaintiff deliver the ponies and other items purchased at the sale by Hob Smith to said purchaser without receiving payment therefor? Answer: No.”
The defendant timely filed motions for a new trial, to set aside the jury’s answer to special question No. 3 as being contrary to the stipulation of facts between the parties, and for judgment non obstante veredicto.
The plaintiff filed a motion to strike special question and answer No. 2 upon the grounds that it was “ambiguous and misleading and tended to confuse the jury.” In its motion the plaintiff conceded there was no evidence that the defendant agreed “to make good the bad check of any purchaser at the sale” as appears in the answer to special question No. 2, but alleged that if the purpose of the question was to inquire of the jury whether the defendant or Holder agreed to be responsible for any loss which might occur to plaintiff by virtue of the nonpayment of any check received from purchasers at the pony auction, then the answer was contrary to the evidence because Karl Winter testified to such an agreement; further, that if such was the purpose of the question, it should have been phrased in the language of the agreement, as alleged in the petition, and as shown by the testimony.
The trial court overruled the defendant’s motion for a new trial, sustained his motion to set aside the answer to special question No. 3, and overruled his motion for judgment non obstante veredicto. It sustained the plaintiff’s motion to strike special question and answer No. 2, and rendered judgment upon the general verdict in favor of the plaintiff in the amount of $4,091.36. Hence this appeal.
The defendant’s contentions that the trial court erred in overruling his demurrer to the plaintiff’s evidence, and in overruling his motion for a directed verdict, may properly be considered together. The defendant asserts there was no evidence to support the plaintiff’s allegation that the defendant orally agreed “to be responsible for any loss which might occur to plaintiff by virtue of the nonpayment of any checks received from purchasers at this auction.”
It would serve little purpose to detail all the evidence as to whether the alleged oral contract was sufficiently established to justify the trial court in submitting the case to the jury, nor would its recital usefully serve the bench and bar of the state. Suffice it to say we have carefully examined the testimony of all the plaintiff’s witnesses in accordance with the rule that in testing the sufficiency of evidence as against a demurrer we will consider all of the plaintiff’s evidence as true, together with all reasonable inferences to be drawn therefrom, disregard that which is unfavorable to the plaintiff, and not weigh any part that is contradictory nor weigh any differences between the direct and cross examination and if, when so considered, there is any evidence which supports or tends to support the plaintiff’s case on any theory, the demurrer should be overruled (Drake v. Moore, 184 Kan. 309, 336 P. 2d 807 and cases therein cited; Creten v. Chicago, Rock Island & Pac. Rld. Co., 184 Kan. 387, 396, 337 P. 2d 1003), and conclude that the trial court did not err in overruling the defendant’s demurrer to the plaintiff’s evidence upon the ground that it was not sufficient to prove the cause of action alleged. While the evidence was meager and tended to fall below the standard imposed upon the plaintiff to prove the terms of the alleged oral agreement, we think there was sufficient inferences to be drawn therefrom which permitted the trial court to overrule the demurrer and submit the case to the jury.
In view of conclusions hereafter announced, which require a reversal of this case, we deem it unnecessary to discuss and decide the second question raised by the demurrer; that is, whether the alleged oral agreement violated the statute of frauds and was unenforceable. Where a reversal is granted by this court, it ordinarily will not determine in advance questions which may or may not arise during a retrial of the cause, or anticipate what the evidence will be, or what rulings the trial court may or may not make with respect to its presentation (Hook v. Snell, 180 Kan. 422, 304 P. 2d 516). We add, however, that we do not think the trial court erred in overruling the second ground of the motion for a directed verdict, since it pertained to the question of the plaintiff’s negligence under the pleadings and the evidence and was one of fact to be submitted to the jury under proper instructions.
We think the trial court erred in sustaining the plaintiff’s motion to strike special question and answer No. 2. The plaintiff contends the question was ambiguous, misleading and tended to confuse the jury. As previously indicated, its motion to set aside the question conceded there was no evidence the defendant agreed “to make good the bad check of any purchaser” at the sale, and alleged there was evidence the defendant agreed “to be responsible” to plaintiff for any loss which might occur “by virtue of the nonpayment of any checks” received from purchasers at the pony auction.
The contention is nothing more than a play upon words. The language employed in special question No. 2 was not essentially different than the oral contract alleged in the petition. The meaning is clearly the same. The term “bad check” has a common and well understood meaning. It means a check not paid upon presentation. When that term is used with respect to an individual’s check, the phrases “to be responsible for” and “to make good” such a check mean exactly the same thing to a layman. Although couched in different language, the oral contract as alleged in the petition was clearly and fairly expressed by the court in question No. 2, which asked the jury to decide the real issue involved in the lawsuit. The question expressed the precise issue involved, and, instead of confusing the jury, we think it tended to make that issue more readily understood.
Special questions have no prescribed form. The court has the discretion as to the manner and form of special interrogatories and the duty of supervising the form of special questions so as to make them pertinent to the issues involved (Saunders v. Railway Co., 86 Kan. 56, 119 Pac. 552; Doty v. Crystal Ice & Fuel Co., 122 Kan. 653, 253 Pac. 611; Dyer v. Keith, 136 Kan. 216, 14 P. 2d 644; Powell v. Kansas Yellow Cab Co., 156 Kan. 150, 131 P. 2d 686). Where, as in the instant case, that duty is complied with, mere variance in languages becomes immaterial (see Cooper v. Seaverns, 97 Kan. 159, 155 Pac. 11; Jones v. Gill, 145 Kan. 482, 486, 66 P. 2d 1033).
Moreover, the record shows the plaintiff made no objection to the form of question No. 2 prior to its submission to the jury, while it did object to question No. 3. If there was a valid objection to the question, it was the plaintiff’s duty to bring the matter to the attention of the court by timely and specific objection (Hartman v. Hosmer, 65 Kan. 595, 70 Pac. 598). In Shivers v. Carlson, 178 Kan. 170, 283 P. 2d 450, the court said:
“. . . Appellant did not object to special questions No. 17 and 18. Neither did he request a special question as to whether his contributory negligence, if the jury should so find, was a proximate cause of the collision and the resulting damage. Since he did not enter his objection at the proper time, he is not in a good position to complain now.” (1. c. 177.)
Thus, the plaintiff is in no position to complain about the sufficiency or form of special question No. 2 since it failed to make timely objection, and since, as we have indicated, the question was free from ambiguity and did not tend to mislead the jury.
It is evident that the answer to special question No. 2 was entirely inconsistent with the jury’s general verdict for the plaintiff. The former found that neither the defendant nor Holder agreed to make good the bad check of any purchaser at the sale, while the latter found just the opposite. By striking out special question and answer No. 2, the court made apparent its dissatisfaction with the special finding, but in that situation it had no right to strike the question and answer and render judgment in favor of the plaintiff upon the general verdict, presumably, upon the theory that under those circumstances the record indicated the alleged oral contract had been proved. The effect of the court’s action was to deny the defendant his right to a trial by jury (Tritle v. Phillips Petroleum Co., 140 Kan. 671, 37 P. 2d 996; Walker v. Colgate-Palmolive-Peet Co., 157 Kan. 170, 193, 139 P. 2d 157; Underhill v. Motes, 160 Kan. 679, 682, 165 P. 2d 218; Lord v. Hercules Powder Co., 161 Kan. 268, 273, 167 P. 2d 299; King v. Vets Cab, Inc., 179 Kan. 379, 295 P. 2d 605, 56 A. L. R. 2d 1249).
In considering answers to special questions the court is to give them, if possible, such a construction as will bring them in harmony with the general verdict (Witt v. Roper, 149 Kan. 184, 86 P. 2d 549; Dick’s Transfer Co. v. Miller, 154 Kan. 574, 119 P. 2d 454), and if one interpretation leads to inconsistency and another is in harmony with the general verdict, the latter is to be adopted (Marley v. Wichita Transportation Corp., 150 Kan. 818, 96 P. 2d 877; Applegate v. Home Oil Co., 182 Kan. 655, 660, 661, 324 P. 2d 203). Where, however, a verdict is uncertain by reason of an inconsistent finding, it cannot be cured by disregarding the uncertain portion, although the verdict is sufficient without it. In this case the. general verdict showed the plaintiff' had a right to recover, and the jury’s answer to special question No. 2, showed it had not. In such circumstances, the case is left in the condition of being undecided and a new trial should be granted.
The judgment is reversed with directions to the trial court to set aside the judgment in favor of the plaintiff and grant the defendant a new trial.
It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an. appeal by Robert Walker (defendant-appellant) from a judgment of conviction for possessing heroin in violation of K. S. A. 1971 Supp. 65-2502 (Repealed 1972), K. S. A. 1972 Supp. 65-4124 (Repealed 1973), and K. S. A. 1971 Supp. 65-2519a (Repealed 1972).
The primary question on appeal hinges on the validity of the appellant’s arrest.
The record discloses that on June 19, 1972, federal officers as signed to a special task force known as the Office of Drug Abuse Law Enforcement (ODALE) obtained a federal search warrant for the appellant’s residence, located at 2404 North 11th, Kansas City, Kansas, authorizing them to search the residence for heroin. The federal agents executed the warrant that evening. When they entered the house the appellant was emerging from the bedroom area of the house into the living room. The officers identified themselves and gave the appellant a copy of the search warrant; they then proceeded to search the residence in a routine fashion.
The testimony of agent Robert Ingram (which was given outside the hearing of the jury) disclosed that while conducting the search he discovered tinfoil packets in a wastepaper basket located in a bedroom situated in the southeast comer of the residence. He further stated it was his understanding at the time the search was being conducted, and at the time of the trial, that the appellant occupied the house alone. This conclusion was supported by the following additional testimony:
“. • • [TJhere was evidence that day that only he lived in that house. It appeared to us that only one bedroom was occupied, and we found things in that bedroom that would lead one to believe that it was his, and I believe he was asked at that time concerning others, and I was left with the impression until right now that he was the only occupant of the house.”
The tinfoil packets were labeled Exhibit 1A at the trial, and the undisputed testimony of the forensic chemist testifying on behalf of the prosecution was that powder residue contained in the packets was heroin.
After discovering the tinfoil packets the appellant was placed under arrest “for violation of the Federal Controlled Substances Act, illegal possession of controlled substances.” Thereafter the appellant was transported by two agents to the Federal Bureau of Narcotics and Dangerous Drugs office in Kansas City, Missouri, where he was fingerprinted and photographed. The appellant was then taken to the Wyandotte County Courthouse. The agents advised the Wyandotte County jailers they had a federal prisoner they wished to lodge in the jail overnight for violation of federal narcotic laws.
Before admitting the appellant into the jail, the officers conducted a strip search. The appellant was advised to sit down and remove his shoes and socks. During this procedure, according to Agent Lawton, the appellant “took off his left boot, and as he was taking off his left sock he palmed something into his left hand. He went ahead and took off his sock, and he placed it down on the floor too. And I told him after he took off his shoes and socks to turn around and put his hands up on the wall.” When the appellant put his hands on the wall he had his left thumb tucked underneath the palm of his hand, so the agent “reached up and pulled out the thumb, and I could see the pill vial concealed in the palm of his hand, and I then took the pill vial.” The pill vial was introduced into evidence as state’s Exhibit 2A, and the undisputed testimony of the forensic chemist was that it contained heroin.
On September 18, 1972, an information was filed in Wyandotte County alleging that the appellant did unlawfully, wilfully and knowingly have under his control and in his possession a quantity of heroin.
The appellant was duly arraigned at which time he pled not guilty. A jury trial conducted on May 7, 1973, resulted in a hung jury. The trial from which this appeal is taken commenced October 29,1973.
During the course of the trial a hearing was conducted outside the presence of the jury to determine the admissibility of Exhibit 1A (the tinfoil packets containing heroin found in the residence), and Exhibit 1, which was the lock-seal envelope the packets were placed in by the agents.
After hearing the testimony of Agent Ingram, related above, the trial court made the following ruling:
“Here is the way I view this evidence: The material elements of this crime, as far as our Kansas statutes go, is that the defendant knowingly and willfully had in his possession and under his control a quantity of heroin. Now, a legal definition, as I construe it, of possession means that the defendant had actual physical custody and control of the heroin, of a vial with heroin in it, either manually or on his person or in his clothes. Now, the fact that minute quantities of heroin, accepting the State’s exhibit to be true, which I think we must, were found elsewhere in the house, I think is irrelevant to the material elements of this charge here. I must refuse Exhibit 1 and 1A at this time.”
As a result of this ruling the only evidence admitted before the jury related to Exhibit 2A, the pill vial containing heroin. The jury found the appellant guilty as charged, and he has duly perfected this appeal.
The appellant’s first point on appeal is that the trial court erred in admitting into evidence the heroin found on appellant at the Wyandotte County jail for the reason that there was no probable cause for the arrest resulting in appellant’s presence at the jail.
Briefly stated the appellant’s argument proceeds like this: The federal officers lacked probable cause to arrest the appellant for possession of heroin, since he did not have actual possession of the heroin found in the bedroom; the arrest was invalid since it was not based on probable cause; therefore the search of the appellant at the county jail incidental to the invalid airest was improper (citing Chimel v. California, 395 U. S. 752, 23 L. Ed. 2d 685, 89 S. Ct. 2034) and the pill vial containing heroin was illegally seized and should not have been admitted into evidence at the trial (citing Mapp v. Ohio, 367 U. S. 643, 6 L. Ed. 2d 1081, 81 S. Ct. 1684). The appellants conclusion that actual possession of the heroin found at his residence was necessary to furnish probable cause is based upon the trial court’s statements, quoted above, in suppressing the admission of that evidence.
It is to be noted the appellant does not challenge the validity of the search warrant pursuant to which the search of his home was made.
To determine whether probable cause existed for the federal agents to arrest the appellant for a violation of the Federal Controlled Substances Act we must examine the applicable statute.
21 U. S. C. § 844 (a) provides in part:
“It shall be unlawful for any person knowingly or intentionally to possess a controlled substance unless such substance was obtained directly, or pursuant to a valid prescription or order, from a practitioner, while acting in the course of his professional practice, or except as otherwise authorized by this subchapter or subchapter II of this chapter. . . .’’
Heroin is denominated a controlled substance in 21 U. S. C. § 812 (c) (6) (10).
Federal decisions construing 21 U. S. C. § 844 (a) have held that constructive possession of a controlled substance is sufficient to sustain a conviction. (United States v. Bonham, [3rd Cir.] 477 F. 2d 1137 [1973]; United States v. Carter, [6th Cir.] 486 F. 2d 1027 [1973]; and Walker v. United States, [8th Cir.] 489 F. 2d 714 [1974].)
In Bonham, supra, the Third Circuit Court of Appeals said:
“That ‘possession’ which, under the statute, creates a presumption of criminal traffic in certain narcotics can be established by a showing that the accused knowingly had the contraband under his ‘control or dominion’ (a situation sometime denominated ‘constructive possession’) even though it was not found on his person or within his immediate reach. . . .” (p. 1138.)
It was also stated that where a person is the sole occupant of a room and has the right to exclude all others from it, it may logically be inferred that he has knowing dominion and control over objects so situated in his room that he is likely to be aware of their presence.
Carter, supra, and Walker, supra, are cases in which the defendants were found guilty of violating the Controlled Substances Act for constructively possessing contraband in their residence. This court has also held that constructive possession of a narcotic drug is sufficient to constitute possession. (State v. Braun, 209 Kan. 181, 495 P. 2d 1000.)
To make a lawful arrest the arresting officer must have probable cause to believe that a felony has been or is being committed. Probable cause exists if the facts and circumstances known to the officer warrant a prudent man in believing that a felony has been or is being committed by the person to be arrested. (State v Brown, 198 Kan. 473, 426 P. 2d 129; and State v. Little, 201 Kan. 94, 439 P. 2d 387.)
We have no hesitance in concluding on the record here presented that the arrest of the appellant was valid. The federal agents had sufficient evidence to warrant a prudent man in believing that a felony had been committed by the appellant. It is not necessary that the evidence giving rise to the probable cause be sufficient to prove guilt beyond a reasonable doubt, nor must it be sufficient to prove that guilt is more probable than not; it is only necessary that the information lead a reasonable officer to believe that guilt is more than a possibility. (State v. Lamb, 209 Kan. 453, 497 P. 2d 275.)
The appellant next claims the trial court erred in failing to grant a mistrial because the prosecutor peremptorily struck all black jurors from the panel.
The defendant in a criminal action is not necessarily entitled to be tried by a jury with even a single member of his race thereon. (State v. Reed, 214 Kan. 562, 520 P. 2d 1314; State v. Clift, 202 Kan. 512, 449 P. 2d 1006, cert. den. 396 U. S. 910, 24 L. Ed. 2d 186, 90 S. Ct. 225; and Lee v. State, 204 Kan. 361, 461 P. 2d 743.) Furthermore, systematic or purposeful exclusion of members of a race from jury service may not merely be assumed or asserted — it must be established by proof. (State v. Clift, supra.)
In Swain v. Alabama, 380 U. S. 202, 13 L. Ed. 2d 759, 85 S. Ct. 824, the United States Supreme Court considered a claim similar to the one presently urged by the appellant, and held that the essential nature of the peremptory challenge is that it is one exercised with out a reason stated, without inquiry and without being subject to the court’s control. The court said:
“With these considerations in mind, we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws. In the quest for an impartial and qualified jury, Negro and white, Protestant and Catholic, are alike subject to being challenged without cause. To subject the prosecutor’s challenge in any particular case to the demands and traditional standards of the Equal Protection Clause would entail a radical change in the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each and every challenge being open to examination, either at the time of the challenge or at a hearing afterwards. The prosecutor’s judgment underlying each challenge would be subject to scrutiny for reasonableness and sincerity. And a great many uses of the challenge would be banned.
“. . . The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury to try the case before the court. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes. Any other result, we think, would establish a rule wholly at odds with the peremptory challenge system as we know it. Hence the motion to strike the trial jury was properly denied in this case.” (pp. 221, 222.)
There being no reversible error, the judgment of the lower court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action for specific performance of a contract for the sale of real estate. The facts are not in dispute and are essentially as follows: On May 7, 1969, the defendants-appellees, Damon W. Higgins and Cleo D. Higgins, sold a tract of land to Robert E. Brown and Mark S. Gilman. At the time of this transaction and as a part of the consideration therefor, the Higgins agreed that Brown and Gilman should have a right of first refusal to purchase adjoining land from the Higgins should they desire to sell it. In addition, as a result of this same sale, a real estate agent, Lienna McCulley, obtained an agreement with the Higgins which gave Miss McCulley the right to handle any subsequent sale of the adjoining tract if the contracting or sale occurred prior to June 1, 1971. In April of 1971 the Higgins desired to sell the adjoining tract of land which was subject to the contractual rights just mentioned. The plaintiffs-appellants, Philip A. Green and Barbara A. Green, desired to purchase the adjoining tract of land from the Higgins at a proposed purchase price of $30,000. A contract for the purchase of the property for the proposed price was executed by the Greens and the Higgins on April 21, 1971. Prior to the time the contract was prepared and executed the Higgins advised the Greens that Lienna McCulley would be entitled to a commission on the sale if the contracting or sale occurred prior to June 1, 1971. The contract was dated June 2, 1971, in order to defeat Lienna McCulley’s right to handle the sale of the property and to cheat her out of her real estate commission.
Plaintiff, Philip A. Green, testified in his deposition that after this contract was signed Higgins advised him that the property was subject to the right of first refusal held by Brown and Gilman pursuant to the contract of May 7, 1969. Green and Higgins apparently decided that something had to be done to avoid Higgin’s obligation to give the first right of refusal to Brown and Gilman. Green testified in substance that he suggested to Higgins that a fictitious contract be prepared and delivered to Brown and Gilman with a letter giving them the opportunity to enter into a contract for the same price or otherwise the right of first refusal would be waived. The fictitious contract was dictated by Mr. Green and typed by Mrs. Green. In this fictitious contract the purchase price was stated to be $40,000 and the designated purchaser of the prop erty was Medallion Investment Properties, Inc., a corporation of which Mr. Green was the president. It is undisputed that this fictitious contract with an inflated purchase price in the amount of $40,000 was prepared and delivered to Brown and Gilman to discourage them from exercising their right of first refusal, since the indicated purchase price of $40,000 was an excessive price for the property. This gambit was apparently successful since Brown and Gilman did not exercise their right of first refusal to purchase the property under the terms stated in the fictitious contract.
Thereafter the Higgins decided that they did not want to carry out their contract with the Greens and so advised the Greens. At that point the only money which had changed hands was the $100 given to Higgins by Green at the time the contract was executed. The Higgins offered to return this in August or September of 1971. In January of 1972 Green tendered the balance of the purchase price, $29,900 and requested a warranty deed from Higgins which Higgins refused to provide. On March 28, 1972, the Greens filed this action for specific performance of the contract. The Higgins counterclaimed for damages based upon an alleged clouding of their title and further prayed that their title to the land be quieted against the Greens. Thereafter depositions were taken of Philip A. Green and Damon W. Higgins which brought forth the facts which have been recited above. On the basis of the pleadings and depositions the plaintiffs Green filed a motion for summary judgment. The defendants Higgins then filed a motion to dismiss pursuant to K. S. A. 1973 Supp. 60-212 (b) (6). The Higgins’ motion to dismiss was based upon a number of grounds including a defense that since the plaintiffs Green had attempted to perpetrate a fraud upon a third party, the plaintiffs had not come into court with clean hands and therefore should be denied equitable relief by way of specific performance. A hearing was held on the motions filed by the parties. At the conclusion thereof the district court dismissed the petition of the Greens for specific performance and also dismissed the counterclaim of the Higgins seeking damages and a decree quieting title to their land.
In denying relief to both parties the district court found on the -undisputed facts as alleged in the pleadings and as established by the depositions, that the conduct of both the plaintiffs Green and the defendants Higgins had been willful, fraudulent, illegal, and unconscionable, that neither party had come into court with clean hands, and thus neither should be granted any relief by the court. The plaintiffs Green have appealed to this court from the judgment of the district court dismissing their petition and denying them specific performance.
On this appeal the Greens contend that the motion to dismiss filed by the defendants was prematurely sustained because there were genuine issues of -fact remaining in the case. We do not agree. K. S. A. 1973 Supp. 60-212 (b) provides that if on a motion asserting a defense of failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to the court, the motion shall be treated as one for summary judgment and shall be disposed of as provided in section 60-256, provided all parties are given a reasonable opportunity to present evidentiary material pertaining thereto. In this case the plaintiffs had previously filed a motion for summary judgment based upon the undisputed facts contained in the pleadings and depositions of the parties. Here there is no complaint that the trial court did not afford to the parties every reasonable opportunity to make discovery and to obtain evidence in support of and in opposition to their respective motions. Under the provisions of K. S. A. 60-256 the trial court is authorized to render summary judgment when there is no material issue of fact. Such judgment may in fact be entered on the court’s own motion. (Darby v. Keeran, 211 Kan. 133, 505 P. 2d 710.)
In this case the clean hands doctrine had been specifically raised as an affirmative defense in the defendants’ answer. That defense was the basis of the defendants’ motion to dismiss. The clean hands doctrine is based upon the maxim of equity that he who come.s into equity must come with clean hands. The clean hands doctrine in substance provides that no person can obtain affirmative relief in equity with respect to a transaction in which he has, himself, been guilty of inequitable conduct. It is difficult to formulate a general statement as to what will amount to unclean hands other than to state it is conduct which the court regards as inequitable. Like other doctrines of equity, the clean hands maxim is not a binding rule, but is to be applied in the sound discretion of the court. The clean hands doctrine has been recognized in many Kansas cases. (Brooks v. Weik, 114 Kan. 402, 219 Pac. 528; Scott v. Southwest Grease & Oil Co., 167 Kan. 171, 205 P. 2d 914; Browning v. Lefevre, 191 Kan. 397, 381 P. 2d 524; Seal v. Seal, 212 Kan. 55, 510 P. 2d 167; and Anderson v. Anderson, 214 Kan. 387, 520 P. 2d 1239.) The application of the clean hands doctrine is subject to certain limitations. Conduct which will render a party’s hands unclean so as to deny him access to a court of equity must be willful conduct which is fraudulent, illegal or unconscionable. (Seal v. Seal, supra.) Furthermore the objectionable misconduct must bear an immediate relation to the subject-matter of the suit and in some measure affect the equitable relations subsisting between the parties to the litigation and arising out of the transaction. (Brooks v. Weik, supra.) Stated in another way the misconduct which may justify a denial of equitable relief must be related misconduct rather than collateral misconduct arising outside the specific transaction which is the subject-matter of the litigation before the court.
It should also be emphasized that in applying the clean hands maxim, coruts are concerned primarily with their own integrity. The doctrine of unclean hands is derived from the unwillingness of a court to give its peculiar relief to a suitor who in the very controversy has so conducted himself as to shock the moral sensibilities of the judge. It has nothing to do with the rights or liabilities of the parties. In applying the unclean hands doctrine, courts act for their own protection, and not as a matter of “defense” to the defendant. (Gaudiosi v. Mellon, [C. A. 3rd] 269 F. 2d 873.)
The plaintiffs Green on this appeal argue that a defendant cannot invoke the protection of the clean hands maxim unless he has suffered from the misconduct of the plaintiff. They argue that here the defendants Higgins participated in the claimed misconduct and that any injury suffered would be to third parties and not to the defendants themselves. There is authority to support the plaintiffs’ position. (Batesville Truck Line, Inc., v. Martin, 219 Ark. 603, 243 S. W. 2d 729 [1951]; Langley v. Devlin, 95 Wash. 171, 163 Pac. 395 [1917]; and other cases to the same effect cited in the annotation in 4 A. L. R. 44.) In our judgment such an interpretation of the clean hands doctrine does not accord with its principal purpose. A court may refuse its relief to the plaintiff though the defendant himself participated in the misconduct, not because it is a privilege of such a defendant, but because the court refuses to lend its aid to either party to such a transaction. The best-reasoned cases hold that the maxim applies, even though the misconduct of the plaintiff has not injured anyone and even though the defendant himself was a participant in the misconduct. See for example Gaudiosi v. Mellon, supra; Brown v. Brown et al., 66 Conn. 493, 34 A. 490; and McClintock on Equity, 2d Ed., § 26.
With these basic principles in mind we turn now h> the undisputed facts in this case to determine whether or not the district court abused its discretion in denying relief to both the plaintiffs and the defendants. Here all parties have conceded that'the following facts are true: That the contract entered into between the parties on April 21, 1971, was dated June 2, 1971, in order to deprive Lienna McCulley of her right to a sales commission which she had previously obtained through contract; that a fictitious contract was prepared by which it appeared the Higgins agreed to sell the real estate to Medallion Investment Properties, Inc. for $40,000; that the fraudulent contract was prepared at the suggestion of the plaintiff, Philip A. Green, and was submitted by Higgins to Brown and Gilman in order to deprive them of their right of first refusal to purchase the property at a proposed price. It simply cannot be denied that the plaintiffs Green actively and willfully participated in fraudulent and unconscionable activities to obtain title to the land and to defeat various legal rights held by third parties. The misconduct involved here was directly related to the subject-matter of the litigation and must be classified as related misconduct, not collateral misconduct. Under all the facts and circumstances we cannot say that the trial court abused its discretion in denying relief to both the plaintiffs and defendants by reason of the clean hands doctrine.
The judgment of the trial court is affirmed.
Fromme, J., not participating. | [
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OPINION OF REVERSAL ON REHEARING
The opinion of the court was delivered by
Jackson, J.:
A rehearing was granted in this case, and it has been reargued. The majority of the court is now of the opinion that the manifest error of the original obiter dictum found first in the case of McCarthy, Adm’r, v. Railroad Co., 18 Kan. 46, need not be further adhered to by this court. The history of the error in the McCarthy case is quite adequately set forth in the dissenting opinion beginning in 184 Kan., at page 416 of the first report of this case. This dissenting opinion is hereby incorporated by reference.
It may be re-emphasized, that no property rights become fixed in a rule of civil procedure, and that the doctrine of stare decisis should not be followed if the former decision is manifestly in error (14 Am. Jur. 288, § 68; Cain v. Miller, 109 Neb. 441, 448, 191 N. W. 704, 30 A. L. R. 125; and L. & N. R. Co. v. Hutton, 220 Ky. 277, 295 S. W. 175, 53 A. L. R. 1328).
It may be noted that the Supreme Court of the United States in Girouard v. United States, 328 U. S. 61, 66 S. Ct. 826, 90 L. Ed. 1084, pointed out the fallacy of adhering to an erroneous construction of a statute even though the legislature had had opportunity to correct the court’s error.
From what has been said above it is clear that the statements found in McCarthy, Adm'r, v. Railroad Co., supra, and all cases recognizing the rule of the McCarthy case as the law of this state are disapproved, see cases on page 415 of the first opinion of the court in this case. It would seem that only in City of Eureka v. Merrifield, 53 Kan. 794, 37 Pac. 113; Martin v. Railway Co.., 58 Kan. 475, 49 Pac. 605; and Wright v. Smith, 136 Kan. 205, 14 P. 2d 640, was the erroneous rule of the McCarthy case thought to have any application to the case then before the court. Be that as it may, the majority of this court is convinced that the survival statute, G. S. 1949, 60-3201, means just what it says; that an action for personal injury survives the death of the injured party, and that the cause of the death has no bearing upon the survival of the action. No one argues that the history and meaning of the statute is at all in doubt, and we believe it is time to cease adhering to gross error.
The learned trial court relying upon the McCarthy case sustained a motion to strike the first cause of action in plaintiff’s petition (see first opinion); this order must be reversed. Other matters require no comment. The motion to strike should be overruled. It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action by Maria S. Vakas, plaintiff (appellee), as administratrix of her deceased husband’s estate, to recover damages for the wrongful death of her husband occasioned when his stalled automobile, in which he was an occupant, was struck by a vehicle being driven by Ronald Collins, defendant (appellant). The petition alleged concurrent negligence on the part of defendants, Ronald Collins and Lee Pyle. Pyle did not appeal and it is unnecessary to relate the portion of the petition applying to him. The sole question for review is whether the petition stated a cause of action against Collins.
The pertinent allegations of the amended petition stated that plaintiff’s deceased husband was fatally injured and died intestate February 15, 1958, and that, as the duly appointed administratrix of his estate, she brought this action for the benefit of herself and their two children as the sole heirs.
Plaintiff further alleged that February 15, 1958, about 8:42 p. m., on a clear, dry night, on a straight, blacktop county highway, which ran north and south and was twenty-five feet and ten inches in width with shoulders twelve to eighteen inches wide, surfaced with a mixture of gravel and chat, at a location 1.5 miles south and three miles west of Coffeyville, in open country and outside any city limits, decedent occupied the driver’s seat of his blue 1950 Buick four-door sedan, which was disabled and inoperative and standing in a diagonal position with the front of the vehicle facing southwest and the rear wheels thereof near or touching the east edge of the highway — the car’s headlights and its red dome light were burning; that twenty feet south of decedent’s automobile two twenty-feet-wide driveways ran, one from the east and one from the west, from an open field into the highway and the position of decedent’s vehicle resulted from having been backed from the west driveway onto the highway, where it stalled and became inoperative; that the Buick was visible from the south for a distance of 1,231 feet to an automobile traveling north on the highway, and that 747 feet south of the point of impact the highway sloped upward to a crest of three feet, then sloped downward until 1,231 feet south of decedent’s car it was at the same level as his vehicle. Plaintiff alleged further that opposite the Buick — the exact point unknown to her but well-known to defendants — defendant Lee Pyle had parked a 1958 Mercury, facing south, on the pavement of the county road, which he had left unattended with its four-headlights burning, two of them high beam; that at the time and under the circumstances above mentioned, defendant Ronald Collins, while driving his 1949 Ford two-door sedan north on the said county road, drove into decedent’s automobile, thereby killing decedent.
Plaintiff further alleged that defendant Collins was guilty of negligence, in that he drove his automobile in a grossly wanton and negligent manner at sixty miles an hour, which was a speed greater than was reasonable and prudent under the existent conditions and in violation of G. S. 1957 Supp., 8-532, and without slowing or applying his brakes drove into decedent’s automobile; and in that he failed to exercise due care under the circumstances in keeping a lookout ahead for vehicles in the roadway and in failing to slow and stop when he did not know into what object or objects he might be driving and in continuing to drive when he could not see clearly the road ahead, when he should have known a vehicle was stopped in the roadway ahead and persons might be in imminent peril if he continued to drive at said speed, and such acts were gross and wanton and constituted an utter disregard for the safety of others on the highway. It was further alleged that defendant Collins, at a time prior to the collision, saw, or by the exercise of reasonable care should have seen, decedent’s disabled automobile at the scene of the collision in a position of imminent peril of being struck by defendant’s automobile in time, by the exercise of ordinary care and with the means at hand and with reasonable safety to defendant’s automobile, to have slackened his speed and to have either turned off into the side drive on the east of said road or driven around decedent’s automobile or stopped, and that by doing any one of the above acts defendant Collins could have avoided the collision with decedent’s automobile and his resulting death, but that defendant Collins negligently failed to take the last clear chance to avoid said collision, which resulted in decedent’s death.
Defendant Collins separately demurred to plaintiff’s amended petition on the grounds that it did not state facts sufficient to constitute a cause of action or facts disclosing plaintiff was entitled to recover against defendant, and that it did not allege facts in ordinary and concise language and upon a distinct and definite legal theory which entitled plaintiff to recover against defendant. From an order overruling this demurrer, Collins appeals and, under G. S. 1957 Supp., 60-3314a, seeks a review of the trial court’s order Overruling in part his motions to make definite and certain and to strike certain allegations of the original petition. We have examined the motions and find them to be without merit.
It has been the rule of this court for, such a long time it is now :so elementary it should need no further reiteration that a motion to make definite and certain lies only when the pleading attacked is so indefinite and uncertain that the nature of the charge or defense is not apparent (G. S. 1949, 60-741). This does not mean indefinite and uncertain according to-the refinements and technicalities of the common-law system of pleading, and a pleading which fairly apprises the adversary of the nature of the claim or defense suffices against the motion. Where the only purpose of a motion to make a petition definite and certain is to require a plaintiff to plead his evidence or to plead defendant’s contemplated defense, it should be overruled. The function of a motion to make a petition definite and certain is not to compel a plaintiff to allege facts which a defendant believes constitute a defense to the action. (Clark v. Myers, 173 Kan. 96, 244 P. 2d 217.) If he has a defense, it is his duty to set up such defense in his answer. Moreover, we have consistently held that motions to make definite and certain and to strike rest in the sound discretion of the trial court (G. S. 1949, 60-741), and an appeal does not ordinarily lie from rulings thereon. Unless it appears the ruling prejudiced or will prejudice the substantial rights of a party, it will not be reversed. All of these matters were recently dealt with in Marshall v. Duncan, 182 Kan. 540, 543, 544, 322 P. 2d 762, and this court adheres to the decision and the authorities therein cited. (See also Parrack v. Wittman, 180 Kan. 193, 302 P. 2d 1005.)
We have examined plaintiff’s original petition and defendant’s motions lodged thereto and find the petition fully apprised defendant of plaintiff’s claim and cause of action and met the requirements of G. S. 1949, 60-704 pertaining to the contents of a petition. The trial court did not err in overruling defendant’s motions.
The defendant’s motions being wholly without merit, plaintiff’s amended petition is entitled to a liberal construction and will be so considered in determining whether defendant’s demurrer thereto was properly .overruled. Defendant’s argument, in substance, is that the petition as amended was not drawn on a distinct and definite legal theory but combined allegations of general or common-law negligence against defendant with allegations of concurrent negligence, that it then endeavored to invoke and Allege against defendant the doctrine of last clear chance and was therefore demurrable.
We have repeatedly held, and most recently in Gibbs v. Mikesell, 183 Kan. 123, 325 P. 2d 359, where an extensive review of our cases may be found, that a plaintiff may plead in his petition a cause of action on the ground of ordinary negligence and may also plead in the alternative a cause of action which states facts involving the doctrine of last clear chance, and he may recover under whichever aspect proof of the case may show. When the plaintiff in an action has two or more distinct reasons for obtaining the relief sought, or when there is more or less uncertainty as to the grounds of recovery or as to the exigencies of proof, the petition may set forth a single claim in more than one cause of action. The pleader may state his case in as many ways as he sees fit in separate causes of action in the alternative to meet any possible phase of the evidence.
In Crabb v. Swindler, Administratrix, 184 Kan. 501, 337 P. 2d 986, and cases therein cited, we stated that while good practice requires the plaintiff’s initial pleading to proceed on a single and definite theory, under modern code systems the pleading may be held sufficient if it states a cause of action on any theory.
In Kloepfer v. Chicago, Rock Island & Pacific Rld. Co., 174 Kan. 96, 101, 102, 254 P. 2d 243, we held, in referring to rules of pleading with respect to ordinary negligence and last clear chance, that it is stated generally the plaintiff may plead both ordinary negligence and a state of facts invoking the last clear chance rule, and he may recover under whichever aspect the proof of the case shows. Moreover, it is stated that plaintiff, although not fully pleading facts warranting application of the last clear chance doctrine, may nevertheless rely thereon, especially if his incomplete allegations are sufficient to inform the defendant of his intention so to do.
Defendant contends that the petition disclosed the deceased was guilty of contributory negligence as a matter of law, thereby barring the plaintiff from recovering therein. We have held that ordinarily, and in the absence of convincing evidence to the contrary, it will be presumed a deceased person exercised reasonable care for his own safety. It cannot be said that the deceased was guilty of contributory negligence as a matter of law. (Drake v. Moore, 184 Kan. 309, 314, 336 P. 2d 807, and cases cited therein.)
No further comment is necessary other than that the petition stated a cause of action in favor of the plaintiff and against the defendant, and it did not show the decedent guilty of contributory negligence as a matter of law. This appears to be purely a fact case, where issues should be joined and the case ordered to trial on its merits. The judgment of the trial court is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
Plaintiffs sought to recover a money judgment in an action arising out of breach of a written contract. This appeal by plaintiffs relates only to the verdict of the jury and the judgment in favor of defendants entered thereon by the trial court based on the first cause of action.
An amended petition, answer and reply established the issues and since there is no question as to the pleadings, we need not reiterate their contents herein.
On January 21, 1956, plaintiffs agreed, by written contract, to sell to defendants the following personal property: . Two Harlee freezers, a root beer dispenser, a walk-in cooler, a deep freeze, a five spindle multi-mixer, a roof sign and a cone dispenser, all used in the operation of a Tastee Freez business. The contract contained numerous provisions but we shall include herein quotation of only the salient parts relating to the first cause of action and this appeal, which concerns payment by the Krauses for the above equipment:
“(a) Purchaser agrees and understands that the purchase price of the above described equipment is $6,933.77 to be paid at the rate of $3.00 per every ten-gallon can of Tastee Freez Mix used by purchaser in conducting and operating the Tastee Freez business at 300 South Fossil, Russell, Kansas.
“It is agreed and understood that the creamery from which the Purchaser buys mix used in the operation of the Tastee Freez business shall have the right to add $3.00 to the purchase price of every ten-gallon can of mix sold to Purchaser and said Seller herein agrees that the creamery, from which the Purchaser purchases mix, shall act as agent in the collecting of the $3.00 per ten-gallon can, which shall be credited on the unpaid balance of the purchase price and interest thereon.
“(b) . . . 4. In the event of any default by the Purchaser in the ' performance of any of the terms or conditions hereof, the Seller may at its option and without notice declare the unpaid portion of the purchase price, together with accrued interest thereof, if any, immediately due and payable, and thereupon the Seller may either proceed to collect from the Purchaser the balance due or retake possession of the property, including the supplies and products, wherever it may be found, with or without legal process, and hold the same free of all claims of the Purchaser and retain as liquidated damages all payment theretofore made.”
A written sublease agreement and a subsequent written agreement providing for the moving of the above equipment to avoid expensive rent were a part of the contract and appear in the record but those agreements do not require our attention in this appeal.
The grounds of the motion for new trial and the errors complained of in the notice of appeal and the specifications of error are numerous but in reality we have only one prime question which is whether the above-quoted portions of the contract are ambiguous.
Plaintiffs moved that the trial court determine in advance of trial whether the contract was ambiguous by reason of the following allegation of defendants’ answer:
“8. That said Conditional Sale Contract was impossible of being performed on Defendants part; that such a possibility was within the contemplation of the parties Plaintiff and Defendants; that both parties contemplated payment only if Tastee-Freez mix'were purchased; that both parties contemplated pay ment only if the business remained a going concern and then in that event such payments would be made only at the rate of three dollars per can of Tastee-Freez mix purchased; that payment of three dollars per can of Tastee-Freez mix purchased was the only method of payment provided for and such payment is fully set forth in section (a) of the Conditional Sale Contract.”
The trial court ruled that parol evidence to substantiate allegations of the answer as to facts in connection with contract negotiations would be admissible, and further stated:
“The court also finds that the contract is ambiguous as to the source of money from which payment under the conditional sales contract is made in the event of default in the contract. It being pointed out by the court that paragraph (a), which is the third paragraph on Page 1 of the conditional sales contract, sets out the source of money from which payments are to be made, namely, ‘at the rate of $3.00 per every ten-gallon can of Tastee-Freez mix’ etc. And paragraph number 4 on page 2 of the conditional sales contract sets out that in the event of default by the purchaser ‘the seller may at its option . . . declare the unpaid portion of the purchase price . . . immediately due and payable. . . .’ It being pointed out that it is ambiguous as to whether said paragraph 4 abrogates the provision of said paragraph (a) in regard to the source of moneys from which payment is to be made.”
. This opened the way for an abundance of conflicting evidence in regard to preliminary negotiations and facts and circumstances present at the time of the execution of the contract by defendants on February 8, 1956, and by plaintiffs on February 13, 1956. The same was also true regarding the intention of the parties under paragraph 4 of provision (b) of the contract above quoted.
It was undisputed that the contract form was copied by plaintiffs from one previously used by them and a former purchaser of the same business. The defendants opened the business about March. 17, 1956, and operated it until August 16, 1956, during which time the $3.00 payments were made pursuant to provision (a) of the contract until an amount of $176.36 was paid, leaving a balance of $6,757.41 due on the principal. Defendants had “kept the business open” for about five months in 1956 when they were required by the signed contract to keep the premises open for business a minimum of eight months. They did not reopen in the spring of 1957 notwithstanding the fact that the Kittels contacted them in regard thereto'. Defendants had not paid any taxes and had failed to renew the liability insurance as provided in the contract.
Defendants had written plaintiffs in July, 1956, as follows:
“In the event I don’t find a buyer and I am forced to close, I wonder what you plan to do?”
After defendants failed to reopen in March, 1957, plaintiffs commenced this action on September 3, 1957.
Plaintiffs counsel made requested instructions and the trial court gave most of them in substance. However, die court omitted and refused plaintiffs’ requested instruction No. 17 wherein an attempt was made to give a legal explanation of “ambiguity of a contract” although a part of plaintiffs’ requested instruction No. 19 was given in the trial court’s instruction No. 11, as follows:
“In determining intention of the parties if ambiguity is found to exist in a a contract, the test is not what the party" preparing the instrument intended its doubtful or ambiguous words to mean, but what a reasonable person,-in the position of the other party to the agreement, would have understood them to mean under the existing conditions and circumstances.”
Plaintiffs’ counsel again requested the trial court to instruct with reference to ambiguity in the contract and cited Royer v. Silo Co., 99 Kan. 309, 161 Pac. 654, on the point:
. “Where an ambiguous expression is used in a written contract, it is proper to show by evidence what the parties understood and intended by the expression, and to submit to the jury, with proper instructions, the interpretation of thd expression as used in the contract.” (Syl. ff 2.)
" In the Royer case ambiguity existed as to two provisions of the contract and, as indicated above, this court held it was not error to submit to the jury, with proper instructions, the interpretation of the contract under the evidence.
. The trial court again overruled plaintiffs’ motion which could have been directed only to the above-quoted portion of the trial court’s instruction No. 11 since that is the only reference to ambiguity. It should be noted that defendants also objected to No. 11 along with numbers 7, 8 and 9 because they were not correct statements of the law as to matters contained therein and were prejudicial to defendants. Defendants’ objection was overruled.
The jury found in favor of defendants on the first cause of action. The trial court entered judgment in accordance therewith and the journal entry of judgment included the following:
“Thereupon, plaintiffs make oral application and request that the court determine, in advance of trial, whether or not the contract entered into by and between the parties, designated as Exhibit ‘A’ in the petition, is ambiguous for the purpose of determining whether or not parole evidence will be admissible at the trial with reference to said contract. Thereupon, after argument of counsel and after being fully advised in the premises, the Court finds that said contract insofar as it refers to payment in Section ‘(a), unnumbered paragraph 2 of said section, is ambiguous and that parole evidence will be admissible to explain the intent of the parties with reference to said section, all as is more fully shown and set forth in the transcript of said cause.”
We have examined plaintiffs’ first contention that the trial court erred in overruling plaintiffs’ motion for judgment on the pleadings because defendants’ answer was unverified but it is not meritorious and we shall pass on to a more serious contention of error which is that the trial court erred in its order and ruling, in advance of trial, that the contract was ambiguous for the reason stated.
The written contract is the crux of the lawsuit and whether it was ambiguous was definitely a question that had to be determined and it was proper for the trial court to make such determination in advance of trial. (G. S. 1949, 60-2902.)
When such a question of law has been determined by a trial court and appeal is taken therefrom, an ancient rule of this court is then applicable. It is that the appellate court has the same written contract or instrument before it as did the trial court and the appellate court can as efficiently examine the contract and determine its meaning and effect as could the trial court. A thorough discussion of this rule and citation of a few of our many decisions thereon is to be found in Klema v. Soukup, 175 Kan. 775, 267 P. 2d 501. Our most recent decision, filed November 7, 1959, is Springer v. Litsey, 185 Kan. 531, 345 P. 2d 669.
Defendants rely on Brown v. Shields, 78 Kan. 305, 96 Pac. 351, which involved a clearly ambiguous thirty day notice clause in a lease, and Francis v. Shawnee Mission Rural High School, 161 Kan. 634, 170 P. 2d 807, interpreting the meaning of a clause in a teacher’s contract in regard to “the school year” where school was conducted for nine months and the salary was $2,345.00 payable in twelve monthly installments. We cannot agree with defendants that the final determinations and rules applicable in those cases are compelling in this appeal.
G. S. 1949, 58-315a defines a conditional sales contract as a contract for the sale of personal property by the terms of which the title of such personal property is retained in the vendor until the purchase price is paid in full.
Generally in the construction of a contract by a court, if the contract is unambiguous and clear, the major problem is the intention of the parties at the time they entered into the contract which must be determined from the four corners of the instrument, as has been variously stated so frequently in our opinions, and was most recently repeated in Zelinkoff v. Johnson, 185 Kan. 489, 345 P. 2d 665, filed on November 7,1959:
“Where a court is called upon to .interpret a written instrument, the intent and purpose thereof are to be determined by a consideration of all the pertinent provisions and not by a critical analysis of a single isolated provision.
“Where a court is called upon to construe a written instrument, a reasonable rather than an unreasonable interpretation is favored by the law, and results which vitiate the purpose or reduce its terms to absurdity should be avoided.” (Syl. ¶¶1, 2.)
Paragraph 4 of provision (b) of the contract is not an uncommon provision whereby if a buyer defaults, the seller of personal property under a conditional sales contract, has an option of retaking possession of the property or filing an action for the balance due on the contract price, together with any interest, at the time of the default. Before a seller can elect which remedy he will pursue under the option, it is imperative that the buyer default in the performance of at least one of the provisions of the contract which, by its terms, he is duty bound to perform. A similar situation of an election of remedies under an option in a conditional sales contract obtained in Plow Co. v. Rodgers, 53 Kan. 743, 37 Pac. 111, cited with approval in Emporia Wholesale Coffee Co. v. Rehrig, 173 Kan. 841, 843, 252 P. 2d 590.
The language of this conditional sales contract upon which plaintiffs predicated their action unambiguously and clearly provided in (a) how the purchase price would be paid if defendants complied with the duties placed upon them by the terms and provisions of the contract, and that in the event of default of defendants by reason of their failure or refusal to comply with those duties paragraph 4 of provision (b) became operative, as hereinbefore stated. No conflict existed between the two parts of the contract nor can more than one meaning be placed on the contract by reason of their inclusion therein.
The trial court was in error in his legal determination, in advance of trial, that the contract w7as ambiguous and such erroneous determination requires a reversal of this cause. A new trial is hereby granted, as to only the first cause of action, in conformity with the terms of the written conditional sales contract executed and signed by the parties. A new trial having been granted, determination of the remaining seventeen specifications of error and the interesting legal questions raised therein, is unnecessary. The function of an appellate court is not to predetermine and advise a trial court how it should try and dispose of possible legal questions involved. Only the new trial itself can develop those questions.
Reversed and remanded for new trial on the first cause of action only. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action in which subcontractors sought to foreclose mechanics’ liens for labor and materials supplied in the construction of a dwelling house.
Appellees, Francis and Marguerite Lustig, were the owners of the property on which the improvements were erected. Defendant Bernard Goldstone was appellees’ contractor. Appellant, Michael Zuk, a subcontractor, doing business as Rockhurst Plumbing and Heating Company, filed his cross petition alleging that he furnished labor and material, in a specified amount, for the construction of the dwelling, and that he filed his mechanic’s lien statement with the clerk of the district court within the statutory time. His cross petition further alleged that he served notice in writing of the filing of his mechanic’s lien, together with a copy of lien statement, on one A. J. Granoff, who was at the time the agent and attorney for the appellees, and that said Granoff had authority to act on behalf of the Lustigs with respect to the property involved and to accept and receive for and on behalf of them all documents, instruments and matters pertaining to said property, including a copy of a notice of the mechanic’s lien filed by appellant.
From an order of the trial court sustaining appellees’ demurrer to appellant’s cross petition on the ground he failed to allege service of notice in writing of the filing of his lien on the Lustigs, the owners of the property in question, appellant appeals.
Appellant contends the service of notice was sufficient, in that Granoff was appellees’ agent and attorney and service upon him was, therefore, notice to appellees; that the appellees are estopped from raising the question of valid service of notice due to the fact Granoff asked appellant to serve the notice upon him instead of on appellees. Appellees contend the creation of a mechanic’s lien is statutory and the statute must be strictly followed; that gaps in following statutory procedure cannot be bridged by estoppel.
The sole quesion presented for our determination is whether the service by appellant of the written notice of the filing of the mechanic’s lien on Granoff, as agent and attorney for appellees, met the requirements of our statute.
Our mechanic’s lien statute, G. S. 1949, 60-1403, provides:
“Any person who shall furnish . . . material, or perform . . . labor . . ., under a subcontract with the contractor, . . . may obtain a lien upon such land . . ., for the amount due him for such material and labor, . . ., by filing with the clerk of the district court of the county in which the land is situated, ... a statement verified by affidavits setting forth the amount due from the contractor to the claimant, and the items thereof as nearly as practical, the name of the owner, the name of the contractor, the name of the claimant and a description of the property upon which a lien is claimed; and by serving a notice in writing of the filing of such a lien upon the owner of the land: Provided, That if with due diligence the owner cannot be found in the county where the land is situated, the claimant, after filing an affidavit setting forth such facts, may serve a copy of such statement upon the occupant of the land, or if the land be unoccupied may post such copy in a conspicuous place upon the land, or any building thereon.” [Emphasis supplied.]
It is conceded that appellant was a subcontractor and that he served no notice of the filing of his lien upon the appellee landowners personally. The question here presented has been long laid at rest in this jurisdiction. Our last pronouncement on this question is to be found in Clark Lumber Co. v. Passig, 184 Kan. 667, 339 P. 2d 280, wherein we stated, in quoting with approval Powers v. Lumber Co., 75 Kan. 687, 90 Pac. 254:
“There is no privity of contract between the subcontractor and the owner, and the former can only obtain a lien by compliance with the statutory provisions. It is not enough that he has furnished the material and filed his lien. The service of notice upon the owner is one of the necessary steps. Without such notice he obtains nothing. The right to claim and enforce his hen being statutory, the action can only be maintained upon a petition alleging a compliance with the statute, (p. 688.)”
Other decisions which have adhered to the mentioned rule are Baker v. Griffin, 120 Kan. 448, 243 Pac. 1057; Cobb v. Burford, 121 Kan. 199, 246 Pac. 1009; Lumber Co. v. Dettinger, 110 Kan. 114, 202 Pac. 622.
Appellant’s right to enforce his lien was statutory and his action could have only been maintained upon a petition alleging compliance with the statute; one of the prerequisites of the statute to create and perfect such lien being the giving óf a written notice to the owners of the property that such lien had been filed. (Clark Lumber Co. v. Passig, supra.)
In Lumber Co. v. Dettinger, supra, the lien claimant relied upon service of notice of filing his lien statement upon the owner’s husband, who was also her guardian, she being confined in the state hospital at Topeka. We held that notice served upon the husband-guardian was not notice to the owner, and stated:
“The statute requires notice in writing of the filing of the lien statement to be served on the owner of the land. If the owner cannot with due diligence be found in the county, a substitute for personal service may be resorted to.' After the filing by the claimant of an affidavit stating the facts, notice may be served on the occupant of the land, or if there be no occupant, by posting in a conspicuous place on the land. . . . J. A. Surplus was not owner of the land, either in his individual or in his representative capacity. Notice to him as owner was not notice which affected him as guardian, or which affected his ward or her estate, and the indispensable statutory requirement of notice to the owner was wanting.”
Where the statute requires service on the owner of the notice of the filing of a mechanic’s lien, the statutory language must be literally observed and notice must be served upon the owner himself. (36 Am. Jur., Mechanics’ Liens § 128.) Our statute does not provide for service of the notice upon an alleged agent or attorney of the owner. In Clark Lumber Co. v. Passig, supra, 673, we said:
“Equitable considerations do not ordinarily give rise to a mechanic’s lien. (For an exception see the recent case of Adair v. Transcontinental Oil Co., 184 Kan. 454, 338 P. 2d 79.) ■ Being created by statute, a mechanic’s lien can only arise under the circumstances and in the manner prescribed by the statute. It has been said a lien claimant must secure a hen under the statute or not at all. (Doane v. Bever, 63 Kan. 458, 65 Pac. 693.) The vitality of a lien created solely by statute depends on the terms of the statute, and parties may not by estoppel enact or enlarge a statute. (Spalding Lumber Co. v. Slusher, 121 Kan. 155, 246 Pac. 999; and see cases cited therein.)”
In view of what has been said, the judgment of the trial court is affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Jackson, J.:
This is a workmen’s compensation case in which the claimant received an award and respondent employer has appealed. The only dispute now before the court is as. to the computation of claimant’s weekly wage at the time of the injury. The parties stipulated that the claimant was injured in the course of his employment on March 20, 1957; that the act applied; and respondent concedes that there is sufficient evidence to support the finding of the lower court and the commissioner as to the disability of the claimant. Therefore, those matters will not be discussed.
Going directly to the issue in controversy, the manner of assessing the wage of the claimant is quite clearly shown in the respondent’s abstract and we copy therefrom the following statement:
“Evidence shows that claimant was employed as a tool dresser and a swamper. He had worked for this respondent five days at the time of the accident. The record shows he worked 12 hours on March 14; 12 hours on March 15; 9 hours on March 18; 14 hours on March 19, and 10 hours on March 20 up to the time of the accident. At the time of his accident he was working as a trucker helper at the base rate of $1.25 per hour with overtime payable after 40 hours of work. Rule 51-11-1 of the Commissioner sets out the rule to be applied in this case: If there is no customary number of working hours per day in the character of work involved, the Commissioner rules that a period of time prior to the accident not exceeding six months, or so much thereof as the period of employment extended, should be taken and the number of hours per day the employee worked most regularly used as the customary number of working hours per day.’ It would be reasonable, therefore, to divide the number of hours worked for this employer by the number of days worked, which gives a figure of 11.4 hours average worked per day. This, then, multiplied by 7 days per week, which the evidence clearly shows was the extent of the work week, gives a figure of 79.8 hours per week. Since this claimant was paid $1.25 per hour as a base pay up to 40 hours per week, and time and one-half for all over 40 hours, the result is $50 base pay per week, and $74.63 per week as overtime, making an average weekly wage of $124.63.”
The contention of the respondent comes down to the matter of whether there was any evidence to show that the claimant was to work a seven day week. Respondent contends that claimant was employed on a job and was guaranteed no number of days of work and applying the provisions of section 44-511, G. S. 1957 Supp., the minimum week of five days governs.
However, we find that the claimant testified that he was to have a seven day week and although there is some evidence to the contrary, findings of fact made by the commissioner and approved by the district court on appeal thereto are binding upon this court since this court has no jurisdiction to pass upon questions of fact. This rule applies to the matter of the assessment of wages as well as to other facts (see Morris v. Garden City Co., 144 Kan. 790, at 793, 62 P. 2d 920; Wilbeck v. Grain Belt Transportation Co., 181 Kan. 512, 313 P. 2d 725). In the last case, it was said:
“While claimant assigns five specifications of error, they all affect the one question involving the trial court’s computation of the weekly wage and the award based thereon. We shall not disturb that computation and award because there is substantial evidence in the record to justify both. (Alexander v. Chrysler Motor Parts Corp., 167 Kan. 711, 207 P. 2d 1179; Bender v. Salina Roofing Co., 179 Kan. 415, 417, 295 P. 2d 662; Fitzwater v. Boeing Airplane Co., 181 Kan. 158, 309 P. 2d 681.)”
Attention is also directed to the case of Alpers v. George-Nielsen Motor Co., 182 Kan. 790, 794, 324 P. 2d 177, where this court again approved the computation of wages by the lower court and commissioner when such computation was supported by some evidence.
Since the above disposes of the only question between the parties, the judgment of the district court must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This appeal involves the construction of a will of a resident decedent, in which the order of final settlement of the estate in the probate court was appealed to the district court.
The principal question presented is whether a residuary gift to one of the decedent’s children, who predeceased the testator without issue, passed to the surviving residuary beneficiaries, since the will contained no language whatever regarding this contingency, or whether such gift passed in accordance with the laws of intestate succession.
The facts in this case are rather simple and are not in dispute. Carey Sowder was a resident of Greenwood County, Kansas, during his lifetime and wrote and executed the will in question on September 19, 1950. On that date he was a widower and all four of his children were living. They were: Richard D. Sowder, Gertrude lone Sowder, George A. Sowder and J. Robert Sowder. Omitting formal parts and the paragraph appointing the executors, the will of Carey Sowder reads:
“I, Carey Sowder of Madison, in the County of Greenwood, in the State of Kansas, being of good health and sound and disposing mind and memory, do make and publish this, my Last Will and Testament, hereby revoking all former wills by me made; and as to my worldly estate and all the property, real, personal and mixed, of which I shall die seized and possessed, or to which I shall be entitled at the time of my decease, I devise, bequeath and dispose thereof in the manner following, to-wit:
“First. It is my will that all my just debts and funeral expenses shall be paid by my executor at the earliest possible date.
“Second. I give and bequeath to my grandson, Robert R. Sowder, One Thousand ($1,000.00) Dollars.
“Third. I give and bequeath to my grandson, John Carey Sowder, One Thousand ($1,000.00) Dollars.
“Fourth. I give and bequeath to my son J. Robert Sowder, Five Thousand ($5,000.00) Dollars.
“Fifth. All the rest and residue of my property, whether real, personal or mixed and wherever situated, shall be divided among the following persons in the following proportions, to-wit:
“Gertrude lone Sowder, daughter, one-fourth (K) interest.
“Richard D. Sowder, son, one-half (&) interest.
“George A. Sowder, son, one-fourth (K) interest.
“It is my wish and I so request that all bequests mentioned in this instrument be paid as above directed regardless of any indebtedness to me by any of the legatees, at the time of my demise.”
John Carey Sowder is the son of George A. Sowder, and since George survived the testator, John Carey Sowder is not an heir in this estate or an interested party in this appeal. Gertrude lone Sowder, hereafter referred to as Gertrude, predeceased the testator by one month and four days and died without issue. J. Robert Sowder predeceased the testator and was survived by his one child, Robert R. Sowder, the appellant herein.
During the last years of his life Carey Sowder spent much of his. time at Emporia, Kansas, and the evidence reflected that he was in poor health the last few months before his death. His daughter, Gertrude, to’ok her own life on January 24, 1956, and by agreement between Richard and George with the nurses and doctors in charge, Gertrude’s suicide and death was not revealed to Carey Sowder.
There is no evidence to indicate whether or not Carey Sowder knew the extent and approximate value of all of his property at the date of the execution of his will, or whether or not there was a substantial increase in the valuation of that property from the date of the execution of the will to the time of his death. However, the records indicate that after payment of debts, expenses of administration and taxes, the net estate for distribution to the heirs, devisees and legatees was approximately $330,000.
Carey Sowder’s own records dating from 1925, and his canceled checks, revealed that over all of these years he had given to each of his four children various sums of money which at the time of his death totaled as follows:
J. Robert ................................ $74,498.00
Gertrude ................................ 42,475.99
George .................................. 33,315.00
Richard ................................. 27,801.00
Included in the above totals were a number of cash gifts made to each of the four children after the execution of the will in the four years before his death as follows:
J. Robert ................................ $12,000.00
Gertrude ................................ 14,750.00
George .................................. 12,000.00
Richard ................................. 8,200.00
There was no evidence of any ill feeling between Carey Sowder and any of his children or any evidence surrounding the execution of the will or subsequent acts of the testator from which it could be inferred he intended to disinherit any of his children.
The probate court in the order of final settlement and the district court on appeal from that order determined that the one-fourth share of the residuary estate, to which Gertrude would have been entitled had she survived the decedent, should be set aside to the two remaining beneficaries of the residuary clause in the proportion of two-thirds to Richard (appellee) and one-third to George (appellee), and that Robert R. Sowder (appellant) was not entitled to participate therein. The district court also determined that the will was unambiguous; that all of the property of the estate was disposed of by the will; and that the relief sought by Robert R. Sowder was not to the benefit of the estate, but to his own personal benefit, and that under such circumstances attorney fees could not be allowed to him from the estate.
Robert R. Sowder has duly perfected an appeal from each of the foregoing determinations and orders of the district court which were adverse to him.
We shall first consider whether the trial court erred in holding that the residuary gift to Gertrude, which lapsed when she predeceased the testator without issue, passed to the surviving residuary beneficiaries.
The answer to the foregoing question is controlled by the force and effect to be given Corbett v. Skaggs, 111 Kan. 380, 207 Pac. 819, decided in 1922. It is apparent that the will of Carey Sowder contained no language whatever regarding the contingency that Gertrude Sowder might die without issue prior to the testator.
The law regarding the devolution of a lapsed portion of a residuary estate is not uniform in this country. For an exhaustive survey of the authorities see 28 A. L. R. 1237; 139 A. L. R. 868; and 36 A. L. R. 2d 1117. The English common law rule, followed by a majority of the courts in this country in the absence of statute, is that the lapsed portion of a residuary devise or legacy does not inure to the benefit of the other residuary devisees or legatees under a residuary devise or bequest to several named persons as tenants in common, who do not take jointly or as members of a class, unless the intention of the testator to that effect clearly appears, but such lapsed portion of the residuary estate is removed from the operation of the residuary clause and becomes intestate property, passing to the heirs of the testator, or his distributees.
In Corbett v. Skaggs, supra, the testator, Samuel S. Kincaid, died without leaving a wife or issue. He left all of his property to ten nephews and nieces, giving specific legacies to each in varying amounts.. In .making .these specific bequests three of these beneficiaries were specifically denied the right to have any share in the residue and remainder of his estate. The other seven nephews and nieces were made residuary legatees by a residuary clause of the will which read:
“Ninth. I give and bequeath all the rest, residue and remainder of my estate wheresoever the same may be situated to William R. Kincaid, Minnie O. Freemyer, Thomas F. Kincaid, Thomas K. Bell, Mrs. M. E. Morse, Mattie Rinehart and Frances Rinehart, the same to be divided among them in the same proportion as their former [specific] bequests bear to the whole sum bequeathed them. Sixty-Three Thousand Dollars ($63,000).” (p. 382.) (Emphasis added.)
Two of the seven residuary beneficiaries died before the testator. No provision was made by the testator in the will as to what disposition should be made of the share of any deceased residuary legatee in the event that they should predecease him. The question in that case involved the proper disposition to be made of the shares of the estate which would have gone to the two persons named in the residuary clause who did not survive the testator. It should be noted in that case both the specific bequests to the two legatees predeceasing the testator and their bequest in the residuary estate lapsed.
In the opinion the court said:
“This court has not heretofore had occasion to decide whether to follow the rule requiring the lapsed share of one of several residuary legatees to be treated as property undisposed of by the will. We might now avoid deciding that question by holding — as we think the facts justify — that in any event there are special features of the will under consideration which would require a decision in favor of the surviving residuary legatees. One of them is the circumstance that the residue of the estate is larger than the part disposed of by specific legacies, which gives added force to the presumption that the testator refrained from giving all his property to tire residuaries only for the sake of the particular legatees. More important, however, is this consideration: Of the ten nieces and nephews to whom specific legacies were given, seven were also made residuary legatees. In the case of each of the other three the language relating to the specific legacy was followed by the express statement that the legatee ‘is to have no share in the residue and remainder of my estate.’ Although this provision might be open to interpretation as a mere express statement of what would be implied without it, we regard it as showing affirmatively that the testator did not wish the three legatees referred to to receive more than the specific amount allotted to them. And from his expressly indicating that these three were to receive nothing from the residue it may be inferred that it was not his purpose that any unnamed heirs should be more favored in this regard. But while in our view these specific provisions of the will plainly show the testator intended that the three legatees who were not included among the residuaries should receive no more of his estate than the sums specifically set apart to them, we think if these provisions had been omitted the same purpose would have been sufficiently clear. We prefer to rest our decision upon the general principle rather than upon exceptional features of the particular case.
“We regard the rule that lapsed shares of deceased residuary legatees shall be treated as intestate property as in direct conflict with the one to which this court is definitely committed — that the actual purpose of the testator, so far as it can be ascertained, must be given effect. The presumption against intestacy of any part of the estate is a means of carrying out this policy which is disregarded by taking lapsed legacies out of the residue for the benefit of those who would inherit from the decedent in the absence of a will. The reasons for allowing lapsed specific legacies to fall into the residue apply with equal force in favor of allowing all the residue to go to the surviving residuary legatees in the case of the death of one of them, instead of turning over a part of it to persons for whom other provision had been made, or who had not been referred to in the will at all. The statement sometimes made in support of the latter practice — that the share of a deceased residuary legatee cannot fall into the residue because it is itself a part of the residue — appears rather to play upon words than to point out any real difficulty. The result of these views is the approval of the ruling of the court distributing the residue of the estate among the residuary legatees who survived the testator, (pp. 385, 386.) (Emphasis added.)
The appellant concedes in the case before us the residuary beneficiaries were each considered individually by the testator, being named as individuals and apportioned different sums with no different purpose affirmatively shown elsewhere in the instrument. (Corbett v. Skaggs, supra.)
The appellant questions what the court meant by the quoted language above which expressly states the specific provisions of the will in Corbett v. Skaggs, supra, plainly show the testator intended that the three legatees not included among the residuaries should receive no more of his estate than the sums specifically set apart to them, particularly in view of the court’s reference to the rule to which it is committed — “that the actual purpose of the testator, so far as it can be ascertained, must be given effect.” Appellant asks:
“. . . Did it mean that without any other expressions of intent from the testator the lapsed portion of a residuary estate shall automatically go to the remaining residuary legatees? Or did it mean that the over-all purpose of the testator as gleaned from all possible sources, njade it clear that the testator did not intend for any persons other than those named in the residuary clause to share in the residuary estate, and that accordingly, the Supreme Court of Kansas would follow the rule that the intent of the testator should govern
It is then argued reference to the rule to which the court is committed reflects that the controlling factor in Kansas shall be the intention of the testator and, accordingly, that the common law rule shall not be followed when the result is inconsistent with that intention. In other words, appellant’s position is that the common law rule still persists in Kansas, since the common law rule recognizes the intention of the testator controls when it is inconsistent with the common law rule and clearly appears.
After careful examination we construe Corbett v. Skaggs, supra, as firmly holding the share of a residuary legatee who dies without issue before the death of the testator goes to the surviving residuaries, in the absence of some special provision of the will showing a different purpose. The rule that such share shall be disposed of as in the case of intestacy is rejected as being in conflict with the established policy of the court to ascertain and give effect to the actual intention of the maker of the will. (See Corbett v. Skaggs, supra, Syl. ¶ 2.)
The court there held as a matter of law, notwithstanding other special language in the will from which the same conclusion might have been reached on the basis of the testator’s “expressed intention,” the surviving residuary beneficiaries should participate in the lapsed residuary gifts “in the proportion indicated in the will.” This necessarily meant that the specified percentage of the residue given to each surviving beneficiary was augmented by and to the extent of his proportionate part of the lapsed residuary gifts.
The intention of the testator to which the court was making reference in so holding was the actual intention of the testator. The presumption against intestacy was said to be a means of carrying out the actual purpose of the testator.
In discussing the companion principle regarding the disposition to be made of lapsed specific devises under the statute of wills, this court stated in Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146 (1922):
“. . . There is no policy in this state to keep any class of property in a favored channel of inheritance as against a will, and when there is a will the presumption is against intestacy . . .” (p. 329.)
The opinion in Corbett v. Skaggs, supra, dwelt at some length upon cases from other jurisdictions. The excerpts quoted in the opinion wherein courts from other jurisdictions severely criticized the common law rule, but felt constrained to follow it, throw further light upon the holding. In criticizing the common law rule the Pennsylvania court said it did not commend itself to sound reasoning, and was a sacrifice of the settled presumption that a testator does not mean to die intestate as to any portion of his estate, and also of his plain actual intent, shown in the appointment of general residuary legatees, that his next of kin shall not participate in the distribution at all. The common law rule was also said to defeat the testator’s intention in almost every case in which it is applied.
The facts in the instant case do not permit a holding based upon the “expressed intention” of the testator in his will. It must be a firm decision rejecting the common law rule. We adhere to the holding in Corbett v. Skaggs, supra, as having already rejected the common law rule and it controls the construction of the will in the instant case.
The next question concerns whether extrinsic evidence was competent to show an intention not expressed in the will of the testator. The appellees objected to the introduction of any extrinsic evidence of the intention of the testator, and at the close of all the evidence moved to strike such oral testimony as incompetent, irrelevant and immaterial. This motion was overruled. Concerning this ruling the trial court is quoted in the journal entry as follows:
“I am not at all sure that the evidence presented is material or competent in this case. However, I am going to overrule the motion to have it stricken. But, after studying the citations I am of the opinion that the order of the Probate Court was correct, and it is, therefore, affirmed.”
The appellant relies upon Beall v. Hardie, 177 Kan. 353, 279 P. 2d 276, quoting from the opinion as follows:
“. . . In construing a will, the court must put itself as nearly as possible in the situation of the testator when he made the will and from a consideration of that situation and from the language used in every part of the will, determine as best it can the purpose of the testator and the intentions he endeavored to convey by the language used . . .” (p.356.)
Reliance is also placed upon In re Estate of Dobrovolny, 182 Kan. 138, 318 P. 2d 1053, which used similar language and stated other rules for the construction of a will where the intention of the testator was obscured by vague and doubtful expressions.
When the testator prepared his will in the instant case all of his children were living. As of that time his will was clear and used no vague or doubtful expressions. The difficulty in construing the testator’s will arises only by reason of the fact that Gertrude died prior to the testator and this fact was withheld from him. It is presumed that the testator knew the extent of his property at the time he made his will, and, absent evidence to the contrary, it must be assumed that he knew the full extent of his property and how much each of the named beneficiaries was to receive under the residuary clause of his will. He specifically stated in his will that “all bequests mentioned in this instrument be paid” (Emphasis added) as directed regardless of any indebtedness to him by. any of the legatees, at the time of his death.
While it may be said that the testator’s will is clear and unambiguous, as of the date of his death it was uncertain on its face in view of the fact that Gertrude predeceased the testator. It therefore required construction which called for application of existing law to the facts and circumstances presented. Under Corbett v. Skaggs, supra, the probate and district courts properly construed the will as meaning that in the event Gertrude predeceased the testator without surviving issue, her portion should remain in the residuum to be shared by Richard and George, the two surviving residuary beneficiaries. Under Corbett v. Skaggs, supra, no other construction is possible. This law was established by decision in 1922 and has been the law in Kansas since that date.
It is well to note at this point that J. Robert Sowder, who was given a specific bequest of $5,000, also predeceased the testator and was survived by his one child, Robert R. Sowder, the appellant herein. The will says nothing whatever about the disposition to be made of that bequest in the event J. Robert Sowder predeceased the testator. The appellant, Robert R. Sowder, however, received this bequest pursuant to G. S. 1949, 59-615, which has been the law of Kansas since 1939. This statute reads:
“If a devise or bequest is made to an adopted child or any blood relative by lineal descent or within the sixth degree, and such adopted child or blood relative dies before the testator, leaving issue who survive the testator, such issue shall take the same estate which said devisee or legatee would have taken if he had survived, unless a different disposition is made or required by the will." (Emphasis added.)
Under these circumstances Robert R. Sowder was clearly entitled not only to the $1,000 bequest specifically given him by his grandfather’s will, but also to the $5,000 specific bequest therein given to his deceased father. There is no controversy on this point. It could not reasonably be said that the will was ambiguous merely because the testator neglected to provide against this contingency, being content, presumably, to rely upon the disposition which would occur in that event by the settled statutory and decisional laws of Kansas. In this connection, the testator is presumed to have known the law of Kansas at the time he signed his will. (McConnell v. Hamm, 16 Kan. 228; Durboraw v. Durboraw, 67 Kan. 139, 72 Pac. 566; Householter v. Householter, 160 Kan. 614, 164 P. 2d 101; and In re Estate of Walton, 183 Kan. 238, 326 P. 2d 264.)
In the case of In re Estate of Walton, supra, the testators made a class gift to nephews and nieces without expressly limiting their gift to those living at the execution of the will, and it was held they were presumed to have intended to include after-born nephews and nieces under the Kansas rule. Such intention was attributed to the testators for the reason that:
“. . . since they knew or should have known that under our decisions . . . their wills became effective as of the date of their death, such gifts and devises should include all natural children of the persons therein named who, in contemplation of law, were in being on the date of the death of the surviving testator . . .” (p. 244.)
In Householter v. Householter, supra, the court stated:
. . Also courts ordinarily will not indulge in the presumption that the testator acted without advice or learning in drafting his will . . .” (p. 618.)
As a practical matter, it is inconceivable that a testator sufficiently intelligent and experienced to accumulate an estate of over half a million dollars could have been unaware of so obvious and commonplace a possibility of any of his children predeceasing him. Moreover, the law imputes such knowledge to him. Thus, in Corbett v. Skaggs, supra, the court stated:
“• • • Some cases cited in support of the [English common law] rule are affected by ... a failure to make a distinction between a legacy which lapses because of death, which the testator may he regarded as having anticipated, and one which cannot be given effect because void in itself, a condition he can hardly be deemed to have taken into account . . .” (p. 384.) (Emphasis added.)
As to the appellant’s claim that the will is ambiguous and the consequent propriety of showing the real intent of the testator by extrinsic evidence indicating the inter vivos gifts made to the testator’s children during his life, we must conclude the will is not ambiguous but clearly within the rule of construction already an nounced (Corbett v. Skaggs, supra), and hence evidence explanatory of intention was incompetent. (Postlethwatte v. Edson, 102 Kan. 104, 171 Pac. 769; and see Hopper v. Sellers, 91 Kan. 876, 139 Pac. 365; and Farley v. Fullerton, 145 Kan. 760, 67 P. 2d 525.) It is apparent the admission of such evidence did not alter the decision of the district court which, after reviewing the authorities cited by counsel, affirmed the order of the probate court.
It should be noted extrinsic evidence, attempting to show the real intention of the testator on the facts and circumstances here presented, must be distinguished from evidence admitted to show the “surrounding facts and circumstances” at the time the will was executed. Such evidence which tends to show the situation of the testator at the time the will was executed, the nature of his business, the extent of his property, his relations with his family or 'named beneficiaries, may be received if it assists in identifying property or beneficiaries, or to clarify language used in the will, but not to change the will. (Phillipson v. Watson, 149 Kan. 395, 87 P. 2d 567; In re Estate of Schnack, 155 Kan. 861, 130 P. 2d 591; and In re Estate of Blank, 182 Kan. 426, 320 P. 2d 775.) Even though the will is clear and unequivocal, extrinsic evidence for purposes collateral to the issue of intent is admissible, since the purpose for which such evidence is accepted does not relate to any ambiguity on the issue of the testator’s intent. In Farley v. Fullerton, supra, in speaking of the “surrounding facts and circumstances” it was said:
“The fact that extrinsic evidence has to be resorted to in order to ascertain the person intended to be the beneficiary of a bequest does not create an ambiguity as to the intention of the testatrix . . .” (p. 763.)
It follows that extrinsic evidence cannot affect the applicability of Corbett v. Skaggs, supra, which depends upon the testator’s intention gathered from within the will itself.
Much of the extrinsic testimony adduced below by the appellant related to facts and circumstances subsequent to the execution of the will in 1950 — the suicide of Gertrude in January, 1956, and the decision not to burden the testator with such painful knowledge; also, the gifts made by the testator to his four children between 1925 and the date of his death in 1956. Even where a will is admittedly ambiguous, extrinsic evidence competent to be admitted for the purpose of construing a will, all relates to the time of its execution and prior thereto. (Phillipson v. Watson, supra; In re Estate of Schnack, supra; and see 95 C. J. S., Wills, § 592, p. 779; and Berry v. Berry, 168 Kan. 253, 212 P. 2d 283.)
No charge is made by the appellant that appellees were guilty of fraud in withholding Gertrude’s suicide from her father. Manifestly, such evidence supplies no clue whatever to the meaning of her fathers will which was executed six years earlier. Appellant’s charge that appellees are now attempting to take advantage of their act has no merit. The decision was reached not by the appellees alone but with the concurrence of the testator’s nurse and attending physician.
Even were the extrinsic evidence of the testator’s inter vivos gifts to his four children competent, we fail to perceive how it could help the appellant, who contends that larger gifts were made to J. Robert Sowder and when the testator drew his will, it was the intention of the testator to equalize between his children the gifts which he had made by the manner in which he left his property in the will. This is refuted not only by the evidence that he continued to make unequal gifts to his four children after the execution of his will, hut also because such conjectural argument as to the testator’s possible testamentary “intention” is irrelevant. In Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, the following was quoted:
“. . . Great mistakes would probably be committed by any one who should undertake to decide from previous acquaintance with the aged father of a large family how he would desire his property to be divided after his death. The modes of thinking in different men as to the relative claims of widow, sons, daughters and grandchildren, and as to the relative values of various kinds of property, are so opposite; the circumstances of children are often so diverse as to family, connections, property, habits and success, that apart from differences in character, manners and conduct in the several claimants, and from feelings likely to be concealed in the bosom of the father, allowance would have to be made for many considerations besides equal affection for all, and the special advancements which had been made to each . . . It is no condition of this license [to execute a will] that the provisions of a will should be such as to please a jury. If the paper was properly executed, and the testator was of competent sanity, and no undue influence has been established, it is the testator’s will, and no tribunal is appointed on earth to inquire whether it ought to have been his will . . .” (p. 751.)
The only extrinsic evidence which is pertinent to the issue on appeal is proof that the testator’s residuary estate was worth over $300,000 as contrasted with the comparably nominal ($5,000) bequest to J. Robert Sowder. This demonstrates, insofar as the decedent’s testamentary benevolence was concerned, each of the other three children who was awarded"' part of the residuum was drastically favored by the testator over J. Robert Sowder. This, alone, strongly tends to support the normal Corbett v. Skaggs, supra, presumption in the instant case. (See Corbett v. Skaggs, supra, at page 385, wherein reference is made to the larger part of the estate left in the residue.)
Should the trial court have awarded appellant attorney fees payable out of the decedent’s estate?
It has been held where there is ambiguity in the provisions of a will and a real controversy as to its construction, it is competent for the court to allow reasonable attorney fees out of the estate to the defeated as well as the successful party; and in connection with the same subject it has been held that under the provisions of what is now G. S. 1949, 60-3706, the district court in its discretion has authority to tax costs and allow attorney fees and to determine from what source they should be paid, as it may deem right and equitable. (In re Estate of Walton, supra; In re Estate of Reynolds, 176 Kan. 254, 270 P. 2d 229; Singer v. Taylor, 91 Kan. 190, 137 Pac. 931; and Hurst v. Weaver, 75 Kan. 758, 763, 90 Pac. 297.)
The appellees contend that under Corbett v. Skaggs, supra, the decedent’s will is unambiguous and the appellees are clearly entitled as surviving residuary beneficiaries to share Gertrude’s lapsed residual gift, and that the extrinsic evidence adduced by the appellant neither proves nor tends to prove any testamentary intention at variance with that revealed within the four corners of the will itself. They further argue appellant has pursued this litigation solely for his own benefit, not for the benefit of the estate. Support is found in Householter v. Householter, supra, where the appellees were forced involuntarily to uphold a will which did not appear on its face to be ambiguous. No estate or trust fund was benefited by the litigation. The court held the appellant sought to recover for his personal benefit — not for the benefit of all parties incidentally concerned with the litigation. The court said: “In such cases attorneys’ fees ordinarily are not properly allowed to counsel for the unsuccessful party.” (p. 620.)
In the case of In re Estate of Reynolds, supra, one of the defendants sought to have a will construed upon a point which was clear and needed no construction, and it was held the trial court was justified in denying the attorneys’ fees of her counsel and assessing them against the funds of the estate.
Here the will was not ambiguous but did require construction. Appellees contend appellant could never have entertained any rational expectation of prevailing herein save by persuading this court to overrule Corbett v. Skaggs, supra.
We view the question presented as rather close, but are inclined to the opinion that the appellant is entitled to attorneys’ fees of his counsel payable out of the estate. Whether this court would adhere to Corbett v. Skaggs, supra, on the facts here presented which call for a firm rejection of the common law rule, without any special language in the will from which the same conclusion might have been reached on the basis of the testator’s “expressed intention,” was, in view of the overwhelming weight of authority which follows the common law rule, unless otherwise abrogated by statute, a fair question to have determined. The will even though not ambiguous was thus subject to construction on a question of law.
The rule applicable to the allowance of attorney fees is summarized in 96 C. J. S., Wills, § 1096, p. 809, as follows:
“. . . Likewise, a complainant may not be entitled to counsel fees where the will is not ambiguous or subject to construction, or where complainant’s action is for his own benefit and not for the benefit of the trust estate, . . .” (Emphasis added.)
Since the will is subject to construction on a question of law in the instant case, appellant is entitled to an allowance with which to pay the fees of his counsel in this matter. Such allowance is authorized upon the theory that it. is a benefit to the estate as an entity to have a question of law determined where there is doubt as to the proper construction to be placed upon a will.
The judgment of tire trial court is affirmed with directions that the trial court make a proper allowance to appellant with which to pay the attorneys’ fees of his counsel and assess them against the funds of the estate. | [
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|
The opinion of the court was delivered by
Wertz, J.:
This action was brought by plaintiff (appellant), K & E Drilling, Inc., a corporation, as the owner of an interest in an off and gas lease, seeking to quiet title thereto against defendants (appellees), Wyman M. Warren and Morris G. Veverka, who are the record owners of an overriding royalty interest assigned to them by plaintiff under a prior lease, which terminated without production and was released of record before plaintiff, in good faith, acquired its interest in its new lease in controversy. The sole question in issue is one o£ law involving the construction of defendants’ overriding royalty, i. <?., whether the instrument applies only to the old lease under which it was originally granted (or any extensions or renewals thereof), or whether, by its terms, it applies to completely new leases subsequently acquired, in utmost good faith, by plaintiff. The trial court entered judgment for defendants, and plaintiff appeals.
The pertinent facts are as follows: In the fall of 1954, defendants acquired two oil and gas leases on land in Graham county, which will be referred to here as the Ford No. 1 lease and the Eichman No. 1 lease. The first Ford lease, executed September 18, 1954, covered the northeast quarter and the east half of the southeast quarter of section 29, township 9 south, range 21. It was for a primary term of one year but provided for termination if no well was commenced within 120 days. The first Eichman lease, executed October 25, 1954, covered the west half of the southeast quarter of section 29 and the north half of the northeast quarter of section 32. This lease was also for a primary term of one year, but provided for termination if no well was commenced by March 21, 1955.
On November 24, 1954, defendants assigned both leases to plaintiff, in consideration of plaintiff drilling a test well on the Ford No. 1 lease. On December 12, 1954, plaintiff executed and delivered to defendants a sliding scale overriding royalty assignment on each lease. These assignments were for one-eighth of seven-eighths of the production, except when the per-well average production was fifteen barrels a day or less, in which case the override was one-sixteenth of seven-eighths of the production. The pertinent portions of these assignments provide as follows:
“The above overriding royalty shall be paid out of all such production if, as and when produced, saved and sold from tire above described land under the terms and provisions of the present oil and gas lease thereon, or any extensions or renewals thereof. It is understood that said overriding royalty shall bear its proportionate part of any and all taxes assessed against the production.
“The overriding royalty herein transferred and conveyed shall be deemed to be a covenant running with the land and shall he binding upon the successors and assigns of the parties hereto.” [Emphasis supplied.]
Plaintiff commenced a test well on the Ford No. 1 acreage December 28, 1954, and completed the same as a dry hole January 7, 1955, at which time the well was plugged and abandoned. No further drilling was undertaken under either lease. The Ford No. 1 lease expired September 18, 1955, at the end of its primary term, and was released by plaintiff October 6, 1955. The Eichman No. 1 lease terminated March 21, 1955, for failure to commence a test well, but was not formally released by plaintiff until October 25, 1955, at the end of its primary term.
On November 17, 1955, one R. A. Cook [a stranger], acquired a new oil and gas lease (referred to as the second Eichman lease) covering the north half of the northeast quarter of section 32. It will be noted that the only acreage in common under the two Eichman leases, as well as the only land involved herein, is the north half of the northeast quarter of section 32. On January 11, 1956, by assignment from Cook, plaintiff acquired an undivided one-third interest in Cook’s seven-eighths’ working interest in the second Eichman lease. \
On March 30, 1956, a commercial well was completed on the second Eichman lease, and Mobil Crude Purchasing Company, Inc., began purchasing the oil production therefrom. On April 13, 1956, defendants recorded their original December 12, 1954, overriding royalty assigned under the first Eichman lease. As a result, Mobil refused to pay plaintiff its portion of the purchase price for oil from the new Eichman lease. Upon demand by the plaintiff, defendants refused to release their overriding royalty; whereupon, plaintiff brought this suit to quiet its title to its one-third interest in the second Eichman lease and to have defendants’ overriding royalty canceled of record.
Defendants, by way of answer, admitted that the overriding royalty assignments contained the language heretofore related, but alleged that they also contained other pertinent language and the whole of the instruments should be considered by the court. Further, defendants denied their overriding royalty had expired with the termination of the first Eichman and Ford leases, and affirmatively alleged that some time after the drilling of the dry hole on the first Ford lease plaintiff conceived a scheme or plan to permit the first Ford and Eichman leases to expire in order to terminate defendants’ overriding royalties and subsequently conspired with others to obtain an interest in other leases on the same properties free from defendants’ overriding royalties. Defendants alleged that the interests plaintiff now holds in the second Eichman lease were acquired by wrongful conduct and bad faith on the part of plaintiff. Defendants further alleged that the geological information known to both plaintiff and defendants about the first Ford and Eichman leases was of such a nature that the ordinary, prudent operator would have done such additional drilling on said leases as would have resulted in the discovery of oil thereon during the primary term of the leases, and that plaintiff’s failure to do so constituted negligence and a violation of the fiduciary relationship of the parties. Finally, defendants alleged that by reason of plaintiff’s wrongful conduct, bad faith and negligence the court should construe plaintiff’s existing interest in the second Eichman lease as an extension or renewal of the original Eichman lease, insofar as it covers the north half of the northeast quarter of section 32, thus subjecting it to defendants’ assignment of an overriding royalty. In the alternative, defendants prayed the court, in equity and good conscience, to impress plaintiff’s interest in the second Eichman lease with defendants’ overriding royalty interest, prorated on the basis such interest bears to the whole of the lease.
Ry way of reply, plaintiff denied the existence of any scheme or conspiracy to permit the original leases to expire for the purpose of terminating defendants’ overriding royalty, and denied it was guilty of bad faith, negligence or breach of any fiduciary relationship.
With the issues so joined, the case proceeded to trial. The trial court held that the burden of proof on the question of plaintiff’s bad faith in acquiring the second Eichman lease was on the defendants, and that, as a matter of fact, the defendants failed to establish bad faith, but that the plaintiff established the second lease was acquired in good faith. In its conclusions of law, the court held that since there was no bad faith on the part of the plaintiff, Howell v. Cooperative Refinery Ass’n, 176 Kan. 572, 271 P. 2d 271, did not apply and the only question to be determined was what the parties intended by the original instrument assigning overriding royalties to the defendants. The court held that by the terms of that instrument defendants were entitled to an overriding royalty under any lease acquired by the plaintiff on the land described therein, and, therefore, the plaintiff’s existing leasehold interests in the land covered by the original Eichman and Ford leases were subject to defendants’ overriding royalty.
Judgment was entered for the defendants March 26, 1958. Plaintiff’s post-trial motions were overruled April 25, 1958, and plaintiff appeals. That appeal is docketed here as No. 41,265. On May 13, 1958, plaintiff filed a supplemental motion for judgment on the ground that the overriding royalty agreement, as construed by the court, violated the rule against perpetuities and was therefore void. This motion was overruled and plaintiff’s appeal was docketed here as No. 41,333.^ In oral argument to this court, plaintiff admitted its supplemental motion for judgment was filed with the district court after expiration of the term and its second appeal, No. 41,333, must therefore be dismissed.
No cross-appeal was taken from the trial court’s finding that the plaintiff acted in good faith in acquiring its interest in the second Eichman lease, and defendants admit the second Eichman lease is not an extension or renewal of the first lease, as those terms are used in the overriding royalty assignment. The parties agree that the only question here involves the trial court’s construction of the overriding royalty assignment. Defendants, in effect, contend that the overriding royalty interest created by the instrument in question could not be a “covenant running with the land,” as that term is commonly understood, since an override is not an interest in land. They maintain, therefore, that in order to give effect to that phrase in the instrument it must be construed to mean that the overriding royalty applies to subsequent leases in which plaintiff acquires an interest. Thus construed, the assignment applies specifically to three production situations: Production under the first Eichman and Ford leases, production under extensions and renewals of those leases, and production under subsequent leases acquired by plaintiff on any portion of the original leasehold acreage. Plaintiff maintains that although oil and gas leases in Kansas are not interests in real property, covenants in such leases or in assignments of interests in such leases can, and do, run with the land. In the alternative, plaintiff argues that even if covenants in an overriding royalty do not run with the land or with the lease, an “any new lease” clause is so extraordinary and unique that if the parties intended to so contract they would have spelled out their intentions with detailed clarity. Plaintiff maintains further that the phrase “covenant running with the land” has an established technical meaning; that the words of the instrument are clear and unambiguous and there is no room for “interpretation” of the phrase, which, in effect, amounts to a rewriting of the instrument.
We deem it unnecessary to discuss at length the rules concerning covenants running with the land or to determine whether the over ride here in issue could run with the land or with the lease. We have before us the same question as did the trial court and the one upon which it based its decision, i. e., the one concerning the contractual obligations turning upon the intention of the parties, as indicated by the language, employed in the instrument creating the overriding royalty. • We must therefore look to the instrument-itself. (Hale v. Oil Co., 113 Kan. 176, 213 Pac. 824.) The judgment must be affirmed only if the contract assigning the overriding royalty shows on its face the intent and purpose to apply the override to subsequent leases acquired by plaintiff, in good faith; on any portion of the original leasehold acreage.
Following the formal “whereas” clause of the instrument are the two paragraphs here in dispute. The first of these is the granting clause, which conveys to the defendants the overriding royalty in the specified size and amount. This paragraph provides that the overriding royalty is to be paid out of all production from the described land under the provisions of the “present oil and gas lease thereon” (the original Ford and Eichman leases), or “any extensions or renewals thereof.” In the second paragraph, immediately following, is the language which provides that the overriding royalty shall be deemed to be a covenant running with the land and binding upon successors and assigns of the parties.
This court has often held that the intent and purpose of a written instrument are to be determined by consideration of all the pertinent provisions and not by critical analysis of a single isolated provision. (Maltby v. Sumner, 169 Kan. 417, 219 P. 2d 395; Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P. 2d 731, and cases cited therein.)
It is clear to us that the quoted first paragraph of the instrument in question was intended by the parties to define the terms of the covenant entered into by them and to specify the land to be burdened with the covenant; while the second paragraph was intended to define the parties to be bound by the covenant. It is equally clear that if the parties had intended to make the covenant apply not only to production under the existing leases and extensions or renewals thereof but to unrelated leases subsequently acquired on the same property, they would have clearly indicated this intention by appropriate language in the granting clause, which specified the land to be burdened with the covenant, rather than by attempting to reach this result in the paragraph dealing with who was to be bound by the covenant.
Even assuming that the provisions of the second paragraph alone may be considered in determining the intent of the parties, it is not within the province of the court to reform the instrument by rejecting words of clear and definite meaning and substituting others therefor. (Geier v. Eagle-Cherokee Coal Mining Co., supra.) Moreover, where technical words or legal terms are used in a contract, they will be construed in their technical sense in the absence of anything to show that they were used in a different sense. (Seymour v. Armstrong, 62 Kan. 720, 64 Pac. 612; Francis v. Shawnee Mission Rural High School, 161 Kan. 634, 170 P. 2d 807; 17 C. J. S. Contracts § 302, p. 720; 3 Williston, Contracts, § 614, p. 1765.) The words “covenant running with the land” have a well-recognized and clear legal meaning. Regardless of the legal effectiveness of the phrase, i. e., whether or not the assignment of overriding royalties here involved is, in fact, a covenant running with the land or lease, there is no indication in the contract that the parties intended those words to mean anything different from their commonly accepted legal meaning. We cannot therefore construe “covenant running with the land” to mean that the overriding royalty applied to production under any unrelated new lease subsequently acquired, in good faith, on the same property.
We think the fair meaning of the terms of the royalty assignment is that defendants were to receive one-eighth of seven-eighths of the production only under the original Ford and Eichman leases or any extensions or renewals thereof, and that if no oil or gas was discovered during the primary term of the lease or any extensions or renewals thereof, and the lease terminated, then defendants’ rights terminated with the lease.
It follows that the judgment of the trial court in case No. 41,265 is reversed with directions to enter judgment for the plaintiff, quieting title to its one-third interest in the lease covering the north half of the northeast quarter of section 32 and canceling of record defendants’ overriding royalty, insofar as it affects the property in question. The appeal in case No. 41,333 is dismissed.
It is so ordered. | [
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Per Curiam:
This is an original proceeding in discipline, initiated upon the filing of five separate complaints against the respondent, Wayne L. Zeigler, a member of the bar of this state, practicing in Johnson County. The State Board of Law Examiners, adopting the report of a hearing parrel of the Board, recommended suspension from the practice of law for an indefinite period, based upon four of the complaints. Respondent filed his exceptions to the report and the matter is before this court for review. We will summarize the report of the Board.
Complaint of Patricia M. Mummert:
In December of 1971, complainant Patricia M. Mummert employed respondent to handle collections for her agency in Johnson County, Olathe Collections, Inc. Their agreement was that she would turn over accounts to respondent for collection and his authority would be limited to simply writing letters to the debtors, demanding payment. From the evidence it appears he was not authorized to file an action on any account unless such authority was given to him by the creditor.
Beginning in June of 1972, debtors began to complain both to Mrs. Mummert and to their creditors in regard to the type of letters being sent out over respondent’s signature. Illustrative of some of the letters is complainant’s exhibit No. 7 which, after the address to the debtor, reads:
"ohI the joy of BEING SUED II
“How do you explain to the neighbors and the kids when the Sheriff’s car pulls up front and an officer hands you the summons?
“Or, how do you explain a garnishment to the boss, and the other fellows at work???
“I don’t know, but I guess you do; at least you didn’t bother to answer my letter. You do not need to send me your check immediately to pay your account, because I am not going to bother you any more . . . but the Sheriff will. Oh yes, I will see you in court.
“You owe_$_
“PAY ME NOW! ! !”
On June 21, 1972, following an investigation of the debtors’ complaints, Mrs. Mummert sent a letter canceling respondent’s employment, effective thirty days after the date of the letter. Subsequently, in a telephone conversation with respondent on June 24, 1972, complainant requested a copy of all collection letters he was using, and respondent mailed her a copy of one form letter, which she approved. He failed, however, to send copies of other form letters he was using, including “The Joy of Being Sued” letter.
Complainant testified she also employed respondent for a legal matter otiher than collections, which concerned an agreement she had for joint occupancy of the premises where her business was located. She had sold a part of her business to a Kansas City firm, and a stipulation of the sale agreement was that complainant was to be allowed to remain on the premises until August 30, 1972. She sought legal counsel when she was notified by the firm that it was no longer going to honor the joint occupancy agreement. She stated that respondent agreed to represent her for a fee of $500.00. Thereafter, on the day before the matter was to be finalized, respondent phoned her and advised her she had to pay him an additional fee of $1,734.68 before he would proceed. She testified she did raise the additional money that night because of the duress involved, and she paid respondent so he would continue to represent her in finalizing the matter.
Complainant further testified that although she had terminated respondent’s services on June 21, 1972, she still worked with him on some accounts until September of 1972. When she sold her company on September 11, 1972, respondent had failed to account to her for money he had collected on some of the accounts that had been turned over to him.
Witness William C. Birchfield, President of Industrial Credit Association, [I. C. A.], which purchased Olathe Collections, Inc., from complainant on September 11, testified that in mid-September of 1972 he advised respondent that his services were terminated and that I. C. A. would begin using its own counsel. At that time he requested return of the files held by respondent, either to the I. C. A. office or to its attorney, Thomas J. Caenen, but the files were never returned. Birchfield also testified certain moneys had been collected by respondent and no accounting had been made for those collections.
Testimony was detailed as to a complaint involving the collection of an account of the DeSoto Grain Company against Fred Egner. Respondent received a check for $450.00 from Egner, which he endorsed and placed in his trust account on July 7, 1972. He did not account to anyone for the proceeds of this check, claiming he was holding the money to protect himself on money owed to him on collections made by complainant. It was only after a Johnson County court hearing on November 10, 1972, at which a local grievance committee was present, that respondent remitted to the DeSoto Grain Company its portion of the collection.
Although respondent was hired as an attorney for complainant to' process and collect accounts, it appears throughout the testimony in the Mummert complaint that he was attempting to acquire a proprietary interest in the accounts and was in fact seeking to eliminate complainant’s interest in those accounts.
Respondent obtained approximately $120,000 in face value of accounts which complainant had not authorized him to process for collection. These were obtained through Mary Griffin, a trusted employee of complainant at the time of respondent’s employment. Later, after her employment was terminated by complainant, it appears from the testimony that Mrs. Griffin was hired by respondent and continued to work the accounts as his employee. Further evidence concerning respondent’s continuing activity was supplied through testimony of I. C. A. counsel, Thomas J. Caenen, and by I. C. A. President, William C. Birchfield. They testified that in mid-September of 1972 respondent was advised that his services were terminated on accounts he then held for collection. He continued to make collections and to work the accounts, contrary to supplemental instructions he received in a letter from Caenen dated October 5,1972.
Complaint of John and Donna Libel:
In February of 1973, complainant Donna Libel hired respondent in a child custody dispute with her former husband. She testified respondent was to represent her on a motion filed by her former husband to change the custody of the child to himself. He was also to represent her in obtaining child support and alimony payments upon which her former husband was in default. She paid a $500.00 fee which she later discovered was a retainer only, and his total fee amounted to some $1,500.
Complainant charged that from the time she employed respondent until he was relieved of further duties in her case on September 18, 1973, he did not properly or expeditiously represent her. A hearing was called for February 28, 1973, on a motion filed by complainants ex-husband to change the custody of their minor child, although no hearing was held. A journal entry was prepared which provided for visitation. Its provisions were contrary to the wishes of complainant and she so advised respondent; however, on August 3, 1973, the entry was submitted to the judge, signed, and entered by the court.
In addition to the foregoing, respondent collected money on the past-due child support and/or alimony through garnishment, but he refused to pay this money to complainant and instead put the money in his trust account. By his own testimony, respondent made no attempt to have the court allow his attorney fees against the ex-husband, but he looked entirely to complainant for his fees.
Complaint of Minnie Loughin:
This complaint grew out of an attempt to collect a judgment against Minnie Loughin for a dental bill. On September 9, 1971, the Loughins paid this bill in full. Complainant testified she advised respondent’s office by telephone that the bill had been paid. Thereafter, without further investigation, respondent called Mrs. Loughins husband’s employer and told him he was going to issue a garnishment. He then sent the following letter (exhibit No. 2) to complainant’s husband:
“written notice of garnishment
“Dr. Sippy
vs
"Charles Loughlin [sp]
RR # 1 Rox 208 A
Stilwell, Kansas
“Since you have refused to pay this debt voluntarily or to keep your arrangements for payment:
“Court action is now required.
“Therefore be advised, your wages will be garnished. Twenty-five percent (25%) thereof will be taken for the payment of this bill unless the entire balance of $143.00 is paid immediately to Wayne L. Zeigler.”
Complaint of Lynne Kohleb:
This complaint grew out of the employment of respondent by complainant Lynne Kohler in a divorce proceeding. She had em ployed him previously in a separate maintenance and divorce action, but the parties had subsequently remarried. In this instance, respondent was employed by complainant on or about August 11, 1964. There was substantial difficulty in obtaining service on the defendant who had moved to Arizona, but finally service was obtained by publication. On February 18, 1965, the divorce was granted and complainant was in the courtroom to testify. It appears a controversy arose thereafter between complainant and respondent regarding fees owed respondent, including balances due on prior actions. Respondent advised complainant he would not obtain and file the formal divorce decree until she paid the balance of his fees. Nothing further was done until December 22, 1972, when complainant filed a complaint with the Johnson County Grievance Committee. The Committee advised respondent he was in violation of Rule 16 of the Johnson County Court, which required the prevailing party to promptly prepare a journal entry of judgment. On February 13, 1973, respondent prepared and filed a journal entry of judgment.
» *» «
Respondent contends the Board of Law Examiners erred in the admission of evidence,and that the admitted evidence was insufficient to support the Board’s conclusion that he violated the disciplinary rules identified in its report. He also argues the complaint against him failed to set forth with sufficient particularity the acts of misconduct with which he was charged. His final contention is that under the circumstances in this case suspension from the practice of law for an indefinite period is unduly and unreasonably harsh.
We will first consider respondent’s contention that the charges against him were not made in compliance with Supreme Court Rule No. 207 (b) (K. S. A. 1974 Supp. 7-124), which requires the charges be set forth with sufficient particularity to inform the attorney clearly and specifically of his acts of misconduct. We have examined the record and find no formal complaint. It follows that the respondent was tried on written statements of the complaining witnesses. Whenever charges against an attorney do not inform him with sufficient particularity that he knows the basis of the charges he must defend, the complaint should be dismissed; but in this instance each of the written statements disclosed an attorney-client relationship, the incidents out of which the charges arose, and respondent’s acts of misconduct. Although many of the details relating to the acts of misconduct presented at the hearing were not disclosed in the written statements, respondent had knowledge of what occurred equal to that of the complainants, and we cannot say he was not adequately informed as to the nature of the charges against him.
Respondent cites State v. Berkley, 214 Kan. 571, 520 P. 2d 1255, in support of his position. Berkley is not in point. In that case a formal complaint was filed, charging the Berkleys with advertising and soliciting. The Board found they violated the rule relating to conflict of interest. Here, the written statements related to misconduct in connection with incidents arising out of an attorney-client relationship — the same acts which resulted in the recommended discipline.
Respondent further contends the evidence was insufficient to form a basis for the conclusion that he violated certain identified disciplinary rules. In support of this contention, he isolates certain findings of the Board and attempts to argue the Board was in error in its findings and the conclusions based thereon. After analyzing respondent’s contention we must admit some of the isolated findings of the Board, as well as its conclusions that they constituted violations of the disciplinary rules, may be questionable. We see no necessity for further consideration of the arguments made by respondent in view of violations found by the Board which we conclude were supported by the evidence.
In regard to the Mummert complaint, we find the following violations of the Code of Professional Responsibility (K. S. A. 1974 Supp. 7-124):
1.In response to the request that respondent forward copies of all demand letters he was mailing to account debtors, respondent sent a copy of one letter, notwithstanding the fact he was utilizing several other collection letters. We find such conduct was a violation of DR 1-102 (A) (4). (Engage in conduct involving deceit and misrepresentation.)
2. Respondent’s use of “The Joy of Being Sued” letter set forth herein reveals a lack of sound professional judgment and violated DR 1-102 (A) (6). (Conduct that adversely reflects on fitness to practice law.)
3. Mummert requested a return of all accounts which were not active, and for an accounting, and Industrial Credit Association made the same request after it purchased Mummert’s accounts. Respondent failed to return the accounts and failed to make any accounting. Such action on his part violated DR 9-102 (B) (1). (A lawyer shall promptly notify a client of the receipt of funds.) It also violated DR 9-102 (B) (4). (A lawyer shall promptly pay or deliver to a client as requested by a client the funds or other properties in the possession of the lawyer which the client is entitled to receive.)
4. Respondent endorsed a collection check from Fred Egner drawn to the order of DeSoto Grain Company and placed the proceeds in his trust account. Respondent claims as an attorney he could properly endorse it and that he had a lien upon the proceeds. His failure to account for the funds, however, was in violation of DR 9-102 (B) (1) and (4).
5. Respondent sent out several form notices drawn in a manner similar to legal documents. These letters simulated legal processes and clearly misrepresented the truth. We find such action violated DR 1-102 (A) (4).
In regard to the Libel complaint, we find respondent prepared a journal entry providing for visitation rights for Mrs. Libel’s former husband, contrary to her directions, and thus violated DR 7-101 (A) (1). (A lawyer shall not intentionally fail to seek the lawful objective of his client.)
In regard to the Loughin complaint, we find respondent simulated legal process by drafting and sending to Loughin a “Notice of Garnishment” letter in violation of DR 1-102 (A) (4). We also find respondent took action on an account after being informed the account was paid and without making any effort to learn if the information was correct. This violated DR 7-102 (A) (1). (A lawyer shall not take action on behalf of a client when he knows such action would serve merely to harass another.)
In regard to the Kohler complaint, we find respondent violated DR 1-102 (A) (6) in failing to file a journal entry in a divorce case because of a dispute over his fee.
Respondent’s final contention is in regard to the discipline imposed. He claims suspension from the practice of law for an indefinite period is unduly and unreasonably harsh. His only argument is that the Board failed to consider the financial hardship which will be imposed on respondent and it failed to consider his many years of excellent and reputable practice of law.
In recent years, the law profession has extended its services through numerous innovations to many new segments of the population. This, together with a numerical growth, has brought into focus a demand for greater professional integrity. The Code of Professional Responsibility was adopted by this court on February 11, 1970, to become effective on July 1, 1970. Its adoption was an effort by this court to elevate the standards of professional conduct and strengthen their enforcement.
The desired confidence and faith of clients in members of the legal profession can only be obtained by a strict adherence to the adopted code. Lawyers should accept as a part of their professional life an elevated standard of conduct not required by most of their non-lawyer associates. The responsibilities of the profession require, “. . . there must be exacted those qualities of truth-speaking, of a high sense of honor, of granite discretion, of the strictest observance of fiduciary responsibility, that have, throughout the centuries, been compendiously described as moral character.’” (Concurring opinion by Mr. Justice Frankfurter, in Schware v. Board of Bar Examiners, 353 U. S. 232, 247, 1 L. Ed. 2d 796, 77 S. Ct. 752.)
In view of the foregoing concepts of the obligations of members of the legal profession, and in view of the failure of respondent to abide by the accepted standards of professional conduct as herein concluded, we cannot say the punishment invoked was unduly and unreasonably harsh.
The Státe Board of Law Examiners was created by rule of this court (K. S. A. 1974 Supp. 7-124, No. 202 [a]), as an adjunct of the court to have general supervision over the discipline of attorneys. The role of the Board is similar to that of a commissioner appointed by this court to conduct hearings and to make a report of his findings, conclusions, and recommendations. Although such a report is advisory only, it will be given the same dignity as a special verdict by a jury, or the findings of a trial court, and will be adopted where amply sustained by the evidence, or where it is not against the clear weight of the evidence, or where the evidence consisted of sharply conflicting testimony. (See, 7 C. J. S. Attorney and Client, §37, p.805.)
We have no hesitancy in concluding the findings of the Board were amply sustained by the evidence and respondent’s acts of misconduct justify the discipline recommended by the Board of Law Examiners.
It is therefore by the court considered, ordered and adjudged that Wayne L. Zeigler be and he is hereby suspended from the practice of law for an indefinite period. Costs of this proceeding are taxed to respondent.
Fromme, J., not participating. | [
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Per Curiam:
Claimant-appellant Eugene T. Hall, in this workmen’s compensation case, fell from the top of a tank and sustained fractures of the lumbar vertebrae, multiple fractures of the pelvis, fracture of an elbow, loss of control over his right foot, and other related injuries which were permanently disabling. The only question is the degree of disability.
The expert opinion testimony of three doctors ranged from eighty percent to thirty percent in terms of permanent partial impairment of function. They all agreed appellant would be unable to perform the duties of his former employment of physical labor of shoveling sand, carrying sacks of cement, lifting scrap metal, driving a fork lift, and the like. The evidence shows appellant sustained a permanent total work disability.
The examiner and the director found that appellant was permanently and totally disabled. On appeal to the district court the court reduced the award to seventy-five percent permanent partial disability.
We find there is no competent substantial evidence to support the district court’s finding (Davis v. Winchester Packing Co., 204 Kan. 215, Syl. ¶ 1, 460 P. 2d 617; May v. Quality Chemical, Inc., 215 Kan. 491, 524 P. 2d 761).
The judgment is reversed and the action remanded with directions to enter judgment for appellant based on permanent total work disability.
Fromme and Prager, JJ., not participating. | [
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant (Tony R. James) appeals from convictions by a jury of aggravated burglary (K. S. A. 21-3716), rape (K. S. A. 21-3502), and aggravated sodomy (K. S. A. 21-3506). Various trial errors are raised on appeal.
The victim of the rape and sodomy, who will not be named, was unmarried at the time. She occupied a residence in Wichita with another woman, who was at work during the night in question. The victim entertained her boyfriend the evening of April 7, 1971. They watched a movie on television which ended about 10:30 or 11 p. m., when they went out for a coke. After her boyfriend returned the victim to her residence, she prepared for bed. About five minutes after her boyfriend left she heard a knock on the front door. She fixed the time at approximately 11:45 p. m. She went to the door and inquired who was there and received a reply — “This is the Police Department.” She opened the door and discovered a man whom she identified as defendant — “coming through the door at me.” The victim further testified that defendant immediately wedged his foot between the wall and the door and, although she tried to push him out, he pushed her inside and came through the door. Defendant placed an instrument, which the victim described as small and pointed, to her neck, put his hand over her nose and mouth, and told her to do exactly what he said and she would not get hurt. She was shoved along through the living room and hallway into the bathroom where she was forced to commit oral copulation, following which she was raped. Defendant had placed a towel over the victim’s head, and after completing intercourse, he took the towel off, told her not to look up at him, handed her the towel, and told her to wipe herself so he could watch; defendant then placed the towel on her head. After instructing the victim again to keep her head down, defendant departed through the back door. The victim made a positive in-court identification of defendant.
The principal issue at trial was the identity of the perpetrator. Defendant’s counsel vigorously cross-examined each of the state’s witnesses who gave identification testimony.
Defendant specifies as his first point of error — “Tire trial court erred in admitting evidence of prior offenses contrary to K. S. A. 60-455.” Actually, the offenses referred to occurred subsequent to the offenses for which defendant was tried, but prior to trial. No point is made in this regard. They were sex related offenses bearing similarity in numerous respects to the incident giving rise to the charges in the instant case. The first of the two subsequent incidents occurred the night of June 12, 1971, and the second during a night early in October 1971. It appears that charges were not filed on either of these two incidents.
During the state’s opening statement the prosecuting attorney informed the jury that the state would present evidence concerning the first incident and described it in some small detail. There was no objection. The prosecutor commenced to tell the jury of the second incident, at which time the defendant lodged an objection, which defendant says was made on the ground that the state was seeking to prove a character trait which is prohibited by K. S. A. 60-447, and additionally that none of the eight purposes for which K. S. A. 60-455 allows such evidence, were present. Out of the presence of the jury, the trial court heard extensive arguments of counsel, which are reproduced in the amended record on appeal. The record indicates the court was fully informed as to the particulars of the second incident and made inquiry into the state’s justification for offering the testimony. The court overruled defendant’s objection, and evidence of the second subsequent incident was received at trial without further objection either to any of the evidence or the limiting instruction under K. S. A. GO-455 given in connection therewith. Even though no objections were made during trial, in his motion for a new trial defendant claims error with respect to evidence of both subsequent incidents, as well as to the scope of the 60-455 instruction. Since defendant failed to make timely objection to evidence of the first subsequent incident, appellate review is foreclosed pursuant to the contemporaneous objection rule prescribed by K. S. A. 60-404. (State v. Horne, 215 Kan. 448, 524 P. 2d 697; and State v. Shepherd, 213 Kan. 498, 516 P. 2d 945.) Nevertheless, we have examined the testimony concerning the first, or June 12, incident and find the rape and sodomy committed on that occasion to have been perpetrated under circumstances very similar to those shown in the case on trial. The evidence was clearly admissible on the issue of identity.
Although evidence of the second subsequent incident, which occurred in October 1971, was not objected to when offered at trial, because of defendant’s objection during the state’s opening statement, we deem the question raised is entitled to consideration. Even though the acts of rape and sodomy were not consummated, we believe the victim’s testimony concerning the perpetrator’s conduct, language used, and other surrounding circumstances shows sufficient similarity to make the evidence relevant on the issue of identity. This victim testified that around midnight on a date early in October 1971, her husband was working and she was home alone. The night was hot and the front door had been left open. The victim was lying on the couch watching television when someone came to her front door. She testified “he told me not to move, he had a gun and to do whatever he told me to do.” The victim further testified that the encroacher told her to keep her eyes closed, roll over on her back, spread her legs, keep one foot on the floor — “Then he told me to take off my top and to play with my breasts; and then he kept telling me to play with myself and everything.” The victim testified that she did all the things the intruder told her to do because she was afraid since he had told her he had a gun. The victim testified the encroacher remained at the front door about ten to fifteen minutes, but she never got a good look at him. Her husband arrived home a few minutes later. He testified that, as he approached his apartment, he got a good look at a man who jumped off the front steps; that the man was visible because of a nearby street light, and the light from a porch light on the next door apartment. The husband made a positive in-court identification of defendant.
As we have indicated, the trial court in the first instance heard arguments and considered the matter outside the presence of the jury; under the overall facts and circumstances shown by the record, we believe its ruling should stand. Where identity is the critical issue in a criminal case, evidence of similar offenses is of particular probative value. Here all three of the offenses were sex related. In all three, similar sexual deviation and voyeuristic conduct was evidenced, each occurred in the same part of Wichita and each within one hour of midnight. Threats of physical violence and instructions were given to the victim in each case in identical or very similar language. In each instance the encroacher came to the front door and employed similar methods by means of which he attempted to prevent the victim from getting a view of his face. As we have previously indicated, the trial court carefully considered the matter in the first instance and we are unable to say that abuse of discretion is shown.
The same issue was presented in similar context in State v. Masqua, 210 Kan. 419, 502 P. 2d 728, cert. den. 411 U. S. 951, 36 L Ed. 2d 413, 93 S. Ct. 1939. At page 423 of the opinion in Masqua, Chief Justice Fatzer speaking for the court said:
“. • . Moreover, while independent of the charges in question, the testimony reflected offenses of a similar character; under proper instructions outlining the purpose of such testimony it was admissible as showing identity, guilty knowledge, intent, plan or mode of operation, and motive. (Citing cases.).”
We also note that the facts and issues before us in the instant case bear marked resemblance to those appearing in State v. Hampton, 215 Kan. 907, 529 P. 2d 127. It will suffice to say our conclusion herein accords with that decision. See, also, State v. Gonzales, 217 Kan. 159, 535 P. 2d 988.
Defendant’s second point is directed to instruction No. 12 which limited the jury’s consideration of the evidence of other offenses as provided by K. S. A. 60-455. The instruction given was in “shotgun” form including all of the eight elements enumerated in the statute. Since the evidence was relevant to identity — the critical issue in the case — the instruction was not erroneous as a matter of law and it became the law of the case upon defendant’s acquiesence. (State v. Masqua, supra, and cases cited therein.) We note, in passing, that this case was tried on January 10, 1972, prior to the caveat of this court concerning “shotgun” type instructions under 60-455 announced in State v. Bly, 215 Kan. 168, 523 P. 2d 397; State v. Clingerman, 213 Kan. 525, 516 P. 2d 1022; and State v. Masqua, supra.) We were informed on oral argument that the delay in perfecting this appeal stemmed primarily from defendant’s change of counsel.
In his next point defendant challenges instruction No. 5 setting out the elements of rape as prescribed in K. S. A. 21-3502. The phrase “sexual intercourse” is used in the instruction, but the court omitted a definition thereof as set out in K. S. A. 21-3501 (1). Defendant’s claim of error cannot be sustained because he failed to object at trial and the instruction as given is not clearly erroneous since it was complete and correct in all other respects. As previously indicated, the only issue in the case was identity. The facts of rape and sexual intercourse were not disputed. (See State v. Loomer, 105 Kan. 410, 184 Pac. 723.)
In his fourth point defendant claims a note sent by the jury, during deliberations, to the trial court indicates the jury was not impartial. Defendant contends the court erred in not granting a new trial because of this note. The note in question, as reproduced in the state’s brief, reads:
“How was this Tony James identified with or accused of the last two crimes? Was there a line-up? Why didn’t the defense offer some defense in this case? Or are we allowed to ask this?” (Emphasis supplied.)
The underlined sentence, upon which defendant makes his point, had been crossed out, indicating the jurors realized, even before sending the note, that they were not to consider defendant’s failure to testify. Defendant, however, contends the jury “obviously” ignored the court’s instruction No. 13, wherein the jury was instructed not to consider the fact he did not testify. It appears to us, however, that the crossing out of the sentence, concerning defendant’s failure to testify, indicates the jury did remember instruction No. 13. Any uncertainty as to what the jurors should and could consider was erased by the court’s answer to their note. The court replied:
“The jury may consider only the evidence which has been introduced in the present case. Please review Instructions Nos. 9, 13 and 18.”
The instructions referred to informed the jury that the burden of proof never shifts from the state to the defendant; that it was not to consider in any manner the failure of the defendant to testify or construe it as a circumstance against him; and that it was not to consider anything in connection with the case except the evidence which had been admitted and the law given in the instructions.
In his last point defendant contends the trial court committed reversible error in giving instruction No. 20. Defendant contends this general instruction, which informed the jury that it was to lay aside all pride of opinion and not espouse or maintain, in a spirit of controversy, either side of the case, was erroneous as violating defendant’s Sixth Amendment rights to a jury trial in that it unduly pressured the jury into believing that it had a requirement to retrun a unanimous verdict. Here again, the record does not reflect that defendant objected to the giving of instruction No. 20, and defendant cites no authority indicating the instruction was clearly erroneous. This court has, on several occasions, considered and approved instructions similar in substance to that complained of herein. (State v. Boyd, 206 Kan. 597, 481 P. 2d 1015, cert. den. 405 U. S. 927, 30 L. Ed. 2d 800, 92 S. Ct. 977; State v. Oswald, 197 Kan. 251, 417, P. 2d 261.)
We find no reversible error shown and the judgment is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Harman, C.:
This is an appeal from a district court order of adoption of a child granted without the consent of the natural mother.
William and Annetta Herbst were married in 1968. Annetta had a child, Lesa, by a prior marriage. On January 1, 1970, Tracy Dawn, the subject of this proceeding, was bom to William and Annetta.
The Herbsts made their home in Kansas City, Kansas. Soon after Tracy’s birth Annetta commenced working as a bartender at the Chatterbox Club, a private club, in Kansas City and William became employed by the Rock Island railroad. Marital difficulties arose between the couple and they separated in August, 1970. Annetta kept Tracy, leaving her with babysitters and with the paternal grandmother, Marie Herbst. In September Annetta informed William she did not have a babysitter and would have to take the child to the club with her. Over William’s objection she took Tracy to the club. Later William took the child and she was thereafter cared for by the paternal grandmother until William’s present spouse assumed her care.
In January, 1971, William filed for divorce from Annetta in the district court of Wyandotte county on the ground of gross neglect of duty and incompatibility. Annetta was served with summons and with copy of the petition but she did not appear in the action and on March 4, 1971, William was granted a divorce and the custody of Tracy. The divorce decree was silent as to visitation rights of Annetta. Annetta learned of the divorce through a friend the day after it was granted.
On May 14, 1971, Annetta married Michael Compton. On December 16, 1972, William married Deborah Ann, his present wife, who is the petitioner for adoption herein. Deborah started helping the paternal grandmother take care of Tracy during the summer of 1972 when she and William became engaged. Since their marriage Deborah and William have lived at the former home of the paternal grandmother near- McLouth, Kansas, and Deborah had taken care of Tracy up to the time of the adoption hearing.
On December 20, 1973, Deborah Herbst filed a petition in the probate court of Jefferson county for the adoption of Tracy. William consented to the adoption. Annetta did not. In lieu of her consent the petition alleged she had failed to assume the duty of a parent for two consecutive years. The probate court heard the matter and denied the adoption. Deborah appealed this decision to the district court which, after de novo hearing, granted the petition and ordered Tracy’s adoption by Deborah. Annetta has now brought the matter here.
K. S. A. 1974 Supp. 59-2102 provides in pertinent part:
“Before any minor child is adopted, consent must be given to such adoption.
“(1) by the living parents of a legitimate child or
“(3) by one of the parents if the other has failed or refused to assume the duties of a parent for two (2) consecutive years or is incapable of giving such consent or . . .”
Upon appeal Annetta contends the evidence presented to the trial court was insufficient to support its finding she had failed to assume the duties of a parent for two consecutive years preceding the filing of the adoption petition, thus rendering her consent unnecessary. The petition was filed December 20, 1973. The trial court heard controverted evidence as to just what attention appellant Annetta had paid to Tracy during the crucial two year period while the little girl was being cared for by her father, her paternal grandmother and her stepmother, appellee Deborah. In a comprehensive memorandum opinion it discussed the evidence and made extensive findings of fact. The court specifically rejected much of appellant’s testimony and other evidence offered by her, choosing instead to believe the version of events related by appellee’s witnesses, particularly the paternal grandmother. Essentially it found appellant had not visited the child during 1971 as asserted by appellant, had made no effort to do so, and had visited her only three times in 1972, the last visit being in June or July. Appellant always had someone with her and was never alone with Tracy. During these visits Tracy did not know who appellant was. During this last visit appellant’s daughter Lesa, whom appellant had brought, announced that her father and Tracy’s father was the same man and Tracy did not have Herbst blood. The clear implication is that this information had come from appellant. When these statements were made the paternal grandmother told appellant to leave and not return. Appellant made no visits thereafter. She did not leave her telephone number or place of residence with the Herbsts so that she could be contacted in case of Emergency. Previously there had been some animosity between appellant and the Herbst family, engendered in part at least by numerous telephone calls by appellant made to the grandmother during early morning hours in which appellant used abusive language and threatened her ex-husband William but never inquired about Tracy. During the entire two year period the only gift furnished by appellant for Tracy was one doll. Appellant did not send any other type of remembrance, message or card either at Christmas, on Tracy’s birthday anniversary or at any other time.
In its memorandum opinion the trial court also noted the fact appellant was familiar with divorce proceedings. She had secured custody of her child Lesa in divorce from her first husband and knew about matters relating to custody, child support and payment of attorney fees by the husband. Appellant made no effort of any kind to secure visitation rights with Tracy through the Wyandotte county district court or otherwise. She sought visitation rights only in the adoption proceeding after it had been commenced.
Whether an individual has failed to assume parental duties for two consecutive years is a fact question to be determined by the trier of the fact (In re Sharp, 197 Kan. 502, 419 P. 2d 812). Appellant contends her three visits during 1972 showed sufficient assumption of the duties of a parent so that under 59-2102 her consent was requisite to Tracy’s adoption. Since the adoption of that statute in its present form this court has had occasion to consider that which constitutes failure or refusal to assume parental duties within its meaning. See, e. g., In re Waters, 195 Kan. 614, 408 P. 2d 590, and In re Sharp, supra. The exercise of the right of visitation is only one of several factors to be considered in making such determination. Sharp, as here, involved an adoption initiated by a stepmother to which the natural mother, who did not have custody and from whom support money was not required or expected, had not consented. The latter visited the child one time during the critical two year period. We held there that parental duties include the natural and moral duty to show affection, care and interest toward the child and this duty was not discharged by a single visit. In reaching this conclusion we noted the similarity in language of the English adoption act to that of our own. In England the court may dispense with the consent of a parent who has persistently failed, without reasonable cause, to discharge the obligations of a parent (Adoption Act, 1958, 7 Eliz. 2, ch. 5). Respecting construction of that act we said approvingly in Sharp:
“In the case of In re P. (Infants), [1962], 1 Weekly L. R. 1296 (C. D.), the term 'obligations of a parent’ was construed to include not only the common-law or statutory duty to maintain a child in the financial or economic sense but also to include the natural and moral duty of a parent to show affection, care and interest toward his child. The court held that the natural mother’s consent was unnecessary, notwithstanding the fact she had occasionally sent gifts, contributed some financial support, and had visited her children on three occasions during the three years next preceding the filing of the application for adoption.” (p. 507.)
We further said:
“. . . it is difficult to imagine that a natural mother, although without the privilege of full custody, would be unmindful of important occasions in the lives of her children, and that she would be content to ignore them, particularly on holidays and birthdays. Neither does it appear she made any inquiry whatsoever about their welfare.” (p. 508.)
Appellant here admitted she had never sent any birthday or Christmas greetings or acknowledgment to her child. She did supply one gift and made three perfunctory visits, the latter attended with strife unnecessarily generated by appellant. For all practical purposes in the three years immediately prior to the commencement of the adoption proceedings appellant remained indifferent toward Tracy. She argues she was prevented by the Herbsts from exercising visitation rights. In In re Waters, supra, a father opposing adoption of his child offered as justification for his failure to see the child the excuse that the maternal grandmother bore him animosity and would not have permitted him to see the child. This court declined to accept this justification for the fathers failure to attempt to see the child. Here appellant made no effort to see Tracy although she was aware of court proceedings through which that could be accomplished. Appellant exhibited no concern for Tracy or her well-being. Her conduct was virtually tantamount to abandonment. It is not our province to reweigh and reassess evidence on matters in dispute at the trial. Suffice it to say that evidence favorable to appellee’s position sufficiently supports the trial court’s findings and conclusions.
In her brief appellant says she is not asking for present custody as she realizes the child Tracy has established ties with her stepmother which ought not be broken, but she says she would like to have visitation rights. Our adoption statutes make no provision for such an intermediate position of a natural parent. As recently pointed out in Browning v. Tarwater, 215 Kan. 501, 524 P. 2d 1135, “Public policy demands that an adoption carry with it a complete breaking of old ties.” (p. 505.)
Appellant makes two further contentions in support of reversal. Neither of these was presented to the trial court and they will not be considered for the first time upon appeal.
The judgment is affirmed.
APPROVED BY THE COURT.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Katjl, J.:
This is an action to recover damages allegedy re-
sulting from a fire caused by a defective electric blanket. Plaintiff-appellant (Alan S. Querry) instituted a products liability action against defendant Montgomery Ward and Company, Inc., and Northern Electric Company, retailer and manufacturer, respectively, of the electric blanket in question. Plaintiff1 s action against J. A. Peterson Realty Company is premised upon negligence in failing to provide fire extinguishers in the apartment building where plaintiff was a tenant on the date of the fire. At the close of plaintiff’s evidence, all defendants moved for a directed verdict. Defendants’ motions were sustained and, after plaintiff’s motion for a new trial was overruled, this appeal was perfected.
The questions presented are whether plaintiff has made out a case on (1) res ipsa loquitur and (2) breach of implied warranty against defendants Montgomery Ward and Northern Electric and (3) a case of negligence against defendant Peterson.
Plaintiff’s evidence discloses that to the best of his recollection he purchased the blanket on December 20, 1972, at the retail store of Montgomery Ward in Topeka. The blanket was packaged in a sealed wrapper. Plaintiff took the blanket home, plugged it into a wall socket near his bed, and left it plugged in the socket until the time of the fire. In the interim plaintiff used the blanket six or seven times. Plaintiff’s apartment was a studio one-room apartment located on the second floor with two other apartments. Plaintiff’s testimony describing the interior of his apartment is narrated as follows:
“. . . As you enter the front door, the kitchen area, bathroom, etc., are off to the right Off to the left is the living room area. There was no separate bedroom and the plaintiff used a single bed for sleeping at night and for a couch during the day. The bed was flat up against the same wall as the entrance door. About one half way between the foot of the bed and the head of the bed was an electric outlet. On the night of the fire, there was plugged into that outlet a high intensity reading lamp and the electric blanket purchased from Montgomery Ward. . . .”
Plaintiff further testified that at no time when he used the blanket, either on the evening of the fire or on previous occasions, did he ever notice anything unusual about the blanket. Plaintiff was away from his apartment for a little over a week, during the Christmas season, after he purchased the blanket.
On January 4, 1973, the evening before the fire, plaintiff went to the Elks Club in Overland Park where he had drinks with friends. He returned to his apartment about 10:30 or 10:45 p. m. and immediately turned on the blanket. Plaintiff smoked a cigarette, which he believes he disposed of in the commode, and went to bed. He noticed the bed was warm, and he saw nothing unusual about the blanket’s operation.
Plaintiff’s testimony of ensuing events is narrated as follows:
“. . . Plaintiff noted that the bed was warm and noticed nothing unusual about the blanket’s operation. Plaintiff was lying in the bed mostly on his left side, though somewhat on his stomach, next to the wall, with his head facing away from the wall. The electric blanket cord ran from the wall socket in the center of the bed down to the blanket controls which were laid on the floor at the head of the bed. From the control box the cord extended back to the foot of the bed where it tied into the blanket.
“At approximately 1:30 a. m. on January 5, 1974, plaintiff was awakened rather abruptly when he felt his left leg burning. The electric cord had been between his leg and the wall and he assumed that it caused the bum. He jumped out of bed quickly and noticed while doing so, that there were all kinds of sparks that seemed to be emanating from around the head of the bed where he kept the controls for this electric blanket. Because of the positioning of the control unit on the floor in relationship to the head of the bed, plaintiff could not actually see the control unit. The edge of the covers towards the head of the bed were starting to smoulder. Plaintiff thought about a pail of water he kept in the furnace room but decided against using the water at that moment because he thought it was an electrical fire. He then ran out into the hall to get the fire extinguisher that had always previously been in its proper position, but found that it was not there. Plaintiff then returned to the apartment and observed that the left hand comer of the covers and the edge of the mattress and sheet were beginning to bum. Plaintiff then ran down to the first floor to get the fire extinguisher which was kept there. It was also missing, and in his haste and possibly due to wetness in the stairway, he fell part way down the stairs. By the time he came back upstairs the fire had spread to the pillow and had started along the wall by the bed itself. At this time plaintiff could do nothing but abandon the apartment.”
As a result of the burn on his left leg, which awakened him, plaintiff sustained a scar which he described as an arc about four to five inches long. He had no actual knowledge, other than the circumstances, as to what caused the bum. In relation to his position on the bed and the wall socket, next to the bed, plaintiff testified the scar was approximately on a line directly out from the wall socket.
Concerning the possible use of the fire extinguisher, had it been in place, plaintiff testified that he knew that the use of water or the fire extinguisher, which was a soda acid type, on an electrical fire was dangerous and might have caused him injury. Nevertheless, he claimed that if he had found the fire extinguisher in its intended place he could have controlled the fire by playing the extinguisher on the fringes and, thus, confining the fire damage to the bed and pillow.
After the fire, plaintiff returned to his apartment and removed the remains of the blanket control unit and the wires leading into it. Plaintiff also took the wall outlet and the wires leading into it.
Mary Eichelberger, an employee of the Fox Run Apartment Complex wherein plaintiff’s apartment was located, was called and arrived at the scene about 1 a. m. She accompanied plaintiff to the hospital and had a conversation with him. She testified that plaintiff told her a spark from the wall socket by his bed hit him in the leg and awakened him.
Plaintiff was treated by a Dr. Sullivan who described the burn on plaintiff’s left leg as being like a brand which could have been caused by an electric cord. However, the doctor stated he had no special training in examining burns and that his opinion as to possible causes was in the form of speculation.
Jim Donner, an employee of the company which serviced the fire extinguishers, testified that it was his customary practice to service soda acid fire extinguishers in his truck and not to remove them from apartment complexes. However, on the day before the fire, for the first time on orders of his boss, he had removed the fire extinguishers from the building and took them to his shop for servicing.
There was no direct evidence nor any expert testimony introduced by plaintiff concerning the specific cause of the fire.
We shall first consider the issues on appeal pertaining to defendants Montgomery Ward and Northern Electric.
Plaintiff consolidates his arguments as to his points one and two, both of which go to the applicability of the doctrine of res ipsa loquitur and breach of implied warranty. It seems that plaintiff takes the position that since he is relying upon the doctrine of res ipsa loquitur and an alleged breach of implied warranty he need only prove generally the circumstances of his loss, plead one or both of the two theories and the burden of proving causation will be waived or at least shifted to defendants. In other words, the plaintiff is asking the court to establish by inference that the blanket was the cause of the fire.
The trial court relied upon lack of evidence as to causation in sustaining the motions for directed verdict. As to res ipsa loquitur and implied warranty the court reasoned as follows:
“I’m taking up first the motions as they apply to Montgomery Ward and Northern Electric, and the reliance on the doctrine of res ipsa loquitur. I think it has to be established first what the cause was before the doctrine applies. And I think again to submit this to the jury would be to require the jury to speculate as to what caused the fire and then to apply the doctrine of res ipsa loquitur to that causation.
“And I don’t think it can be said that it is an established fact that the fire was caused in the blanket.
“On the warranty feature, of course, we are talking about an implied warranty. There is no evidence of any express warranty. I’m unable to find any evidence upon which — any evidence which would support a finding by the jury that either of the defendants in question breached the implied warranty.
“There again you would have to premise the fire as having been caused by the blanket, and I can’t find any evidence at all concerning a faulty construction of the blanket or failure to inspect and test. I think to submit that issue to the jury would be, in effect, to direct the jury to make the defendants insurers. And I don’t believe that is the law of this state.”
We believe the reasoning of the trial court accords with the decisions of this court and, under the evidence produced, its ruling is correct. There is no evidence of a defect, such as a short or defective insulation, in the blanket or in the control unit. Plaintiff recovered the remains of the blanket control unit wiring leading into it and the wall outlet and wiring. There is no showing whether examination by an expert might have revealed any evidence indicating causation. In other words, a conclusion that the blanket caused the fire rather than an overloaded or defective wall socket, a lighted cigarette, or any other cause must rest upon an assumption.
In many of our cases we have pointed out that the doctrine of res ipsa loquitur is a rule of evidence that permits an inference that the known act or instrument which produced the injury was a negligent act or a defective instrument, but it does not permit a further inference as to what act or instrument produced the injury. It cannot be assumed that absent negligence on someone’s part the fire in plaintiff’s apartment would not have occurred; and even if such an assumption could be made plaintiff still has the burden of showing that negligence could reasonably be attributed to defendants. Ordinarily, the doctrine applies only in those cases where the instrumentality or thing causing the injury is under the exclusive control of defendant or defendants at the time of the injury and the surrounding circumstances are such as to leave no reasonable con elusion to be drawn therefrom other than that the occurrence in question happened because of the negligence of defendants. We have held that inherent in the doctrine of res ipsa loquitur there are three essential elements — (1) The instrument causing the injury must be in the exclusive control of the defendants; (2) the happening must be of such a nature as ordinarily does not occur in the absence of negligence; and (3) the happening must not have been due to the fault or contributory negligence of the plaintiff. (Bias v. Montgomery Elevator Co., 216 Kan. 341, 532 P. 2d 1053; Vieyra v. Engineering Investment Co., Inc., 205 Kan. 775, 473 P. 2d 44; and Chandler v. Anchor Serum Co., 198 Kan. 571, 426 P. 2d 82.) Viewing plaintiffs evidence in the most favorable light neither of the first two prerequisites is satisfied.
Likewise, plaintiff’s evidence falls short of establishing a submissible case under the theory of breach of implied warranty. Fundamental to recovery under this theory is a showing that (1) plaintiff was injured by the product; (2) that injury was not due to his negligence; (3) that the product was defective; and (4) that the defect was present when the product left defendant’s control. Mere proof of an accident or injury is not enough. (Jacobson v. Ford Motor Co., 199 Kan. 64, 427 P. 2d 621; and Prosser [4th Ed.], Law of Torts, § 103, pp. 671-672.) In Butterfield v. Pepsi-Cola Bottling Co., 210 Kan. 123, 499 P. 2d 539, an action involving injuries resulting from a bursting soda water bottle, we stated that although a claim for relief for breach of implied warranty may be proved by circumstantial evidence it does not follow that merely the fact that a bottle broke, while in the hands of a user, constitutes of itself a breach of implied warranty on the part of the bottle distributor. (See, also, Tilley v. International Harvester Co., 208 Kan. 75, 490 P. 2d 392.) In Jacobson v. Ford Motor Co., supra, wherein plaintiff based his action upon res ipsa loquitur and breach of express and implied warranties, we had this to say:
“Procedural difficulties aside, on any theory of liability a prerequisite to recovery against a manufacturer is that there be a defect in the product or instrumentality. Regardless of the ground of liability asserted, before a plaintiff can recover damages from a manufacturer, he must show the product was defective or harmful. This is essential. If the plaintiff cannot do so he has no cause of action on any theory. . . .” (p. 67.)
Accepting as true all of the facts which plaintiff’s evidence tends to prove, he has failed to make out a submissible case on either res ipsa loquitur or breach of implied warranty.
We turn next to plaintiffs appeal from the directed verdict in favor of defendant Peterson. In sustaining Peterson s motion for a directed verdict, the trial court ruled:
“There, of course, is no evidence at all of any negligence independent of the doctrine of res ipsa loquitur and implied warranty so there is nothing before the court on that as to the defendant Peterson. There being no duty to maintain extinguishers in the premises I can’t see any basis for permitting the jury to speculate as to whether there was any duty not to take them out for the purpose of servicing them. And I am assuming for this purpose that the defendant did permit them to be taken out, because there is evidence from which it can be inferred that the defendant knew that the extinguishers were being taken out for servicing.
“There being no duty to have them there, I cannot see how it could be found that taking them out for servicing was a breach of duty.
“It’s unfortunate that the fire occurred on the very date that the extinguishers were taken out, but you have a further question there. I think the plaintiff’s own evidence is that they wouldn’t have done any good if they had been there.”
Plaintiff concedes there is no common law duty imposed upon a landlord to provide fire extinguishers. (49 Am. Jur. 2d, Landlord and Tenant, § 891, p. 867.) It is plaintiff’s argument that once Peterson provided fire extinguishers a duty to maintain them arose on the basis of an implied contract and that breach thereof renders Peterson liable in tort for personal injuries and damage. Plaintiff cites Williams v. Davis, 188 Kan. 385, 362 P. 2d 641. The liability of a landlord under a covenant to repair set out in Williams (American Law Institute Restatement of the Law of Torts, § 357) has since been recognized in Richardson v. Weckworth, 212 Kan. 84, 509 P. 2d 1113; and Transport Insurance Co. v. Huston, 207 Kan. 759, 486 P. 2d 1344. For several reasons it is unnecessary to determine here whether the covenant to repair rule may be stretched to encompass the theory of plaintiff.
In the first place Peterson strenuously argues plaintiff was not entitled to pursue the covenant to repair theory at trial or on appeal since it was neither alleged in his petition nor raised at pretrial. Plaintiff concedes that initially he predicated his action against Peterson on a statutory duty to provide fire extinguishers. Apparently, plaintiff did not discover that the statute upon which he relied (K. S. A. 36-118, repealed by Laws of 1972, Ch. 157, § 20) had been repealed and that the City of Shawnee had not adopted an ordinance concerning the matter as contemplated by regulations (K. A. R. 22-12-1 and 22-12-2) of the State Fire Marshal promulgated pursuant to K. S. A. 1974 Supp. 31-133, a successor statute to K. S. A. 36-118, [repealed Laws of 1972]. The pretrial order sets out plaintiffs claim against Peterson in these words:
. . [Algainst defendant, J. A. Peterson Realty Company, on the theory of negligence for failure to provide fire extinguisher equipment.”
Peterson points out that plaintiff made no effort to amend his petition or the pretrial order, but simply shifted his theory at trial to breach of an implied covenant to maintain fire extinguishers having once provided them. Peterson points out there is a real distinction between failure to provide and failure to maintain. Peterson cites Stewart v. Bank, 121 W. Va. 181, 2 S. E. 2d 274, 122 A. L. R. 161, wherein the Supreme Court of West Virginia set aside a plaintiff’s verdict because plaintiff had pled defendant was guilty of negligence in failing to equip with fire extinguishers, but at trial, as did plaintiff in the case at bar, shifted to a theory of “legal duty to maintain” under which the verdict was obtained. On the point at issue the Stewart case is squarely in point. In reversing the judgment the Virginia court said:
“. . . The duty to maintain such equipment is not required under common law or statute; but when voluntarily installed and held out to tenants as an element of safety, that duty rests upon an entirely different footing, and there is nothing in either the original or amended declaration on which a recovery can be based upon this theory. This is not a technical distinction. A defendant is entitled to know what he will be called upon to meet. . . .” (p. 189.)
The purpose of the pretrial order is to define and clarify the issues; it has the full force and effect of other orders of the court and controls the course of the trial unless subsequently modified. (Beard v. Montgomery Ward & Co., 215 Kan. 343, 524 P. 2d 1159; Baugher v. Hartford Fire Ins. Co., 214 Kan. 891, 522 P. 2d 401; and Tillotson v. Abbott, 205 Kan. 706, 472 P. 2d 240.)
Moreover, even if plaintiff’s pleading deficiency is overlooked, we are unable to find specific evidence to the effect that removing the extinguishers for a part of a day for servicing amounted to a breach of duty. Furthermore, under the evidence presented the portion of damages suffered by plaintiff, which might be attributed to the absence of the fire extinguishers would be purely a matter of speculation by the jury.
Plaintiff complains of the trial court’s ruling excluding certain testimony of Jim Donner. However, since plaintiff failed to make an offer of proof in this regard, no reviewable issue is presented. Under the provisions of K. S. A. 60-405, no judgment will be set aside by reason of the erroneous exclusion of evidence unless the proponent of the evidence makes known the substance thereof. (Salem v. Salem, 214 Kan. 828, 522 P. 2d 336; and Davis v. Best Cabs, Inc., 203 Kan. 930, 457 P. 2d 516.)
In view of our disposition of the appeal other points raised by plaintiff need not be discussed.
The judgment is affirmed.
Fontron and Fromme, JJ., not participating. | [
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Per Curiam.
Affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an original mandamus proceeding brought by the state of Kansas on relation of the attorney-general against the board of county commissioners of Jefferson county as a board and as individual members thereof, the county clerk and the township trustee of Kaw township of Jefferson county, praying that the defendant county clerk be required to correct his record to show the action of the county board on January 8, 1929, and that the board and township trustee be required to proceed with the construction and completion of a certain highway known as the Mike Baker road.
An alternative writ referring to the allegations of the motion was issued, and the defendants have all filed motions to quash the writ. The motion of the state included the following allegation:
“At the session of the county commissioners next ensuing, said board found that there were no legal objections appearing against the road, that it was satisfied that said road would be a public utility and said board ordered that the trustee of Kaw township be directed to cause the road to be opened for public travel. In this same action, the board of county commissioners ordered that the road survey and plat be recorded in the office of the county surveyor, all of which was done, as shown by the records of the county cleric and the county surveyor of Jefferson county, Kansas.”
It also contains the following minutes kept by the county clerk on the journal of the board of county commissioners for January 8, 1929, and January 12, 1929:
“January 8, 1929. A hearing on the Mike Baker road as described on page 164, par. 7, was had; residents of Kaw township appeared with two members of the township board, who express their willingness to open the road if allowed; a restraining order had been served on the county board, enjoining them from locating the road as set forth in the petition.
“On advice of Attorney Stone the road was allowed by vote of Commissioners Haynes and McCoy over dissenting vote of Com. Amos H. Leech. It was further ordered that if the county attorney concurred in the action of the board as to the legality of allowing said road that warrants should be drawn to pay for land taken and damages as allowed; provided the county attorney concurred in the action of the board in allowing the road located on line as revised by the county engineer.”
“January 12, 1929. The county attorney reported that he did not concur in the action of the board in allowing the Mike Baker road; thereupon, the action of the board was ordered set aside.”
The motion further alleged that these entries on the journal do not contain true statements of the action of the board, that the fact was that the board in its action on January 8, 1929, actually determined to wait the approval of the county attorney only upon the matter of the warrants issued and not upon the matter of allowing or disallowing the road, the board having already approved the location, laying out and construction of the road.
Plaintiff relies strongly upon its allegation, above quoted, as to the board being satisfied the road would be a public utility and having made the order that the survey be recorded and the road opened for public travel, and also upon that part of R. S. 68-106 under which the petition for the road was being considered, viz.:
. . and at such session next ensuing the said commissioners shall, if they conclude that said road should be established, altered, or vacated, and no legal objections appear against the same, and they are satisfied that such road will be of public utility, enter an order upon their records that said road, survey and plat be recorded in the office of the county surveyor and from thenceforth said road shall be considered a public highway . . .”
This position is forceful and might be conclusive on a motion to quash if the entries made on the journal do not confuse and disturb the theory of a mistake. The statute above quoted requires that the order be entered upon the record. So we have here two propositions: first, whether the entry of January 8 is such an order, the condition therein applying only to the issuance of warrants; and, second, whether the board might properly change the order at the same session, four days later, regardless of the provision above quoted from the statute.
These would appear to be the features of the case considering the motions to quash as demurrers to the allegations of the alternative writ and the motion therefor, but the parties hereto have stipulated as to the existence of certain other facts to be considered on the motions to quash in connection with the allegations of the writ and motion. Among these facts so stipulated are the filing of the certificate of the viewers on December 20, 1928, and the action of the board thereon that day, as shown by the journal, as follows:
“A view of the Mike Baker road, described on page 164, par. 7, this journal, was made and report on same was that the road be allowed as it would be of public utility; final hearing on same to be January 8, 1929.”
Next, a full statement as to the procuring of an injunction order on January 5, 1929, by Wilson, one of the landowners, against the board'restraining it from laying out or opening a road on his land lying west of the north-and-south center section line, on both sides of which the road was surveyed because in 1906 a drainage ditch had been located and established there. This is shown to account for the conditional provision in the journal entry of January 8 with reference to the concurrence of the county attorney and road being located on a line as revised by the county engineer. In the face of this injunction it was advised to move the road over twenty-five feet to the east and thus make the north-and-south center line of the section the west line of the road instead of its center line, thereby avoiding the use of any of Wilson’s land or interfering with the old drainage ditch.
Also, the following order signed by the chairman and county clerk and correction signed by the county engineer:
“Order of Board of County Commissioners
on favorable report of viewers.
“The above report of viewers having been read before the board of county commissioners, and said report being favorable, and no legal objections appearing against the same, and the board, except commissioner Leech, not voting, being satisfied that such road will be of public utility, do hereby order that said road survey and plat be recorded as recommended by said report. It is also ordered that the trustee of the aforesaid township be directed to cause the road to be opened for public travel.
“It is ordered that the road be located as follows: 25 feet east from point of point of beginning; thence north and at a distance of 25 feet; from the north-south line through the center of section 17, to a point 100 feet north of the east-west line through the center of section 17; thence (W. 25 ft. thence) north to point of ending.
“Done this 8th day of Jan., 1929. Arthur Haynes, Chairman.
“Attest: Thos. A. Hatfield, County Clerk.
“This insertion in writing (W. 25 ft. thence) on description is made to correct a clerical error in the road as ordered laid out by the board.
“R. C. Ham, Co. Sur.”
And a protest and order of adjourning immediately following the entry of the concurrence of the county attorney in the journal as follows:
“Mrs. Emma Epler, in behalf of G. W. Peck, made protest against the location of the Mike Baker road, if allowed, on said G. W. Peck’s land on the east side of the proposed route.
“The board adjourned to meet on January 12 to take up matters that might properly come before them at this time.”
Also, a statement in a supplemental stipulation showing that Wilson dismissed his injunction suit in March, 1929, and that before the bringing of this action the application by the original road petitioners to the county board to correct its journal entry to show the road to have been allowed or moved twenty-five feet to the east was overruled by the board upon disputed evidence.
If the question was upon a positive allegation of the road having been allowed and ordered opened and a plain mistake in the record thereof on the journal, the alternative writ would certainly state facts sufficient to constitute a cause of action as against a motion to quash. It may be conceded that the most natural construction of the conditional provision to the order in the journal affects only the issuance of warrants. The law requires the approval of the county attorney for the issuance of warrants, but does not require it for the locating and establishing of a road. Other things as well as the language of the entry deserve consideration as to the allegation of a mistake. An injunction was pending; the matter was postponed a day. Special advice was procured and the order was made after the advice was given. The board was divided in opinion and vote. A protest was entered of record against moving the road over twenty-five feet, and a definite adjournment was taken and entered by the board to January 12 “to take up matters that might properly come before them at this time.” Four days later, after hearing from the county attorney and learning of his nonconcurrence, the board set aside its order of January 8 not as to the issuance of warrants but as to the whole order.
This action of the board four days later helps to show the understanding of the members of the board as to this conditional provision being limited to the issuance of the warrants. It unmistakably shows that they were then attempting to undo what they thought they had done conditionally. But because of the natural construction of the language being otherwise, and because of the liberal rule in favor of the full import of pleadings when subjected to a demurrer, we hesitate to conclude that no mistake in the making of the record has been sufficiently alleged.
It is urged by the defendants that even if the action of the board on January 8 could be regarded as allowing and locating the road, that action was annulled and set aside by the action of the board on January 12 and therefore there exists no road which they could be required by an order of court to open and establish. Plaintiff contends that immediately after the action of the board on January 8 the road was, under the provision of the statute, R. S. 68-106, considered a public highway, and from and after that date the board lost all jurisdiction concerning the matter and could not set aside that action, reconsider the matter or vacate the road without a new petition requesting its vacation, citing the following cases showing the want of jurisdiction without a sufficient petition for either establishing or vacating a highway: Comm’rs of Wabaunsee Co. v. Muhlenbacker, 18 Kan. 129; Oliphant v. Comm’rs of Atchison Co., 18 Kan. 386; Troy v. Comm’rs of Doniphan Co., 32 Kan. 507, 4 Pac. 1009; Crawford v. Comm’rs of Elk Co., 32 Kan. 555, 4 Pac. 1011; and State v. Horn, 34 Kan. 556, 9 Pac. 208. These authorities are exactly in point if the action of the board four days later is to be considered an action under the highway statute to vacate an existing road. Reference is made to the following decision in the case of Gehlenberg v. Saline County, 100 Kan. 487, 165 Pac. 286:
“Under the provisions of section 6, chapter 108, Laws of 1874, providing that when the viewers’ report, the survey and the plat of a road have been recorded pursuant to order of the board of county commissioners, ‘from thenceforth said road shall be considered a public highway,’ the record indicated is prima facie evidence that the road was legally established, and a landowner attacldng collaterally the existence of the road has the burden of establishing the nonexistence of jurisdictional facts.” (Syl. IT 4.)
Plaintiff also cites the case of Mills v. Comm’rs of Neosho Co., 50 Kan. 635, 32 Pac. 361, and Stock Farm Co. v. Pottawatomie County, 116 Kan. 315, 226 Pac. 781, to show that jurisdiction is lost when the board at a subsequent meeting attempted as in this case to do something further or different from what had already been done. None of these cases show an adjournment of the board, as the case at bar does. In the Mills case the board on July 5, 1888, allowed the road and ordered it opened. At the April, 1889, session, nine months later, the board reconsidered its action and it was held that—
“Where the board of county commissioners has confirmed the report of viewers in favor of a public road, and has ordered it opened, it cannot, at a subsequent session of that body, without any petition therefor, or any notice thereof, reconsider its action ordering the road opened and vacate said road.” (Mills v. Comm’rs of Neosho Co., supra, syl. If 2.)
In that case it was conceded that the board had jurisdiction during the session of the board at which original action had been taken by it. In the Pottawatomie county case the road had been established on January 7, 1909, and at the session of the board on April 9 following an attempt was made to remove the road forty rods to one side, and it was held to be ineffectual as to closing or vacating the original road. Boards of county commissioners have sessions the same as courts have terms. Such regular sessions, unless under special provision, are monthly, beginning on the first Monday in each month (R. S. 19-206), and as courts they may be adjourned from time to time so that the proceedings had on an adjourned day have the same force and validity as if done at the regular meeting.
“In the absence of any express provision to the contrary, when a county board is once lawfully convened, either in regular or special session, it may adjourn or take a recess to a subsequent day or from day to day until the business before it is finished. ... A meeting held in pursuance to a valid order of adjournment is but a continuation of the regular session, and ordinarily any business may be transacted at it which might have been transacted at the meeting of which it is a continuation.” (15 C. J. 462, 463.)
The very order of the board now under consideration, as it appears on the journal, is followed with the order adjourning the board to meet on January 12 “to take up matters that might properly come before them at this time.” This right of adjournment, as applied to boards of county commissioners in road cases, was confirmed in an early decision in this state.
“In proceeding to open and lay out a public road, after the report of the viewers has been filed in the county clerk’s office, the county commissioners are not compelled to take final action thereon at their first meeting, but may postpone such action until some subsequent meeting, without losing jurisdiction.” (Masters v. M’Holland, 12 Kan. 17, syl. ¶ 1.)
In the case of Higgins v. Curtis, 39 Kan. 283, 18 Pac. 207, it appears the board on July 5 rejected the report of the viewers. On July 6 the board reconsidered the matter, and on July 23 the road was allowed and located, and it was held—
“Where a board of county commissioners rejects a report of viewers appointed by it to lay out and locate a public road, such board may at the same session reconsider its action by which said report was rejected, and may continue further action thereon to a future day of that session, without thereby losing jurisdiction.” (Syl. ¶ 1. See, also, Smith v. Eureka Bank, 24 Kan. 528; Molyneux v. Grimes, 78 Kan. 830, 98 Pac. 278; Hauserman v. Clay County, 89 Kan. 555, 132 Pac. 212; and Fleming v. Ellsworth County Comm’rs, 119 Kan. 598, 240 Pac. 591.)
We think there is no question as to the board retaining jurisdiction of the road .case submitted to it after its action thereon on January 8 when it definitely adjourned to January 12, and that it had full and complete jurisdiction at that time and in the same session to set aside its order of four days earlier. The special provision in the statute as to its being considered a public highway after the first action thereon, is similar to.the lien of a judgment relating back to the first day of the term at which it was rendered, and yet after such lien thus attaches the court may set aside the judgment at any time before the close of the term.
Many other points both pro and con are presented in this case and are ably briefed, but with the conclusion reached above as to the jurisdiction of the board to set aside whatever was done four days earlier in the same session, they cannot change or affect the result.
It is further contended that the reaching of a determination that the writ should not be allowed will not dispose of the case nor set. the writ aside. This proposition may be in connection with some contemplated amendment of which we are not at this time advised. The motions to quash the writ are sustained and the writ is denied.
Smith, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This is an original action in quo wiarranto in which the plaintiffs challenge the authority of the public service commission to exercise certain powers conferred upon it by chapter 223 of the Session Laws o.f 1929.
As first instituted the six major railway companies doing business in Kansas appeared as plaintiffs, but when their authority to maintain the action was informally questioned from the bench, the attorney-general on his oral application was given leave to enter the state ex relatione as party plaintiff so that legal questions touching the validity of the statute could be decided in orderly fashion for the benefit of everybody concerned.
It will be necessary to set out the statute here:
“An Act relating to railroad companies and other common carriers and providing for the issuing of certificates by the public service commission covering unjust, unreasonable, discriminatory and/or unduly preferential rates and charges theretofore exacted.
“Be it enacted by the Legislature of the State of Kansas:
“Section 1. No railroad company or other common carrier shall charge, demand or receive from any person, company or corporation an unreasonable, unfair, unjust or unjustly discriminatory or unduly preferential rate or charge for the transportation of property, or for hauling or storing of freight, or for use of its cars, or for any service afforded by it in the transaction of its business as a railroad company or comtmon carrier; and upon complaint in writing made to the public service commission that an unfair, unjust, unreasonable or unjustly discriminatory or unduly preferential rate or charge has been exacted, such commission shall investigate said complaint, and if sustained, shall make a certificate under its seal setting forth what is, and what would have been, a reasonable and just rate or charge for the service rendered, which shall be prima facie evidence of the matter therein stated.
“Sec. 2. It shall be lawful for any railroad company or other common carrier to refund to any person, company or corporation any unreasonable, unfair, unjust or unjustly discriminatory or unduly preferential rate or charge which it has exacted, received or collected from any shipper, in accordance with the certificate referred to in section 1 hereof.
“Sec. 3. Complaints seeking certificates as described in section 1 hereof shall be filed with the public service commission not more than three years after the payment of the rates or charges complained of therein.
“Sec. 4. The provisions of this act shall extend to and include rates or charges exacted by any railroad or other common carrier within six years prior to the enactment hereof: Provided, Complaints seeking certificates as described in section 1 hereof are filed with the public service commission not more than two years after this act takes effect: And provided further, That complaints or other actions relating to the matters embraced in section 1 hereof which have been abated or dismissed, due solely to the omission of chapter 124, section 11, of the Laws of Kansas of 1883, from the Revised Statutes of Kansas of 1923, shall be reinstated upon appropriate motion therefor filed within one year from the time this act takes effect.
“Sec. 5. Any proceeding in court relating to the matters embraced in this act shall be brought not more than one year after the issuance of a certificate by the public service commission.
“Sec. 6. If any section, clause or phrase of this act is for any reason held to be unconstitutional, such decision shall not affect the remaining portions of this act. ' The legislature hereby declares that it passes the act, each section, sentence, clause and phrase thereof irrespective of the fact that any one or more of the same shall be declared unconstitutional.
“Sec. 7. All acts and parts of acts in conflict herewith are hereby repealed.
“Sec. 8. This act shall take effect and be in force from and after its approval and publication in the official state paper.
“Approved March 16, 1929. '
“Published in official state paper March 20, 1929.” (Laws 1929, ch. 223, R. S. 1931 Supp. 66-154a et seq.)
In plaintiffs’ petition it is alleged that pursuant to this statute the defendant com(mission is exercising jurisdiction of complaints in which certificates of reparation are sought on freight rates charged on intrastate shipments on bills of lading issued after the act of 1929 took effect, upon which the rates exacted were those specified in tariffs filed with the public service commission in conformity with the provisions of R. S. 66-117 and which had become effective by authority and consent of the commission without formal hearing.
It is also alleged that the commission is exercising jurisdiction of complaints in which reparation certificates are sought on intrastate shipments on bills of lading issued after the act of 1929 took effect w*here the rates collected were those specified in tariffs which the commission, upon hearing and investigation under the provisions of R. S. 66-113, had found to be reasonable and had ordered to be put into effect.
Another questioned power of the commission is that of entertaining complaints for reparation certificates on any and all intrastate shipments during a period of six years prior to the enactment of the statute of 1929 where the freight charges were those exacted in accordance with the tariffs filed with the commission, some of which were made effective with its consent and authority but without a hearing, and others where the tariffs were filed and approved by the commission upon hearing and investigation.
The petition alleges that the statute under which the defendant assumes to entertain the foregoing complaints for reparation certificates is unconstitutional and void in all its parts for the following reasons, to wit:
(1) That the statute vests judicial power in the commission in violation of article 3, section 1 of the state constitution, which vests the judicial powers of the state in judicial tribunals and not elsewhere.
(2) That the statute confers powers upon the commission the exercise of which will impair the contract obligations between the shipper and the carrier in violation of article 1, section 10 of the United States constitution.
(3) That the statute confers powers the exercise of which will violate the rights of the carriers protected by the fourteenth amendment, and particularly that the retroactive features of the statute will deprive the railroads of their property without due process of law and deny them the equal protection of the law.
The petition also alleged that the carriers have raised these questions of law in cases pending before the commission where reparation certificates are demanded under the colorable authority of the statute of 1929, and that the constitutional objections to the statute have been overruled; and that the carriers are now confronted with the necessity of incurring burdensome expense in preparation for the trial of the aforesaid complaints; and that such ruling of the commission is bound to precipitate a multiplicity of suits and cause the expenditure of large sums of money by the carriers and commission alike, and also by complainants seeking reparation certificates under the statute.
The relief sought is an authoritative adjudication touching the constitutionality of the statute, and that the commission be ousted from the exercise of any and all powers assumed by it under color of its authority.
1. The first objection to the statute is that it confers judicial power upon the public service commission, which is a tribunal created by the legislature with authority to exercise certain legislative functions which the legislature finds it impracticable to exercise itself — rate making, and supervision of the affairs of public utility services in this state. It is urged that judicial powers can only be exercised by the courts of the state created for that purpose and that legislative and judicial powers cannot be exercised by one tribunal under our constitution. [In re Sims, 54 Kan. 1, 11, 37 Pac. 135; State v. Johnson, 61 Kan. 803, 60 Pac. 1068.)
As generally understood a court is a judicial tribunal which has power to hear and decide justiciable controversies and to give binding judgments thereon. • The powers conferred on the commission by the statute under scrutiny do not extend so far. By its terms the commission is authorized to investigate complaints concerning unjust rates which the carriers have exacted, and to make a certificate as to what is or would have been a just rate; but the commission is not authorized to make binding adjudications of right between carrier and complainant. The recitals of the certificate are prima fade evidence if or when demand for reparation becomes the subject of controversy before a court of competent jurisdiction. It is settled law that the legislature may prescribe what matters shall have the force of prima fade evidence. (Jones v. Hickey, 80 Kan. 109, 102 Pac. 237; Reitler v. Harris, 80 Kan. 148, 102 Pac. 249.) In State v, Marshall, 95 Kan. 628, 148 Pac. 675, it was said:
“That the legislature may change the rules of evidence, even to affect pending cases, is settled law. (Jones v. Hickey, 80 Kan. 109, 102 Pac. 247; Reitler v. Harris, 80 Kan. 148, 102 Pac. 249; Petersilie v. McLachlin, 80 Kan. 176, 178, 180, 101 Pac. 1014.) Nor does such a statute offend against due process of law. (Hopt v. Utah, 110 U. S. 574, 587; Reitler v. Harris, 223 U. S. 437, 442.)” (p. 631.)
The earlier statute referred to in section 4 of the act under consideration (Laws 1883, ch. 124, § 11) was carried into succeeding compilations until repealed in 1898 (Laws 1898, ch. 29), as part of the general scheme to regulate railroads by a court of visitation (Laws 1898, ch. 28). It was reenacted, slightly amended, in 1901, as a part of the legislative purpose to recreate the board of railroad commissioners and define its powers (Laws 1901, ch. 286, § 21; Gen. Stat. 1915, § 8419) and remained in effect until omitted from the Revised Statutes of 1923, and was almost verbatim with section 2 of the act of 1929. The only substantial change is the inclusion of the words “and what would have been” in section 1 of the new statute set out above, which we have italicized for convenience. While section 11 of the statute of 1883 apparently never provoked any litigation which found its way into this court, the reports of the board of railroad commissioners and its official successors are laden with cases where reparation claims were heard, allowed, adjusted, denied or dismissed, according to their merits. Instances, which could be indefinitely multiplied, appear in the First Annual Report, Board of Railroad Commissioners (1883), ,pp. 210, 229; Sixteenth Annual Report, ditto (1898), pp. 194, 195; First Report, Public Utilities Commission (1911-1912), p. 58; Fourth Biennial Report, ditto (1917-1918), p. 50; First Annual Report, Court of Industrial Relations (1920), pp. 83, 88, 126, 135.
Even the elision of the reparation section of the act of 1883 from the Revised Statutes of 1923 did not terminate the commission’s practice of granting orders of reparation. In the Ninth Biennial Report of the Public Service Commission (July 1, 1926, to June 30, 1928), page 835, we read:
“Docket No. 8605: The Midland Valley Bid. Co.
Application for reparation on crude oil from Aumann Sput to Arkansas City, Kan.
Granted August 24, 1926.”
We have gone into the foregoing at some length to verify the accuracy of defendant’s contention that a reparation statute substantially like section 1 of the act of 1929 under consideration, for forty years was administered by the tribunal charged with that duty, acquiesced in by the carriers, and that the enactment of the later public utilities act of 1911 was not construed to repeal or supersede it in its entirety. And while the courts were never called upon to construe the statute of 1883 or the possible bearing of the utilities act of 1911 thereon, the operative construction given to the act of 1883 by the successive official boards charged with administering it over a long period of years cannot be ignored by the courts. (Harrison v. Benefit Society, 61 Kan. 134, 59 Pac. 266; Bank v. Reilly, 97 Kan. 817, 823, 156 Pac. 747; Songer v. Bank Commissioner, 114 Kan. 900, 901, 220 Pac. 1060; Cavlovic v. Baker et al., 118 Kan. 412, 415, 416, 234 Pac. 1009; State, ex rel., v. State Highway Comm., 132 Kan. 327, 337, 295 Pac. 986.) In Marinette, T. & W. R. Co. v. Railroad Comm., 195 Wis. 462, where the power of the railroad commission of Wisconsin to grant a refund of freight charges established by the commission was under consideration, it was held:
“The practical construction of a statute long followed by the railroad commission, with the apparent acquiescence of the legislature as well as those affected thereby, is entitled to great weight.” (Syl. HI.)
And so far as the act of 1929 is substantially the same as that of 1883 it seems superfluous to observe that what was a valid part of the statutory fabric for the regulation and government of public carriers in this state for forty years until repealed in 1923 could surely be restored to that fabric by legislative enactment in 1929. Mayhap the utilities act of 1911 modified or abridged to some extent the scope of the act of 1883. As a later expression of the legislative will it would have that effect if the two could not be harmonized. But by the same token the act of 1929, with which we have now to deal, became in turn a later expression of the legislative will than the utilities act of 1911, and to that extent, if any — that the acts of 1911 and 1929 are in conflict — the older statute would have to yield to the more recent. In In re Moseley’s Estate, 100 Kan. 495, 164 Pac. 1073, it was held that older statutes must be read in the light of later enactments, and are subordinated thereto and must be harmonized therewith; otherwise the older statutes must give way to the later enactments and by implication are necessarily modified, superseded or repealed thereby. To like effect were: Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 Pac. 1009; Great Western Portland Cement Co. v. Public Service Comm., 121 Kan. 531, 247 Pac. 881; City of Wichita v. Wichita Gas Co., 126 Kan. 764, 271 Pac. 270.
Whatever infirmities we may discover in the statute of 1929 as we proceed, it does not, in our opinion, confer judicial power on the public service commission, and the statute is free from constitutional objection on that point. In other jurisdictions the same constitutional objection to statutes giving similar powers to regulatory commissions has been uniformly overcome. (L. & N. R. R. Co. v. Greenbrier Dist. Co., 170 Ky. 775; Turner C. Co. v. C., M. & St. P. Ry. Co., 36 S. D. 310; State, ex rel. Tacoma, Etc., R. Co. v. Pub. Serv. Com., 112 Wash. 629; Chicago & N. W. R. Co. v. Railroad Commission, 156 Wis. 47, 53; Chicago, M. & St. P. R. Co. v. Railroad Com., 194 Wis. 24.)
2. Touching defendant’s next objection to the act, that it impairs the obligation of contracts between shipper and carrier, we shall have something to say below, but for the nonce we must remark that existing statutes are integral parts of every valid contract just as much as if they were written at length into the instruments which constitute the contracts. When the statute of 1929 became effective, March 20, 1929, in contemplation of law it became a part of every shipper’s contract thereafter made which dealt exclusively with intrastate transportation by public carriers. And so far as the statute of 1929 authorizes the payment of refunds on reparation certificates issued on account of unreasonable, unfair, unjust, or discriminatory or'preferential charges exacted for transportation services after March 20, 1929, a majority of this court holds that the act is not subject to the constitutional objections urged against it. This conclusion applies to sections 2 and 5 of the act, and so far as it looks only to the future it applies to section 3.
3. A much graver question arises, however, when we come to consider section 4, the purport of which is to bestow upon shippers a right to reparation certificates for any and all intrastate shipments of property by railroads and other common carriers for a period of six years prior to the enactment of the statute of 1929, the apparent and avowed purpose of the section being to create a prima facie basis for a right of action through the issuance of such certificates for the period from December 27, 1923, when the act of 1883 was omitted from the Revised Statutes of 1923 until restored in substance by section 1 of the act of 1929. It is suggested by defendant that such retroactive legislation is justified where it merely restores a remedy for an existing liability. They reason in this fashion: It was the continuing duty of the carriers never to charge more than just and equitable rates for transportation; and every unjust rate and charge was illegal during the six years’ interval that the reparation statute was off the books, and that its reenactment merely restored a remedy for any and every breach of such continuing duty. Remedies, however, may be changed; they may be dropped and something else tried; and they may be restored. While the reparation provision was off the books, the other remedies for the exaction of unfair rates remained — by complaint to the commission to obtain just rates. This may not have been so effective a remedy as that furnished by the reparation statute of 1883, but it cannot be said that the legislature had no power to experiment with the efficacy of the utilities act of 1911 without the support of the reparation statute of 1883. While the utilities act of 1911 stood unaffected by whatever modifying influence the reparation statute of 1883 had theretofore exercised upon it, the published rates of the carriers on file with the commission were the only lawful rates which the carriers could charge. Those rates were a part of every contract. To depart from them was a misdemeanor subjecting the carrier to severe penalties. (R. S. 66-177.) If those rates were not charged and collected the carriers had an action to recover the amount of the undercharge. If an overcharge departing from the published rates were exacted the shipper had an action to recover the overcharge. (R. S. 66-130, 66-140, 66-178.)
In Great Western Portland Cement Co. v. Public Service Comm., 121 Kan. 531, 247 Pac. 881, the plaintiff sought by mandamus to compel the public service commission to make a finding that the published rates for the transportation of crude oil were unjust and unreasonable and to find what rates would be just and reasonable. The commission moved to quash. In the opinion the legal effect of dropping the act of 1883 from the Revised Statutes of 1923 was discussed. It was there said:
“The omission of the section in question from the revision amounted to its repeal. It can hardly bé conclusively presumed that the legislature omitted it iipon the theory that it was superfluous, but even in that case the presumption would not avail to preserve its force. A belief on the part of the legislature itself that the omitted statute was covered by remaining provisions, if such were not the fact, could not constrain the courts to so hold.
“A consideration, however, which we regard as clearly controlling, and which does away with the occasion for a fuller discussion of the matters already mentioned, is this: Rates of carriers are now fixed by the tariff sheets on file. A carrier can lawfully charge neither more nor less than the rate so fixed. This condition has existed for many years. The alternative writ of mandamus indicates the time at which the overcharges were made which are the basis of its complaint no more definitely than to say that it was ‘prior to May 3, 1925.’ The presumption is that the charges complained of were in accordance with a then existing rate sheet, there being no allegation to the contrary. That being the case, there is no occasion for the commission to make an inquiry or finding as to whether the rate was reasonable. The following cases, while not involving statutes identical in language with our own, apply the same principle: Steel Corporation v. Pub. Serv. Com., 90 W. Va. 74; E. L. Young Heading Co. v. Payne, 127 Miss. 48; Texas & P. Ry. Co. v. Railroad Comimissioners, 137 La. 1059; Santa Fe G. & C. M. Co. v. A., T. & S. F. Ry. Co., 21 N. M. 496; Utah-Idaho C. Ry. Co. v. Pub. U. Com., 64 Utah, 54; Murphy v. N. Y. C. R. R. Co, 225 N. Y. 548. This view makes it unnecessary to consider whether the omitted section, if it had been retained in the revision, would be constitutional.” (pp. 532, 535.)
The shippers’ contracts which were executed between December 28, 1923, and March 20, 1929, were performed by the carriers’ services and paid for in conformity with the then existing law. Can they now be made the basis of a valid claim for reparation on any theory that the rates exacted during that interval are subject to a post hoc attack under the statute of 1929? The carrier’s right to the published rate at the time it was collected was its property. Can the carrier now be compelled to refund any part of it in view of the constitutional inhibition that no person shall be deprived of his property without due process of law?
In Myer on Vested Rights, section 33, it is said:
“Where a state constitution contains no provision in terms against the passage of retrospective laws, or laws affecting rights and remedies in pending proceedings, the validity of such statutes will depend upon the nature of the objects to which they relate, or the consequences which attend their application in particular cases; and unless they bear injuriously upon some private or vested right, or fall without the domain of general legislative power, or .violate some constitutional interdict, the courts have no authority to pronounce against them. (Citing cases.) If an act, whether general or special, public or private, operates retrospectively to take what is, by existing law, the property of one man, and, without his consent, transfer it to another, it is in violation of the guaranty of due process of law.”
In Cooley’s Constitutional Limitations, 542, it is said:
“Every law that takes away or impairs rights vested, agreeably to existing laws, is retrospective and is generally unjust, and may be oppressive; and there is a good general rule, that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of-the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion or of pardon. They are certainly retrospective, and literally both concerning and after the facts committed. . . . Every law that is to have an operation before the making thereof, has to commence at an antecedent time, or to save time from the statute of limitations, or to excuse acts which were unlawful, and before committed, and the like, is retrospective.”
In 6 R. C. L. 304, 305, it is said:
“A distinction is drawn between ex post facto laws and retrospective laws. Every ex post facto law must necessarily be retrospective, but every retrospective law is not necessarily an ex post facto law; and so retrospective laws, in so far only as they are also ex post facto laws, are prohibited. . . . Retrospective laws are ordinarily deemed to be oppressive, although there are cases in which laws may justly, and for the benefit of the community and also of individuals, relate to a time antecedent to their commencement.
“Retrospective laws relate to civil rights and civil proceedings, and the term retrospective has a meaning analogous to the words ex post facto as applied to criminal and penal statutes. The courts have recognized that without violating a constitutional prohibition as to retrospective legislation the state may make laws for the extenuation or mitigation of offenses, for the enforcement of existing contracts, and, in general, laws curing defects in the remedy, or confirming rights already existing, or adding to the. means of securing and enforcing them. If a retrospective act which is neither an ex post facto law nor one impairing the obligations of a contract should nevertheless operate so as to take away a right of property, it may still be unconstitutional and void, not because it is retrospective, but by reason of its repugnancy to constitutional provisions guaranteeing due process of law, or for some other constitutional reason, as, for example, where it amounts to an improper assumption of judicial power by the legislature.”
While retroactive legislation is not always subject to constitutional infirmity it has always been looked on with disfavor. In 25 R. C. L. 786, 789, it is said;
“Purely retrospective laws involve the exercise of judicial rather than strictly legislative power. Operating not only on future rights and liabilities but also on matters that occurred, or rights and liabilities that existed, before the time of enactment, they pronounce judgment on what was done before their enactment. Every law that takes away or impairs rights that have vested under existing laws is generally unjust and may be oppressive. Hence such laws have always been looked on with disfavor. It is a maxim, which is said to be as ancient as the law itself, that a new law ought to be prospective, not retrospective, in its operation. . . . Especially will a statute be regarded as operating prospectively when it is in derogation of a common-law right, or the effect of giving it retroactive operation will be to destroy a vested right or to render the statute unconstitutional.”
Illustrative of the application of these principles was Richards v. City Lumber Co., 101 Miss. 678, where plaintiff, who was injured in his master’s planing mill,' sued to recover damages for his injury. One of the defenses pleaded was contributory negligence. Plaintiff raised the point that under a recent statute contributory negligence was not a defense to an action like plaintiff’s. Plaintiff’s injury occurred on March 30, 1910; the statute relied on became effective April 16, 1910, and the action for damages was begun on January 12, 1911. The statute declared that in all actions hereafter brought it should be controlling. ■ But the court, to preserve its constitutionality, would not permit it to be given the retroactive effect of depriving defendant of the defense which the law permitted when the cause of action arose, saying—
“The legislature has no power . . . [to] . . . destroy a valid defense to an action existing before the enactment of the statute.” (Syl. ![ 4.)
In Grand Rapids v. Lake Shore, Etc., R. Co., 130 Mich. 238, 97 A. S. R. 473, it was held that a statute attempting to create a personal liability to pay assessments previously made on land, where no liability existed when the assessments were made, was unconstitutional and void.
In Philip v. Heraty, 147 Mich. 473, 118 Am. St. Rep. 554, the action was for the death of a person whom plaintiff claimed to have been her husband. The supreme court held that it was open to defendants to prove that she was not thus related to the deceased. Then the legislature enacted a statute to cover the situation where a person believed himself or herself in good faith to be married might maintain an action for the wrongful death of the ostensible spouse. In the new trial granted, plaintiff successfully invoked that statute in the court below, but the supreme court held that a statute giving a right of action for wrongful death to a person who in good faith sustained the marriage relation to the decedent, when there existed a legal impediment to their marriage, was unconstitutional in so far as it authorized the maintenance of an action for the death of a. man which occurred prior to the enactment of the statute.
In Bucher v. Fitchburg Railroad, 131 Mass. 156, plaintiff brought an action for damages for injuries sustained while traveling on defendant’s freight train. The answer set up that plaintiff was traveling on the Lord’s day in violation of law. The injury was received in August, 1876, at which time the law forbade traveling on Sunday except for necessity or charity. On May 15, 1877, a statute was enacted which provided that the earlier statute prohibiting Sunday traveling should be no defense to an action for damages for injuries sustained through the tort of another. The trial court applied that statute to plaintiff’s cause of action, but the supreme judicial court-ruled otherwise, holding that although the language of the statute was sufficient to embrace cases arising as well before as after its passage, yet it would not be given a retroactive effect, and that the railway could maintain the special defense pleaded.
The foregoing case^ are not closely analogous to the question we have at bar. They merely illustrate the correct judicial attitude in dealing with retrospective legislation. Such precedents as are found in our own reports are no closer. In Comm’rs of Sedgwick Co. v. Bunker, 16 Kan. 498, the action was for mandamus to compel the county clerk of Harvey county to enter upon the tax roll certain taxes on lands which had theretofore been part of Sedgwick county but which became part of Harvey county by detachment under an act of the legislature. The act had expressed the legislative intention that territory detached from one county and incorporated into another should not thereby be released from paying its equitable proportion of the bonded indebtedness of the county to which it had formerly belonged, but statutory machinery was not provided for making that legislative purpose effective. At the next session of the legislature a statute was enacted covering that detail. This court upheld the subsequent statute, saying:
“There is no constitutional provision in this, state against retrospective legislation, where such legislation is designed and intended to afford civil remedies or relief in cases where there is an existing moral obligation to do or perform the act or duty prescribed thereby; and to this extent such legislation is valid.” (Syl. 12.)
This early case is a good example of retrospective legislation against which there is no constitutional objection. It dealt exclusively with a matter of public concern, of governmental affairs. No private interest was invaded. To like effect were: Board of Education v. State, 64 Kan. 6, 67 Pac. 559; School District v. Board of Education, 110 Kan. 613, 204 Pac. 758. But the limits of retrospective legislation were overstepped in Felix v. Wallace County, 62 Kan. 832, 62 Pac. 667, even where only public interest was concerned. Of course, a statute which merely changes the remedy is not unconstitutional, although it is applied retroactively. (Berry v. K. C. Ft. S. & M. Rld. Co., 52 Kan. 759, 34 Pac. 805.)
On the other hand, retrospective legislation which attempts to impair vested rights or deprive a private litigant of a right he had at the time the later statute was enacted cannot be enforced. (Richards v. Comm’rs of Wyandotte Co., 28 Kan. 326, 331; Barrett v. Montgomery County, 109 Kan. 685, 201 Pac. 1098; Serrault v. Price, 125 Kan. 548, 265 Pac. 548; Almquist v. Johnson, 130 Kan. 417, 286 Pac. 217.)
Applying the rule derivable from the foregoing precedents and textbook doctrine, the court is' constrained to hold that the shippers’ contracts which were made and performed during the interval when there was no reparation statute in existence are immune from any belated assault under authority of section 4 of chapter 223 of the Session Laws of 1929, R. S. 1931 Supp. 66-154d, by the federal constitution which forbids any state to pass a law impairing the obligation of contracts (U. S. Const., art. 1, § 10); and to the extent that section 4 is designed in text and terms to create a basis for a cause of action in behalf of a shipper for the exaction of a rate which the carrier was bound to charge under compulsion of statute, breaches of which were punishable by criminal prosecution, it violates the vested rights of the carrier under the provisions of the fourteenth amendment; it likewise offends against those orderly rules and principles for the administration of justice which constitute due process of law; and it is therefore unconstitutional and void.
It should be observed, however, that the subject matter of section 4 is inherently severable without impairing the remainder of the statute, and section 6 expressly provides that a constitutional infirmity in any part of the statute shall not affect the remainder.
4. The foregoing should conclude discussion ip this case, but as the validity of the statute in its futuro aspects is sustained we are urged to give a declarative judgment touching the applicability of the statute on rates filed with and approved by the commission without formal hearing, and on specific rates expressly ordered to be filed after hearing and deliberate determination of the commission. Answering the last question first, it seems clear that when a rate has been the subject of a deliberate inquiry in which the carriers, the shippers and the commission’s own experts have participated, as well as any and all other persons who cared to take a hand in it as the statute provides and permits (R. S. 66-111, 66-112, 66-113), any rate so prescribed by the commission and put into effect by the carriers may be confidently collected and retained by them as their very own, without misgiving that at some future time a further hearing of the commission may be had and more evidence taken and a different conclusion reached, and those rates condemned as unreasonable, and reparation certificates allowed for the difference between the rates which the commission did authorize and the rates which it should have authorized. Such a method of regulating public utilities has none of the earmarks of due process of law nor the simplest notions of justice. Nor would it be worth the while of any shipper to receive such a reparation certificate, for it would not serve as a justiciable basis of recovery. That point, at least, was laid at rest by the recent decision of the supreme court of the United States in Arizona Grocery Co. v. Atchison, T. & S. F. Ry. Co., 284 U. S. 370, 52 S. Ct. 183, where it was held that where the rate exacted by a railway carrier was established by deliberate order of the interstate commerce commission, that tribunal could not thereafter subject the carrier to liability for the payment of reparation by declaring that the rate the commission had previously fixed was in fact unreasonable. Counsel for the defendant direct our attention to the fact that two justices of the supreme court dissented from the judgment, but we do not see how that affects the binding force of the adjudication. Moreover, it is not possible to distinguish in principle a case where the interstate rate exacted is promulgated after a hearing by the federal commission and a case where the intrastate rate is similarly ordered into effect after a hearing by the state commission. Other courts have reached the same conclusion in the consideration of claims for reparation for payments on freight shipments where the charges,. when made, were those prescribed by public authority. (St. Louis-San Francisco Ry. Co. v. State, [Okla. Mar. 1,1932] 8 P. 2d 744, and citations.)
5. Yet another question is submitted for our solution. It relates to the shippers’ right to a reparation certificate in cases where the rates exacted were filed with the commission and perfunctorily approved by it without hearing and determination of their reasonableness, but which rates are afterwards found to have been unjust, unreasonable or otherwise unfair and discriminatory against the shipper. Under the interstate commerce act, as administered by the federal commission, reparation is permitted in such eases. The I. C. C. reports and textbooks on interstate transportation are laden with cases of that sort. (Watkins Shippers and Carriers, 4th ed., 416 et seq.) Statutory proceedings for reparation for the exaction of rates in excess of what is reasonable, as found by some proper state board corresponding to our public service commission, are also recognized as valid under state laws not substantially different from our own. {State, ex rel. Tacoma, Etc., R. Co., v. Pub. Serv. Com., 112 Wash. 629; Turner C. Co. v. C., M. & St. P. Ry. Co., 36 S. D. 310; Katz-Craig Contracting Co. v. Chicago, St. P., M. & O. R. Co., 93 Neb. 674; Marinette T. & W. R. Co. v. Railroad Comm., 195 Wis. 462.) See, also, 4 Am. Dig. Dec. Ed., Carriers, §202; 5 Third Dec. Dig. §§200-202.
The point is made on behalf of the carriers that rate schedules filed with a state commission are on a different footing from those filed with the federal commission in this respect: A schedule of interstate freight rates filed with the interstate commerce commission goes into effect in thirty days unless that commission makes an order suspending them, whereas no schedule of intrastate rates filed with the usual state commission goes into effect unless and until the state tribunal makes an order authorizing them. A majority of this court holds that this procedure is one of form merely, not of substance. The public service commission is not equipped to make a critical analysis of an entire schedule of rates, and its approval is necessarily pro forma, and the rates thus approved will merely stand as legal for the carriers to exact until it develops in actual practice that particular instances reveal them to be oppressive or otherwise unreasonable. Rates so filed and perfunctorily approved are conveniently and aptly designated as permissive. (Brimstone R. R. Co. v. United States, 276 U. S. 104; Eagle Cotton Oil Co. v. Southern Ry. Co., 51 F. 2d 443.) The supreme court of the United States has given this construction to a schedule of Kansas rates for utility services to which our state commission had given mere pro forma consent. (Wichita R. R. v. Pub. Util. Comm., 260 U. S. 48, 56, 57.)
It is true that this court is not bound by the federal supreme court’s interpretation of a Kansas statute, and we declined to follow its construction of one phase of the utilities act in Consolidated Flour Mills Co. v. Kansas Gas and Electric Co., 119 Kan. 47, 237 Pac. 1037; but the great learning of that tribunal is always helpful; and we discern some practical difficulties in giving a schedule of intrastate rates filed with and casually approved by our state commission different significance from that given to a schedule of interstate rates similarly filed with the interstate commerce commission and put into effect by the carriers on mere sufferance of the federal commission. In practice the principal freight tariffs include both local and interstate rates, thousands of them, with rules for making calculations of millions of other rates. These identical tariffs are filed with the state and federal commissions, for the convenience of shippers and carriers alike, and to save further complexity of a subject which is complex enough at its best.
Cases from other jurisdictions are cited which give so much potency to the approval of a schedule of rates by the state commission that there is no practicable room for the allowance of repara tion awards. Typical of these is State, ex rel. Railroad, v. Public Service Commission, 303 Mo. 212. In that case the point was urged by counsel, although not decided by the court, that Missouri had no reparation statute. However, we have such a statute, and a field for it to function must be found in the fabric of our statutory law.
To conclude: This court holds that the statute of 1929 does not vest judicial power in the public service commission; there is no inherent constitutional invalidity in the statute in so far as it is merely a reenactment of one which was repealed by its omission from the Revised Statutes of 1923; so far as section 3 of the statute may affect shippers’ contracts in futuro and the rights of the carriers thereunder it is not unconstitutional, but in its retroactive aspects it is violative of that provision of the federal constitution which forbids the state to pass any law impairing the obligation of contracts; section 4 of the act, being designed in text and terms to disturb vested rights and to deprive the carriers of their property without due process of law, is unconstitutional and void; since the reenactment of this reparation statute in 1929 it may and does affect rates exacted by the carriers since it became effective, where those rates were only perfunctorily approved by the public service commission; but the statute cannot be construed to apply to rates which the carriers have exacted pursuant to a hearing and deliberative order of the public service commission.
Judgment will be entered accordingly and the costs will be divided between the litigants.
It is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action under the workmen’s compensation act. Judgment was for the respondent. Claimant appeals.
Max Zelinkoff, the deceased, was a salesman for the Mountain States Brush Manufacturing Corporation. His work consisted of calling on the trade with two sample cases, each of which weighed about thirty pounds. On December 23, 1931, he seemed to be in his usual health and spirits. He made a trip on that day, as usual, calling on the trade. He returned to his home at Wichita in the evening of December 24. He arrived home from the office about seven o’clock in the evening. At this time he was pale, complained of pains, in his chest, shoulders, and down his right arm, and a headache. He had never previously complained of these pains. He went to bed and stayed till December 29. On the morning of the 29'th he was found standing up. He was then gasping for air and in about the same condition he had been in on the 24th. He was taken to the office of a doctor, who examined him, and diagnosed his trouble as angina pectoris. Another doctor, who examined him on the 29th, also diagnosed his trouble as angina pectoris. On the morning of the 31st the doctor again called and found deceased to be suffering from another attack similar to the one suffered on the 29th. This doctor continued to call on him each day till January 3, 1932. At this time he found a slight heaviness and enlargement of the heart. This caused him to change his diagnosis to myocarditis as the cause of death. On the afternoon of January 3 he was again to Mr. Zelinkoff’s home, but death had occurred before he arrived.
A claim for compensation was made. The case was tried by the commissioner of workmen’s compensation. A finding was made in favor of the respondent and denying compensation. From this decision of the commissioner an appeal was taken to the district court. That court affirmed the findings of fact and award of the commissioner.
All the jurisdictional facts were agreed to there. The only question presented before the commissioner and in court was that of whether the death of the deceased was the result of accidental injury arising out of his employment. We have reached the conclusion that this question must be answered in the negative and the judgment affirmed. We have examined the cases relied upon by appellant and find that they are not in point. This court defined the word “accident” in Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793. There the following language was used:
“The word accident does not have a settled legal signification. It does have, however, a generally accepted meaning, which is the same whether considered according to the popular understanding or the approved usage of language. An accident is simply an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force.” (p. 773.)
In that case the workman suffered a pulmonary hemorrhage while swinging a heavy sledge and died before medical aid could reach him. The sudden and unexpected element was present, also what happened was of an afflictive or unfortunate character. This court has passed on many analogous cases since that opinion was written and has uniformly held that these elements must be present in order to constitute the occurrence of an accident within the meaning of the workmen’s compensation act. The theory of these cases is that something gave way within a man and the result is the same as though the workman stumbled against a sharp instrument, which penetrated his body, severing something that caused death. In all cases of this type, however, it was possible to put the finger on some definite occurrence undesigned, sudden and unexpected, and afflictive and unfortunate in character. In this case the elements of suddenness and unexpectedness are lacking.
It would add nothing to this opinion to detail the evidence here, but suffice it to say that the doctors who testified could not agree that angina pectoris could result from the physical exertion spoken of in this case and death not result almost instantly.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered’ by
Harvey, J.:
The first of these cases (No. 30,554) is an original proceeding in mandamus to require defendant to grant plaintiffs permission to sue the receiver appointed by the court in the case of Boggs v. Shenandoah Oil Company to determine plaintiffs’ claims of title to land situated in another county. The second (No. 30,658) is an appeal from the order of the court denying such permission. The actions are consolidated here, for, aside from questions relating to procedure which are no longer important, they present the same legal questions; namely, the power of the court to refuse such permission in the situation disclosed by the record; or, if the court has power to so refuse, whether such refusal was an abuse of its discretion.
The motion for the writ of mandamus alleges in substance that defendant is the duly elected, qualified and acting judge of the fifteenth judicial district of this state, which includes Osborne county; that plaintiffs reside in New York City; that for five years last past they claim to have been the owners of a described quarter section of land situated in Montgomery county, Kansas, subject to certain oil and gas leases now owned by the Red Mound Oil Company; that, except for the interest of the oil company and its predecessors in the oil and gas lease, plaintiffs claim that during all the time mentioned they were and now are the fee owners of the land described, and that they have been in possession thereof through their agent, who is named; that the royalties from the oil and gas lease have been regularly paid to them until in July, 1931, since which time they have been held up because of certain events soon to be mentioned; that prior thereto and in 1923 one J. Y. Boggs commenced an action in the district court of Osborne county against the Shenandoah Oil Company, in which action a receiver was appointed, and such action is still pending in that court; that about June 13, 1931, the receiver made application to the district court of Osborne county to enjoin the Prairie Oil and Gas Company, which was then purchasing the oil produced on the land in question, from paying royalties provided for in the oil and gas lease to these plaintiffs; that plaintiffs were not a party to that action, having never been served with summons or other process therein, nor having entered their appearance therein, and that they had no notice of the application of the receiver to enjoin the payment of the royalties; that the court allowed such injunction and since that time plaintiffs have been unable to collect such royalties; that in June, 1931, or at some time prior thereto, unknown to plaintiffs, the receiver mentioned set up some claim to the title and ownership of the land hereinbefore mentioned, the nature and extent of which are unknown to plaintiffs, which claim is a cloud upon plaintiffs’ title and which makes it necessary for them to bring an action in the district court of Montgomery county, Kansas, to determine the rights of the respective parties to such land, and with that object in view the plaintiffs, on or about July 8, 1931, presented to defendant their application to sue the receiver in Montgomery county for such purpose; that such application was taken under advisement until September 26, 1931, when an order was made refusing to grant such permission. It is further averred that the district court of Montgomery county is the only court having jurisdiction of an action to hear and determine the rights of the respective parties to the ownership of the land in question, and that the order of defendant refusing plaintiffs permission to bring such an action is without sound reason therefor and is arbitrary and denies the rights of the plaintiffs to have a determination of their claims of ownership and title to such lands. Plaintiffs further allege, on information and belief, that should they bring an action against the receiver in Montgomery county, without having permission of defendant, they would be punished for contempt for so doing. ' The prayer is for an order requiring defendant to grant such permission.
The defendant has filed an answer to the alternative writ in which the place of residence of plaintiffs is admitted; also defendant’s official position; also that the action of Boggs v. Shenandoah Oil Company, in which a receiver was appointed, was brought and is pending in his court. It is alleged that prior to the bringing of such action, and in 1919, Richard C. Patterson, father of plaintiffs, leased the real property in controversy to Hal W. Neiswanger for gas and oil and to develop the same into a producing oil company; that for the purpose of having that done Patterson conveyed the property to Neiswanger, who at that time was president of the Shenandoah Oil Company; that Neiswanger paid nothing for the purchase price of the land, but gave back a mortgage for a sum greatly in excess of its value; that under an agreement between Patterson and Neiswanger the notes given for the sale of the stock of the corporation were to be turned over to Patterson, who was to collect them for ten per cent and retain one-half of the balance to apply upon the mortgage given by Neiswanger; that stock was sold, notes taken and collections made under this agreement, but that Patterson made no accounting to the corporation or to Neiswanger of the amounts so collected, or of royalties he has received from oil runs since 1923; that in 1925 Patterson made application to the court for permission to bring an action in Montgomery county to foreclose the mortgage; that the court heard the application, took testimony, which was transcribed, made findings of fact, but made no final order for the reason that no accounting had been had between Patterson and Neiswanger, or the corporation; that thereafter Richard C. Patterson died and his son, one of the plaintiffs herein, was appointed administrator of his estate, and in open court agreed that the action might be revived as to him as administrator and as to the legal heirs of Richard C. Patterson; that plaintiffs herein, as the heirs of Richard C. Patterson, have appeared in this case, and that by reason thereof the court has jurisdiction of them and of the subject matter; that in June, 1931, the then receiver applied for an order directing the Prairie Oil and Gas Company to discontinue the payment of royalties to plaintiffs pending further order of the court, and that such order was made; that thereafter, in July, 1931, the plaintiffs made application for permission to sue the receiver in Montgomery county for the purpose of obtaining a determination of the rights and interests of the parties to the land; that about the same time the receiver made an application to the court to render judgment upon the evidence heretofore introduced, which application has not been passed upon; that no accounting has been made by Richard C. Patterson or his heirs or personal representatives of moneys received for the sale of stock in the corporation, or of royalties received from the oil runs.
For the purpose of the hearing in this court only it is stipulated that the real property in controversy stands in the name of plain tiffs and that they claim to be the owners of the land, or a substantial interest therein. •
In the appealed case the abstract shows the application made to the court in July, 1931, for permission to sue the receiver, and the order of the court made the following September refusing such permission. As a part of the abstract appellees have set forth a part of the testimony taken before the court on the former application for permission to sue the receiver.
Plaintiffs in the mandamus proceeding contend that the pleadings disclosed an actual controversy respecting the titlé to the real property situated in Montgomery county and argue that an action for the determination of the rights of the parties to that real property, whether by ejectment, to quiet title, or in some other form, must be brought in the county where the land is situated, and in support of this contention cite our statute (R. S. 60-501), the pertinent portion of which reads:
“Action for the following causes must be brought in the county in which the subject of the action is situated, . . . For the recovery of real property, or of any estate or interest therein, or for the determination in any form of any such right or interest, or to bar any defendant therefrom.”
In a long line of decisions this court has consistently held in conformity with this statute that such actions must be brought in the county in which the real property is situated. (Neal v. Reynolds, 38 Kan. 432, 16 Pac. 785; Jones v. Investment Co., 79 Kan. 477, 99 Pac. 1129; Martin v. Battey, 87 Kan. 582, 125 Pac. 88; Randall v. Ross, 94 Kan. 708, 147 Pac. 42; Moore v. Hopkins, 112 Kan. 345, 210 Pac. 1095; Black v. Black, 131 Kan. 154, 289 Pac. 480.)
Defendant argues that this statute and these decisions do not apply when the title to the land in question is claimed by a receiver appointed by the court of another county than that in which the land is situated. The statute makes no such exception, and in at least one case in which the statute was applied the receiver from another state was a party {Simington v. Cubberly, 132 Kan. 199, 203, 294 Pac. 908). We see no reason to make the exception contended for by defendant. Especially wb see no such reason in this case where, from all the facts alleged, it seems reasonably clear that plaintiffs should have an opportunity to litigate their title in the forum provided by the statute.
In the mandamus proceeding the writ prayed for will issue. In the appealed case the order of the court refusing the permission requested is reversed. | [
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The opinion of the court was delivered by
Sloan, J.:
This is an original proceeding in mandamus to compel a joint board, composed of the board of county commissioners of Douglas county and the board of city commissioners of Lawrence, to improve a certain street and highway under R. S. 1931 Supp. 12-647 et seq. An alternative writ was issued and an answer has been filed by the defendants. The plaintiff moves for a peremptory writ on the pleadings.
We glean the following facts from the pleadings: Fifteenth street, and the highway extending east therefrom, was a part of the state highway system, and on March 19,1928, the state highway commission adopted a resolution offering state and federal aid for the improvement of the street and highway in question to be available for the year of 1929. On March 26, 1928, the governing body of the city of Lawrence adopted a resolution providing that Fifteenth street, beginning at its intersection with Barker avenue, thence east to a point five-eighths of a mile east of the city limits, be graded, curbed and otherwise improved, and declaring such improvement to be expedient and necessary. Thereafter the resolution was submitted to the board of county commissioners of Douglas county, and on April 4, 1928, the board of county commissioners adopted a resolution declaring that the proposed improvement was a public utility and necessity, and provided for the establishment of benefit districts in the manner provided by law. On June 6, 1928, the city commissioners and the county commissioners met in joint session in accordance with a notice published as provided by law, and, after due consideration, passed a resolution directing that such street and highway be graded, curbed and otherwise improved; that the plans and specifications therefor be approved by the consulting engineer of Douglas county, and that the cost of the improvement be paid as provided by the statute. In August, 1930, the- state highway commission rerouted state highway number ten over Twenty-third street, and the street and highway in question were no longer any part of the state highway system. The state highway commission has not made available state or federal aid, and no further proceedings appear to have been taken in relation to the improvement prior to the filing of this action. With the consent of the court the defendants have filed an amended and supplemental answer in which it is alleged that on April 4,1932, the governing body of the city passed a resolution rescinding all resolutions adopted with reference to the improvement in question; that on the same day a similar resolution was passed by the county commissioners, and that seventy of the seventy-eight resident property owners living on the street whose property would be directly affected by the improvement are opposed, under the changed conditions, to the making of such improvement.
The plaintiff contends that since all proceedings relating to the improvement are legal and regular, that the court should compel the completion of the improvement. The legality of the proceeding is not questioned by the defendants, but they argue that under the changed condition, which has come about through no fault on their part, it is burdensome on the county, city and individual taxpayers directly affected, and this court should exercise its discretion and deny the writ.
The constitution vests this court with original jurisdiction to issue the writ of mandamus, and through it the power to protect the franchises of the state and the rights and interests of the whole people, to enforce the performance of official duties affecting the public at large and in emergency to assume jurisdiction of cases affecting local public interest or private rights where there is no other adequate remedy or there would otherwise be a failure of justice. The court is vested with a sound legal discretion to determine for itself, as the question may arise, whether the case presented is of such character as to call for the exercise of its jurisdiction. The writ does not issue as a matter of right, and it must be made to appear by the applicant that a legal right is invaded; that the public interest will not be injuriously affected and that substantial justice will be accomplished. The court may, in the exercise of its discretion, refuse the writ when in its judgment the ends of justice will not be attained. (State, ex rel., v. Miami County Comm’rs, 133 Kan. 325, 299 Pac. 965, and cases there cited.)
The facts in this case appeal to the discretion of the court in that the conditions have changed since the proceedings were commenced. State and federal aid are not available. The street is no longer a part of the highway system and it appears that the principal use of the street would be by the property owners living thereon. The judgment of the county and city officers, as well as the property owners, appears to be that the street is no longer a public utility or necessity. The court is not passing on the question of the legality of the resolutions attempting to rescind the former action of the officials.
Under all of the circumstances in this case we are constrained to hold that the public and private interest involved does not warrant the exercise of the court’s jurisdiction. We believe that justice will be best served in denying the writ.
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The opinion of the court was delivered by
Johnston, C. J.:
D. F. Marley brought this action to recover damages from Arkansas City for personal injuries suffered by him arising from a defect in a sidewalk of a street of that city. A verdict of the jury fixed the amount of his recovery at $4,500, which the court approved, and judgment for that sum was rendered.
Defendant appeals upon two grounds only. First, that it was a physical impossibility for the plaintiff to have been injured in the manner claimed; second, that improper and prejudicial argument was made by plaintiff’s attorney. It appears that a cast-iron plate had been laid over a gutter near the intersection of Adams and Summit streets, in the business part of the city. The plate was five feet long and three and one-half feet wide, and the traffic across the plate went north and south. The plate rested on a shoulder cut on the curb line at the south, and upon a concrete header about four inches wide on the north. It had a play of one inch and was held in place by its own weight. The northwest comer of the iron plate had been broken off a considerable time before the accident, leaving a triangular hole about fourteen inches long east and west, and about four inches wide on the west end of the opening. The break was uneven and tapered so that it was in shape a triangle. The plaintiff, who was about 230 pounds in weight, was walking north, in the nighttime and according to the evidence his right foot or some part of it dropped into or was caught in the hole, causing him to fall, dislocating his foot, twisting his leg and lacerating the tendons thereof. He was carried to a hospital, where the dislocation was reduced and his foot placed in a plaster cast, in which it remained for several weeks. The nature and extent of the injury, however, is not a matter of controversy here, but it is contended that as the plaintiff’s foot was four inches wide and eleven inches long, it was impossible for his foot to have gone into the opening as described by the plaintiff. It is argued that as he was walking on the west side of the street as he approached the plate from the south, the broken corner of it was on the left-hand side and that he had stepped into this hole with his right foot, which was at the north and west edges of the plate, and further that the open space was not sufficiently large to admit of the entrance of his foot. He testified that his foot went into or caught in the opening, throwing him on the pavement and twisting the foot and leg.
Defendant insists that it was physically impossible for the accident to have happened as stated by plaintiff, and that the evidence does not disclose any other way in which it did happen. It is said that the hole was not large enough for the foot of an ordinary man to have entered it; that he was walking north on the west edge of the plate, his left foot being on the plate, and yet it was his right-foot that entered the hole, and that he must have crossed his legs to have accomplished it. Plaintiff says he was wearing a number eight shoe at the time of the accident. There was testimony that his shoe was about eleven inches long and four inches wide, and it is argued that he could not have entered a hole which some witnesses said was only from three and one-half to four inches wide at the widest part of the hole. It was widest at the west end and diminished in width to a point fourteen inches towards the east.
It was in evidence that the heel of a number eleven shoe is three inches wide and three inches long, and the heel of a number eight shoe which plaintiff was wearing may have been smaller. Whatever the size of the shoe or the smallness of the hole, and however the foot may have entered it, plaintiff did step on the opening, which caused him to fall, and those that were near him at the time of the accident and went at once to his assistance found his foot had passed into the hole, which was about five inches deep at that place, and there is evidence that the foot could not be released until the plate was lifted.
As to the impossibility of the occurrence, it is not possible to hold that the entry of the foot into the hole is an impossibility when it is shown to have been in the hole immediately after plaintiff stepped upon or into it. Plaintiff was not able to state just how his foot entered the hole, but it got into it and threw him down, causing the injury. Evidently the foot was a close fit for the hole, which was about four inches wide.
The defect in the walk was an obvious one. It was admitted by the city engineer that it was dangerous and that it was repaired after the accident. The street foreman also admitted that the broken plate was in a sense dangerous, and that it was removed after the accident. He also said that in a test the heel of his shoe could be put in the hole, and by placing his left foot outside of the plate and in the gutter his right foot could be put in the hole up to the ankle. Under the evidence it is clear that the entrance of the foot into the hole cannot be regarded as a palpable physical impossibility. It is true, as defendant contends, that where the testimony of a witness is clearly contrary to physical law, the court should treat the testimony as wholly lacking in probative force and disregard it. Before that can be done, however, it must be demonstrated that the testimony is plainly and palpably incompatible with physical laws or indisputable physical facts. In Sheppard v. Storage Co., 82 Kan. 509, 108 Pac. 819, it was said:
“Where there is some evidence tending to support a verdict to justify an appellate court in overturning it on the ground that it is contradicted by the settled and unquestioned laws of nature or by some established principle of mathematics, mechanics, physics or the like, the undisputed physical facts must demonstrate beyond any reasonable doubt that the evidence is false and that the verdict is without support in fact or law.” (Syl. If 1.)
See, also, extended annotations of the rule in 8 A. L. R. 796; 21 A. L. R. 141. We conclude that the testimony falls short of such a demonstration, and that there was no error in finding for the plaintiff.
The other ground of error is the alleged misconduct of counsel in the argument of the case. It is based on the following statement and colloquy:
“By Mb. Walker: I say, Jim McDermott asked John O’Connell, when he came from the witness stand, what is your occupation? John O’Connell said, I am a laborer. Mr. McDermott said: What is a laborer? I well wondered why he should ask him such a question, because as a member of the court of industrial relations, he with Henry Allen went down—
“Mb. McDermott: Now we object — ■
“Mb. Walker: I am repeating it. He and Henry Allen went down into the* coal-mining district and told those men whether they could work or not. They took the matter to the supreme court and they said after investigation that it wasn’t a lawful court. (Mr. McDermott again objected.)”
On the objection the court stated:
“I don’t remember exactly what the testimony was, such matters are a matter of public record, public knowledge. The jury will remember the testimony.”
The facetious reference to an adventure of defendant’s counsel and Henry Allen in the mining district was, of course, outside of any issue in the case, but it appears to be no more than a bit of banter, the like of which sometimes is indulged in by counsel in the course of a trial. It may have amused the jurors but is not likely to have prejudiced them. The quip seems to have arisen out of the innocent-looking question of a witness as to “What is a laborer?” In reply the witness said, “I do common labor, mix mortar, one thing and another.” Another question was, “What else would be one thing and another.” The witness replied, “Any kind of common labor.”
We think no prejudice could have resulted from the incident and remarks. The use of extrinsic or impertinent matter by a counsel in an argument is not sufficient of itself to work a reversal. It must also appear to have prejudiced the rights of the defeated party. Prejudice, we think, has not been shown.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an original proceeding in mandamus brought against the commissioners of the city of Hays City, seeking to compel them to either repeal ordinance No. 1169 or submit the matter to a vote of the electors of the city in accordance with the prayer of a referendum petition filed with the city clerk. The ordinance in question was one providing for the condemnation of a strip of land, the property of private owners, for the purpose of widening' Park avenue and providing for the payment of the cost thereof. This action was first instituted by a citizen and taxpayer, but later, on application of the county attorney of Ellis county and the attorneys for the plaintiff, permission was granted to substitute as plaintiff the state of Kansas, on relation of the county attorney of Ellis county.
An alternative writ was issued, and the answer of the defendants is a general denial and affirmative allegations that the condemnation proceedings were regular and that the referendum laws do not apply to such proceedings. .
A stipulation was filed covering all the essential facts, and the only propositions involved are: First, Do the initiative and referendum statutes apply to proceedings to condemn land in a city of the second class operating under the manager plan? and second, Have 'the petitioners for referendum complied with the statutory requirements?
It is urged that the only law under which condemnation proceedings can be had by a city of the second class is R. S. 26-201, and that while R. S. 14-435 gives to such cities the power of eminent domain, there is no procedure provided in that act for the exercise of such power. R. S. 26-201 directs that the governing body shall make an order setting forth such condemnation and under certain conditions matters are to be fixed by ordinance. R. S. 14-1102 of the commission form of government is as follows:
“The powers hereby granted shall be exercised by the board of commissioners of such city as hereinafter set forth, and such board of commissioners shall have and exercise all such rights, powers and duties as are now or shall be hereinafter set forth, and such board of commissioners shall have and exercise all such rights, powers and duties as are now or shall be hereafter conferred by the laws of the state of Kansas upon the governing body of cities of the second class not in conflict with the provisions of this act.”
The right to exercise the power of eminent domain is not in conflict with the provisions of the statute just quoted. It is certainly one of the many rights, powers and duties conferred by law upon the governing body of a city. The powers of the governing body of a city are not limited to those provided in any one act of the legislature but may be extended by other and subsequent acts, as in this case, which outlines a special procedure. All that is necessary is that it be not in conflict with the general provisions, and certainly the rights and powers of eminent domain are not.
The manager form of city government does not change the situation as to the legislative duties of the commissioners (R. S. 12-1002, 12-1006, 12-1017 and 12-1020). The commissioners pass all ordinances and appoint the manager to hold office during the pleasure of the commission (R. S. 12-1010 and 12-1011). The duties of the city manager are not legislative but administrative (R. S. 12-1014). The referendum section (R. S. 14-1802) provides that no ordinance, with some exceptions hereafter to be considered, shall go into effect for ten days after its passage, and if during that time a petition signed by a certain percentage of the electors protesting against its passage shall be presented to the board of commissioners, the board shall either repeal the ordinance or submit it to a vote of the electors.
■ It is contended by the defendants that an ordinance that is permissible under the general laws of this state for condemnation is not required to be referred under this statute. There are three exceptions in this statute and only three, namely, (1) an ordinance required by the general law; (2) one required by this act; and (3) one for public peace, health or safety. The ordinance here in question would not come under either of these exceptions. The ordinance, of course, was permissive. No obligation or requirement whatever compelled its enactment. ' The coftdemnatiim feature thereof was the means or method proposed to accomplish the desired result, viz., the widening of the avenue and paying the cost thereof. Unless the land necessary for such widening purpose was purchased or donated there was no other method of procuring it except by condemnation proceedings. The real gist of the ordinance was the determination to widen Park avenue and provide for the payment of the cost thereof. This was distinctly legislative, and incidental thereto the ordinance provided for condemnation and appropriation of private property for such widening purpose. This is plainly apparent in the title of the ordinance, which is as follows:
“An ordinance providing for the condemnation and appropriation of private property situated in blocks 5 and 6 of C. W. Reeder’s addition to the town of Hays City, Kan., for the purpose of widening Park avenue between the north line of Sixth street and the south line of Eighth street in said addition and providing for the payment of the cost thereof.”
The defendants regard this ordinance wholly as one for condemnation proceedings, very much as if a previous ordinance had been enacted providing for the widening of the avenue and the payment of the cost thereof, and now an ordinance is passed to appropriate the land necessary for that purpose by condemnation proceedings. It is not here necessary to determine whether or not such a separate ordinance is subject to the referendum statute, because the ordinance here in question is not of that character. The widening of Park avenue and providing for the expense thereof is purely legislative in character. And if it is finally determined it should be widened, there is no question as to the right or power of the city commission to acquire the land for that purpose by condemnation proceedings. A clear distinction was made in the case of State, ex rel., v. City of Kingman, 123 Kan. 207, 255 Pac. 645, between legislative and administrative ordinances. In that case it was held, after a resolution, instead of an ordinance, had been adopted and published by the commissioners declaring the improvement of a street to be necessary, that the later ordinance, providing for the details of paving the same, was administrative and not subject to the referendum statute. (See, also, Palmer v. Munro, 123 Kan. 387, 255 Pac. 67.) In the case of State, ex rel., v. Morton, 128 Kan. 125, 276 Pac. 62, it was held that the cooperation of the city governing body with the federal and state authorities in establishing a connecting road through the city was an administrative detail and not subject to the control of the referendum statute relating to legislation by ordinance.
The main purpose of ordinance No. 1169 being legislative, we hold it was subject to the provisions of the referendum statute. (R. S. 14-1802.)
Defendants insist the referendum petition in this case was not presented to the board of commissioners as required by the statute when it was in fact left with the city clerk, directing our attention to the difference in the requirements between the referendum and the initiative. We think the leaving, presenting or filing the same with the city clerk is a substantial compliance with this requirement, and if left with the clerk within the required time it is a compliance, although it was not physically presented to the board until three days after the limit of time, the board not being earlier in session.
Defendants point out defects and irregularities in the petition, protesting against the passage of the ordinance and the insufficiency of the same, but it bears a certificate of sufficiency by the city clerk imder the statute requiring the city clerk to determine the same, which, in the absence of fraud or misconduct, is binding and conclusive.
“To that commission the legislature has committed the authority to ascertain and determine the sufficiency of the petitions and whether those signing them constituted ten per cent of the legal electors of the city. This power and discretion is to be exercised by this tribunal unhampered by judicial interference unless it is shown that the act is without jurisdiction or there was fraud or some misconduct which is the substantial equivalent of fraud.” (State, ex rel., v. Electric Power Co., 116 Kan. 70, 73, 226 Pac. 254. See, also, State, ex rel., v. Holcomb, 95 Kan. 660, 149 Pac. 684.)
Other defects and irregularities are mentioned and discussed, as required preliminary survey and the right of the city to the use of Park avenue, but these features do not affect the real question here for determination.
The writ is allowed, and the city commissioners are directed to either repeal ordinance No. 1169 or submit it to the electors under the referendum statute. | [
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The opinion of the court was delivered by
Dawson, J.:
This action involved the validity of a will of the late Rose Edington which was admitted to probate in Linn county. There was an appeal from the order admitting it to probate, and an action was begun to contest the will. In the district court the appeal and the contest were tried and decided together.
The pertinent facts, in brief, were these: Rose Edington, a single woman, died testate at the home of her sister, Minnie G. Stine, in Linn county, at the age of 66. She had formerly lived with her parents in Washington county. On the death of her mother she and her father removed to Marysville, in Marshall county. For many years she followed the business of a traveling solicitor for newspapers, and often conducted piano contests to stimulate subscriptions to the newspapers she represented. These activities as well as her regular occupation deprived her in large measure of enjoying the privileges of a home, but at such limited intervals as her affairs permitted she made her home with a sister, Dr. Jennie Eddy, of Marysville. This sister died in 1926, after which Miss Edington occasionally resided with another sister, Mrs. Jenkinson, of Troy; but the testatrix continued to regard herself as a legal resident of Marysville.
In June, 1926, Miss Edington fell ill, and went to a hospital in Ohio, where she remained two years. In August, 1928, while still in the hospital, she made a will devising her property in fairly equal parts to her three brothers, her only surviving sister, and to a deceased sister’s daughter. Her property principally consisted of a farm in Oklahoma, about $3,400 in Liberty bonds in her safety-deposit box in Marysville and some money in a Marysville bank. In that will she described herself as: “I, Rose Edington, temporarily in the city of Kenton, county of Hardin, state of Ohio, but resident of Marysville, Kansas, do hereby make [this will, etc.] ” That will named her brother, Charles R. Edington, of Marshall county, as executor. In September, 1928, Charles R. Edington went to Ohio and brought the testatrix to the home of defendant, the only sister she had left. This arrangement was made, partly at least, because it was not convenient to bring her to Marysville, and because there was no one of the family thereabout so situated as to be able to care for her. Ere that time, Mrs. Jenkinson, of Troy, with whom she sometimes stayed when not traveling in pursuit of her business, had died. The sole remaining sister, Mrs. Stine, of Linn county, undertook to board and care for the testatrix for a stipulated weekly sum agreed upon between herself and her brother Charles.
One of the sharply disputed questions in the trial below was the mental condition of Miss Edington during the year she abode with defendant in Linn county and particularly at and about the time the will in controversy was made, which was dated on August 7, 1929, some six weeks prior to her death. This last will began thus: “I, Rose Edington, of Pleasanton, Linn county, Kansas, do hereby make, publish and declare this my last will, etc.” It devised all the property of the testatrix to her sister, Mrs. Stine, and named Frank Stine, husband of the sole beneficiary, as executor.
Following Miss Edington’s death, her brother Charles, on September 24, 1929, filed the Ohio will for probate in Marshall county and it was admitted to probate on October 7, 1929. The later Finn county will was filed for probate in Linn county on September 25, 1929, and admitted to probate on October 10,1929. On October 14, 1929, Charles R. Edington, appointed executor by the Marshall county probate court, with the other appellants herein, appealed from the order admitting the Linn county will to probate. About the same time the same appellants brought this action in the district court of Linn county to contest the will of August 7, 1929, in which all the property of the testatrix was devised to her sister, Mrs. Stine. These causes were heard together, at the conclusion of which the trial court made findings of fact as follows:
“And the court . . . finds that this is an action to contest a will and an appeal from the order of the probate court of Linn county, Kansas, admitting to probate the will of Rose Edington, deceased.
“The court finds that the first question that arises in the above matter, is the residence of the deceased, Rose Edington; and, relative thereto, the court finds and concludes that it is established clearly and conclusively, by the evidence, that Rose Edington was a resident of Linn comity, Kansas, at the time of her death.
“The court further finds that the will executed by Rose Edington on or about the 7th of August, 1929, is the last will and testament of the said Rose Edington, deceased; that said last will and testament of Rose Edington was duly admitted to probate in the probate court of Linn county, Kansas, on or about October 10, 1929; and that the order and judgment of the probate court of Linn county, Kansas, admitting said will to probate should be affirmed.
“The court further finds that the purported will of Rose Edington, deceased, purported to have been admitted to probate in Marshall county, Kansas, on or about October 7, 1929, was not the last will and testament of Rose Edington, deceased; and that the probate court of Marshall county, Kansas, did not have jurisdiction of the estate of Rose Edington, deceased, for the reason that at the time of the death of said Rose Edington, she was a resident of Linn county, Kansas.”
Judgment was accordingly entered for defendant, and the beneficiaries under the Marshall county will appeal, presenting for our review four main points of dispute, viz.:
“1. Whether the so-called Marshall county will shall prevail or whether the so-called Linn county will shall prevail. The one-year bar of the statute and the jurisdictional question of residence are involved.
“2. Whether Rose Edington, the testatrix, was a resident of Marshall county or Linn county at the time she died.
“3. Whether the Linn county will should be set aside under the requirement of R. S. 22-214, requiring that where confidential relations exist the will shall not be held to be valid unless it be affirmatively shown that the testator had independent advice.
“4. Whether Rose Edington was mentally competent to make a will and as to undue influence.”
Touching these in order, appellants first contend that the Ohio will of 1928 was offered for probate and probated in Marshall county a day ahead of the Linn county will, and since no appeal was taken from the probate of the will in Marshall county, and no proceedings instituted to contest it as permitted by statute (R. S. 1931 Supp. 22-222, 22-223), that will must be recognized as valid and binding on all concerned. The case of Rishel v. McPherson County, 122 Kan. 741, 253 Pac. 586, is cited. In that case it was said:
“The statute provides for establishing a will by a proceeding in rem (Pee v. Carlyle, 120 Kan. 200, 202, 243 Pac. 296), which concludes the world with respect to validity of the will, unless some person claiming an interest appears within two years and contests it by civil action in the district court. The time limitation is now one year. (Laws 1925, ch. 160.)” (p. 751.)
Obviously, however, the significance to be attached to the probate of the Ohio will in Marshall county depends upon whether the testatrix was a resident of Marshall county when she died. The pertinent statute, in part, reads:
“That upon the decease of any inhabitant of this state, letters testamentary or letters of administration on his estate shall be granted by the probate court of the county in which the deceased was an inhabitant or resident at the time of his death. . . .” (R. S. 22-301.)
In Perry v. St. J. & W. Rld. Co., 29 Kan. 420, the validity of an order of the probate court of Doniphan county issuing letters of administration for the estate of a woman killed by the defendant railroad was under review. This court said:
“As the deceased was not an inhabitant or resident of Doniphan county at the time of her death, . . . the probate court of Doniphan county had no jurisdiction to issue letters of administration on her estate, or to appoint the plaintiff the administrator.” (p. 422.)
In Ewing v. Mallison, 65 Kan. 484, 70 Pac. 369, the validity of letters of administration by the probate court of Wyandotte county for the estate of a man who in his lifetime had been a resident of Lyon county was called in question. An administrator had also been appointed by the probate court of Lyon county, and he filed a plea in abatement in the probate court of Wyandotte county. This plea was overruled, and upon a hearing it was found that the deceased was a resident of Wyandotte county at the date of his death. No appeal was taken from the proceedings in either probate court. Later an action was begun by the Wyandotte county administrator to recover certain certificates of deposit in an Emporia bank, and the Lyon county administrator was impleaded. He set up his appointment as administrator in Lyon county and his right to the certificates. The Wyandotte county administrator replied, pleading the adjudication in the probate court of Wyandotte county and the consequent estoppel of the Lyon county administrator to claim the certificates. The lower court ruled in favor of plaintiff, but the judgment was reversed by this court, where it was held:
“The probate court of a county has no jurisdiction over the estate of a deceased resident of this state to appoint an executor or administrator, or to prove a will, unless the deceased was at the time of his death an inhabitant or resident of the county of such probate court.
“The place of residence of the deceased at the time of his death is an essential, collateral, jurisdictional question of fact. • This fact is not conclusively established by the appointment of an administrator, the issuance of letters of administration, the probating of a will, or by any other decision in reference to the estate of the deceased which a probate court may make; and, in a proper collateral action or proceeding, the true place of residence of the deceased at the time of his death may be shown for the purpose of disproving jurisdiction in the court assuming to administer the estate.
“A party is not estopped or concluded by the decision of a court proceeding without jurisdiction of the subject matter, but may show the want of jurisdiction in the court in order to show that he is not concluded by its decision.” (Syl. UK 2, 3, 5.)
Again in Dresser v. Bank, 101 Kan. 401, 168 Pac. 672, it was said:
“A probate court is without authority to appoint an administrator of the estate of a deceased person unless the deceased was a resident of the county of the court at the time of his death, and a decision of a probate court that the deceased was a resident of the county of the court at the time of his death is open to collateral inquiry for the purpose of showing a lack of jurisdiction to make the appointment.” (Syl.)
See, also, Connell v. Moore, 70 Kan. 88, 78 Pac. 164.
The next point urged by appellant deals with the question whether the testatrix was a resident of Marshall or Linn county at the time she died. Appellants say they “think that the undisputed evidence shows that Rose Edington was in fact a resident of Marshall county when she died.” That puts the matter altogether too broadly. Her residence in Marshall county had long been constructive rather than actual. During her active years her work largely deprived her of an actual residence anywhere, although of course she had a right to choose Marshall county as her place of residence, and so long as she so regarded it the courts and everybody concerned would have to.respect her attitude on the subject. But she never did settle down as a resident of Marshall county, never paid taxes there, never voted there, and had not actually been in Marysville since shortly after the death of her sister, Doctor Eddy, in 1926. It was proper for the court to take into consideration the fact that her sister’s death in Marysville deprived her of the practical facilities of a place of residence, also the lengthening years and growing infirmities of the testatrix, and the fact that on her return'to Kansas there was no practicable way she could take up her abode in Marshall county. In March, 1929, Charles R. Edington, who had gone to Ohio and brought the testatrix to the home of defendant in Linn county, wrote: “I sure had a white elephant when I found her in Ohio.” Her growing infirmities, and her constant need of a sister’s care, apparently led her to abandon all idea of a residence in Marshall county and induced her to make her permanent residence in Linn county. And so, in the spring of 1929, when the township assessor called in Linn county on her, she listed her personal property with him and stated that she was a resident of Linn county. If the will made in Linn county is otherwise valid, its recital that the testatrix was a resident of Linn county is also entitled to some evidential significance. Under all the evidence it seems imperative to hold that the question of the place of residence of the testatrix was merely the familiar one of disputed fact, and that the evidence and inferences to which the trial court gave credence are so potent that the finding that the place of Miss Edington’s residence at the time of her death was in Linn county will have to stand. ■
The next point urged by appellants is that the Linn county will was invalid because it was written and prepared by Minnie Stine, sole beneficiary and confidential agent of the testatrix, and that the evidence shows that the testatrix had no independent advice. Our perusal of the record suggests no such objections to the will. In the first place Minnie Stine neither wrote nor prepared the will. It was written by A. M. Kent, a lawyer of Pleasanton, and witnessed by Kent and by Frank B. Ellis, a Pleasanton banker. Both these men testified as to the circumstances under which the will was prepared and approved by the testatrix. Lawyer Kent testified that he had been apprised by Frank Stine, husband of Minnie, of the way Miss Edington wanted her property disposed of. The will was prepared' accordingly and read to her. Kent testified:
“I said, ‘Miss Edington, is that the way you want it?’ and she said: ‘That is just the way I want it. I want to give all my property to my sister, Mrs. Stine.’ I asked her who she wanted to witness the will, and she said she wanted us two [Kent and Ellis] to witness the will. She requested Frank Ellis to take the will and put it in the bank.”
It therefore appears that the circumstances were entirely wanting here for the application of the provision of R. S. 22-214, which requires that where it appears that the will is written or prepared by the sole or principal beneficiary it must be'shown affirmatively that the testator knew its contents and had independent advice with reference thereto. In Ginter v. Ginter, 79 Kan. 721, 101 Pac. 634, it was said:
“The mere existence of confidential relations between a testator and a beneficiary under his will does not raise a presumption that the beneficiary has. exercised undue influence over the testator and does not cast upon the beneficiary the burden of disproving undue influence. Those consequences follow only when the beneficiary has been actively concerned in some way with the preparation or execution of the will.” (Syl. ¶ 8.)
See, also, Carmen v. Knight, 85 Kan. 18, 116 Pac. 231; Higbee v. Bloom, 108 Kan. 723, 730, 731, 196 Pac. 1080; Maddy v. Hock, 134 Kan. 15, 20, 3 P. 2d 408.
Among the cases cited by appellants is the recent one of Johnson v. Donley, 133 Kan. 73, 299 Pac. 270, where the fact that the witnesses to the will were selected by the scrivener and not by the testator was given some evidential significance along with the other evidence to justify the trial court’s findings and judgment. But here the evidence was clear and not contradicted that the testatrix herself selected the witnesses.
On the fourth and last point urged by appellants they contend that the evidence shows that Rose Edington was not mentally competent to make a will on August 7, 1929, and that it must have been brought about by undue influence. It is the law that undue influence cannot be presumed but must be established. There is nothing in this record to justify a finding of undue influence. As to the testamentary capacity of Miss Edington, it was shown that her affliction was paralysis agitans, or shaking palsy. Expert medical testimony was adduced that this disease does not affect the mind, although the drugs given to alleviate it sometimes may cause the mind to wander temporarily. There was abundant testimony, both professional and nonprofessional, to the effect that notwithstanding Miss Edington’s physical infirmities at and about the time the will was executed by her, “her mental condition was alert,” that "she knew what she was doing” and that “she talked just as sensibly as anybody.” It is needless to set out the evidence at greater length; this court has read it with painstaking care, and we are bound to hold that the trial court’s finding of fact on the question of Miss Edington’s testamentary capacity cannot be disturbed without violating the cardinal rules which govern appellate review.
The judgment is affirmed. | [
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The opinion of - the court was delivered by
Valentine, J.:
This was an action on a note and mortgage. The note was executed by Israel G. Harlan and his wife Mary, to Lawson C. Holmes, dated 10th November 1871, for $2,570, due in one year, with interest after maturity at the rate of ten per cent, per annum, and was indorsed in blank by said Holmes. The defendants, Harlan and wife, set up the defenses, that the note was procured from them by fraud, and without sufficient consideration; that it was paid; and that the plaintiff Ecton had full notice of these facts when the note was assigned to him. A trial was had before the court and a jury, and a verdict and judgment were rendered in favor of the plaintiff and against the defendants for $250. The plaintiff now brings the case to this court for review.
The note was given for a stock of drugs and medicines; and the evidence would seem to show that Holmes did, to some extent, as alleged, overreach the defendants, selling to them more articles than he owned, and for a larger price than they were worth. But still the articles that he actually owned and sold to the defendants were worth vastly more than the amount of the verdict and judgment which plaintiff obtained. There was no evidence tending to show that the note was paid, or partially paid; and no evidence tending to show that the plaintiff had notice of the defendants’ equities or defenses against the note. The supposed payment was the assignment by Harlan to Holmes of a certain contract between Harlan and the Missouri River, Fort Scott & Gulf Railroad Company for the purchase and sale of a certain eighty-acre piece of land known as the “Joy Land.” This assignment was made at the time that the note and mortgage were given. The mortgage was on another piece of land. The witness Sayres testified, that during the negotiations “Holmes told Harlan he did not consider the mortgage on the land sufficient security. Harlan then told him of the eighty acres of Joy land; and he said he would take that also.” Harlan himself testified:
“I gave Holmes a mortgage on a quarter - section of the laud, and assigned a contract for eighty acres.
“Question: What is the value of the eighty acres? Answer: The value of the land would be, if deeded, about $12.50 per acre.
“This was a contract from the Missouri River, Fort Scott & Gulf Railroad Company, at $5.50 per acre. Don’t remember as I had paid any money on the contract. . Think I had not. This was given as collateral security on the note.”
This is all the evidence there was upon this subject. And from this evidence, it will be seen, that this contract was assigned at the time the note was given, not as a payment on the note, but as collateral security for the note. No particular value was fixed upon the contract at the time it was assigned; and therefore how much it would have paid, or what its value as a security was, cannot now be ascertained very accurately; but, unless the land was worth more than $5.50 per acre, it would not have paid much, or secured much; for just that amount (which was the whole of the original contract price for the land,) was still due and unpaid against the land. From the entire evidence in the case, the charge, and suggestions of the court, and the verdict of the jury, we should judge that the jury probably deducted $1,000 from the note because of the supposed payment resulting from said assignment. The plaintiff also objected to the evidence concerning said assignment, for the further reason, that the evidence was parol, while both the contract and the assignment were in writing.
With reference to notice to the plaintiff of the defendant’s equities, we would say, that, as it is admitted that the plaintiff was the holder of the note, indorsed as aforesaid, the law will presume, in the absence of anything to the contrary, that he was an innocent and bona fide holder thereof for value, and that it was indorsed to him before due. (Rahm v. Bridge Co., 16 Kas. 530.) These facts were also proved affirmatively by the plaintiff. There was some evidence however, and a few circumstances in the case, tending to throw suspicion upon the plaintiff’s innocence and good faith, but still they were not sufficient to prove prima facie that he had notice, or to overcome the presumption of law in his favor that he did not have notice. But even if the plaintiff were not an innocent holder of the note, and even if the defendant had a right, as against him, to interpose every defense that he could have had against the note if it had remained in the hands of Holmes, still, the plaintiff ought to have recovered a much larger judgment than he did recover in this case. The reduction of the amount below what it ought to have been was made by the jury without evidence \ and for that reason the court below should have set aside the verdict and granted a new trial, as asked by the plaintiff.
The judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action under the stock-killing law of 1874; and the substantial question is, whether the facts in the case establish a liability under that statute. The undisputed facts are, that the railroad company’s track runs through the land of plaintiff, and is unfenced; that on said land it crosses a bridge of some forty to sixty feet in length, and that said bridge is a tie bridge, with ties several inches apart; that a mare belonging to plaintiffs was on the track when the train approached, and, frightened thereby, commenced running along the track, followed by the train; that when she reached the bridge she either attempted to jump forward, or was struck by the locomotive and thrown forward, onto the bridge, and her legs falling between the ties, she receive such injuries as caused her death. A good deal of testimony was directed to the point whether the locomotive actually touched the animal, or was stopped before reaching the bridge, and the injuries resulted from the animal’s efforts at escape. And the contention of the learned counsel for the railroad company is, that there must be an actual collision between the locomotive, or cars, and the animal, before any liability arises under that statute. The statute imposes liability for every animal killed or wounded “by the engine or cars on such railway, or in any other manner whatever in operaing such railway,” with the proviso that the act shall not apply to any company “whose road is inclosed with a good and lawful fence to prevent such animals from being on such road.” And we think the statute clearly covers a case like the present. The lack of fence furnished the opportunity for the injury. A fence would have prevented the accident. And the proviso in the statute is a'sort of negative pregnant. Not only must there be the lack of a fence, but also the lack of a fence which would have prevented. Suppose for instance, this mare had been feeding in a neighboring field, and, frightened by a passing train, had fled, and in her flight, without ever passing onto defendant’s road, had received injury, no liability could have been enforced under the statute. So also, if the injury took place at a public crossing, at which (and at which alone) the animal passed onto the track, or if she were being carried as freight on the company’s cars. In all these cases, the lack of a fence would either have no possible bearing upon the injury, or else such lack of fence is compelled by the superior rights of the traveling public. The injury would have happened, except in the case of the public crossing, whether the road were fenced or not. The matter of fence in such cases forms no element in the transaction. So that it may be laid down as a general proposition, that wherever the question of fence sustains no relation to the injury, and wherever superior obligations forbid a fence, the act is inapplicable.
Again, the liability is not limited to cases where the animal is killed or wounded by the “engine or cars” — which might perhaps be construed as referring solely to actual collision — but extends to those cases where the animal is injured “in any other manner whatever in operating such railway.” This last clause is very broad, and clearly covers a case like the present. Whether the engine struck the mare or not, the injury resulted directly from the operating of the railway. Of course, the mere fact that she was injured on the track, would not be conclusive. An injury might happen from the act of strangers, or the wanton acts of employés of the road, outside the scope of their employment. If a brakeman, seeing a mare on the track, had drawn his revolver and shot her in mere wantonness, the company would not be liable. Such act might be done by one while operating the railway, but not in operating it. It is like any other wanton and willful act of employés outside the scope of their employment, casting no liability on any one but themselves. But where the injury occurs in the actual operating of the railway, and as the direct result of such operating, then the statute applies. Here the company was running one of its trains. An animal is on thé track, permitted to come on through the lack of a fence along the track at a place where it ought to be fenced. The approaching train frightens it, and it flees along the track to avoid the danger, and in that flight either falls or is thrown by the engine into the open spaces of a tie bridge, and is injured. Clearly, the train acting upon the animal’s sense of fear, and the open space of the bridge, are the direct causes of the injury. It results from and occurs in the operating of the railroad.
We think therefore that the company was properly held responsible, and the judgment will be affirmed.
Valentine, J., concurring.
Horton, C. J., not sitting, having been of counsel in the case. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Caroline Gibson, as administratrix of the estate of Thomas Gibson, deceased, against the city of Wyandotte for $10,000 damages. The first question arising in the case is one with reference to the competency of certain jurors. Four of the jurors who tried the case, to-wit, J. R. Blanton, Edward Lane, J. E. Landers, and J. A. McConnell, were residents, citizens, and taxpayers of the said city of Wyandotte. t> _£» ,i i i .oeiore these -jurors were sworn, they were duly J , . challenged upon the ground that they were mterested in the event of the suit. The court below tried these challenges upon the oaths of the jurors themselves, who severally stated that they were residents, citizens, and taxpayers of the said city of Wyandotte. Upon this evidence the court below held, and “decided, that the fact of the said jurors being residents and citizens of the said city of Wyandotte and taxpayers there, was not a sufficient ground of challenge to the jurors aforesaid, and that they were competent jurors for the trial of the cause.” The plaintiff excepted to this ruling. She did not then challenge these jurors peremptorily, for she had already exhausted all of her peremptory challenges. These jurors were then sworn, along with the other jurors, to try the cause. A trial was had, and a verdict and judgment were rendered in the case in favor of the city, and against the plaintiff.
We think the court below erred in overruling the plaintiff’s challenges. Said jurors were not competent to hear and determine this case. They were each personally interested in the result of the suit. We have no statute attempting to make such jurors competent, while the statute excluding jurors who have “an interest in the cause,” (Gen. Stat. 680, § 270,) would render them incompetent. The common law would undoubtedly exclude such jurors. At common law jurors were required to be ornni exoeptione mayores. And the great weight of authority, if not all authority, would exclude jurors interested in the cause as these jurors were. See Diveny v. City of Elmira, 51 N. Y. 506; Wood v. Stoddard, 2 Johns. 194; Fine v. St. Louis, &c., 30 Mo. 166, 173; Eberle v. Board, &c., of St. Louis, 11 Mo. 247; Mayor of Columbus v. Gœtchens, 7 Ga. 139; Russell v. Hamilton, 3 Ill. 56; Watson v. Tripp, (Supreme Court of Rhode Island,) 15 Am. Law Reg. (N. S.) 282; Bailey v. Trumbull, 31 Conn. 581; Commonwealth v. Ryan, 5 Mass. 90; Cleage v. Hyden, 6 Heiskell, (Tenn.) 73. The authorities cited by the defendant do not seem to have much application to this case, and yet they are probably the best that could be cited for that side of the question. Section 7 of the act relating to counties and county officers, (Gen. Stat. 254,) has no application to this case. It simply provides that an inhabitant of a county may be a competent juror in an action in which the county is interested, aud it has no relation to inhabitants or taxpayers of cities. For the error in overruling such challenges, there must be a new trial.
We hardly think that it is necessary to decide any of the other questions presented by counsel in this ease. But, if, on a new the plaintiff can show that the death decease(j was caused through the negligence of the city, without at the same time showing that the deceased contributed to his injuries by his own negligence, she will prima facie be entitled to recover. In such a case the contributory negligence of the deceased would be matter for the defense. (K. P. Rly. Co. v. Pointer, 14 Kas. 38, 50, 51.) But if it should be shown by the evidence of either party that the deceased contributed by his own negligence to the injury which caused his death, then prima facie the plaintiff could not recover. In such a case it would devolve upon the plaintiff to rebut this evidence tending to show'contributory negligence.
Judgment reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
The only questions involved in this case are, whether a certain machine known as a “McCormick Advance Reaper and Mower,” is a “ farming utensil,” within the meaning of subdivision 6 of section 3 of the act relating to exemptions, (Gen. Stat. 474,) and whether such a machine in the hands of a farmer w-ho was the head of a family, and had less than three hundred dollars worth of farming implements, would be exempt from an execution issued against such farmer on a judgment rendered on a promissory note given by such farmer for the purchase-money of said machine. The court below found both that said machine was a “farming utensil,” and that it was exempt from said execution; and we are now asked by the plaintiff in error to reverse these rulings of the court below.
Unfortunately.for the plaintiff in error, there is nothing in the record brought to this court that shows what kind of a ^machine a “McCormick Advance Reaper and Mower” is. We suppose however that it differs from a scythe, a sickle, or a cradle. In fact, outside of the record we know this to be true; but still the record does not show it. But taking our own knowledge of what a “ McCormick Advance Reaper and Mower” is, we would say that we think it is a “farming utensil” within the meaning of- the exemption laws; and under the circumstances of this case we think it was exempt from said execution. We know of no reason why it should not be exempt from an execution issued on a judgment ren derecl on a promissory note given for the purchase-money, as well as from any other execution. The plaintiff in error has not furnished us with any such reason, and the statute does "not make any difference between the execution issued in this case and executions issued on judgments not rendered for purchase-money.
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 was a prosecution for an assault. The defense was, that appellant did the acts complained of to compel the prosecuting witness to leave certain premises, which were in his charge, and over which the witness was driving with a team and wagon. On the part of the prosecution, it was shown that appellant drew a loaded pistol from his pocket, cocked and pointed it at the witness, within a foot-ancf-a-half of him; that the pistol was thus held by appellant in his right hand until witness withdrew from the premises on which he was trespassing. On the part of the appellant it was shown, that the witness refused at first to leave the premises when so ordered, and when appellant attempted to remove him by force the witness acted defiantly, and attempted to kick appellant; that he did not obey the orders of appellant until after the pistol was drawn and exhibited. On the part of the defense the court was asked to instruct the jury, that—
“The pointing of a pistol at a trespasser, by one having lawful authority to eject the trespasser, who is acting in a defiant manner, and assumes a threatening attitude when an attempt is made to eject him by force from premises which he refuses to leave when requested, does, not constitute an assault, if the pointing of a pistol creates no other fear in the mind of the trespasser than that he will be in danger of bodily injury if he resists by force the attempt to eject him.”
The coui’t refused the request, but charged the jury as follows:
“A person having charge of premises, and having authority of preventing persons from trespassing thereon, can, after first requesting the trespasser to leave the premises, and a refusal to do so on his part, use such force as is necessary to remove the trespasser; and if the trespasser use force in resisting the person in charge of the premises, then such person may use force sufficient to overcome the force used by the trespasser. On the other hand, if the defendant drew a,loaded pistol, and presented the same to the prosecuting witness in such a manner as to create a reasonable apprehension of immediate danger in the mind of the said witness, the defendant is guilty of the assault charged, if the apprehension of danger arose from a reasonable cause, and the circumstances were such as to induce fear of immediate danger.”
No error is manifest in this instruction. The instruction refused was not a correct exposition of the law, and that given not prejudicial to the rights of the appellant. If one deliberately kills another with a deadly weapon, in order to prevent a mere trespass on his property, it is a felony. So, if one offers to strike with a deadly weapon, although he announces his purpose not' to finish the act, and commit the homicide if his terms are instantly complied with, (although the terms be such as he has a right to exact, and enforce by the molliter manus imposuit,) he is guilty of an assault. ' The putting in use of a deadly weapon, shows a wanton disregard of human life. Bishop says:
“When the force is such that in no emergency can its use possibly become lawful, an attempt to use it must be unlawful— an unlawful attempt. For example, as no man has a right to defend his property, not speaking here of his castle, by destroying the life of a human being, any exhibition of loaded fire-arms, or other like force, with the intent to employ this force in such defense if the emergency should arise, would be an indictable attempt to commit a felonious homicide, in a case where the party making the aggression on the property was thereby frightened away.” (Crim. Law, vol. 2, § 597.)
The refusal of the prosecuting witness to leave the premises over which he was driving, did not authorize the appellant to kill him; and the pointing of the loaded pistol at him under the circumstances, amounted to an assault. The act was not justifiable.
The jury on their retirement to consider of their verdict, were permitted, without objection, to take with them the charge of the court. By mistake, a paper was folded in the instructions which contained the following words in writing:
“A slightest laying on of hands, if not justifiable, is an assault. The court instructs the jury, that they are the exclusive judges of the testimony in this case, and are also the exclusive judges of the amount of force that the defendant might-.”
The jury received this unauthorized paper into their jury room. It was not shown that the paper was read by any juror, but as it was returned by the foreman, with the other papers taken by them to be read, we assume it was examined and read. Was this such an irregularity as to avoid the verdict, and require a new trial ? We think not. It is true, sec. 275 of the criminal code provides, that “the court may grant a new trial, when the jury has received any evidence, papers, or documents not authorized by the court.” But the section must be liberally construed. Papers handed to and carried out by a jury, containing matter irrelevant or immaterial, so as to make it improbable it could affect the merits of the action, will not necessarily avoid a verdict. Unless the writing could have in some way resulted to the prejudice of the appellant, no error was committed in refusing the new trial. The only complete sentence on the paper, stated a sound proposition of law. The other words, so far as they go, were correct, and seemed to have been copied from the charge of the court. We cannot perceive anything contained in the paper detrimental to the rights of the appellant, and therefore do not think the/ irregularity was of a character to demand a reversal of the judgment.
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.:
On the 11th of March 1870, the creditors ■of Bancroft Bros. & Company, who were in failing circumstances, at Columbus, Ohio, entered into an arrangement in writing with the firm to the effect, that if they would assign a11 the Property they possessed, (describing it,) to William Jamison, in trust for their benefit, and that if Harvey Bancroft and wife would also give to Jamison, as trustee, a mortgage on two certain lots in the city of Emporia, (describing them,) conditioned to make good any deficiency that might occur in the assets of said firm toward the payment of the creditors, then that they would extend the time for payment of their respective claims, one, two, and three years. Thereupon said Bancroft Bros. & Company did convey and assign to said Jamison, (the plaintiff,) in trust for said creditors the assets of said partnership, and Harvey Bancroft and wife did execute and deliver to said Jamison, as trustee, a mortgage on the said lots in Emporia, in which they referred to the said written agreement (of March 11th 1870) of the creditors with Bancroft Bros. & Company, and further set forth, that if the said Jamison should well and truly discharge the duties of his trust, and collect, dispose of, and properly apply'the proceeds of such collections and sales to the liabilities.of said firm, if any portion of said indebtedness should still remain unpaid, and if said firm, after reasonable notice of the amount so unpaid, should fail to pay the same, “then the said Harvey Bancroft' and Harriet N. Bancroft, agree to pay such deficiency in three equal annual payments after the date thereof,” and that in case of their failure to pay, then the said trustee was to sell the mortgaged premises, and out of the money arising from the sale to retain the amount which remained unpaid, upon the said indebtedness of the firm.
This suit was brought in the court below to foreclose' the conveyance of said Harvey Bancroft and his wife. The original petition set forth the agreement of the creditors with the firm, of March 11th 1870 — the conveyance of the lots in the city of Emporia — and alleged, that after a proper application of the assets of the firm on its indebtedness, and after reasonable notice thereof to the firm, there remained unpaid and due the creditors $12,286.74, with interest thereon from August 1871, with the usual averments in such petitions, and a demand for personal judgment against Bancroft and wife, and for the foreclosure of the mortgage, etc. On motion of the defendants, Bancroft and wife and W. T. Soden, the court struck out of the petition the allegation “that said Bancroft and wife agreed and promised to pay the deficiency in three equal annual payments,” and the demand for a personal judgment. Afterward the petition was amended to conform to the ruling of the court, and the said defendants answered by general denial. The case was tried to the court, a jury being waived, and the plaintiff requested the court to find the conclusions of fact and law separately. The follo.wing are the findings of fact:
1st. — At the city of Columbus, in the state of Ohio, on the 11th of March 1870, the plaintiff, William Jamison, was by instrument of writing duly appointed a trustee by certain creditors of the late firm of Bancroft Brothers & Company, for the purposes set out and described in exhibit “A” attached to plaintiff’s petition. Said plaintiff as such trustee immediately qualified and entered upon the discharge of the duties of said trust.
2d.-Immediately upon the acceptance of said trust by said plaintiff, the said firm of Bancroft Bros. & Co. conveyed to said trustee, and put him in the possession of all the property, real and personal, set forth and described in exhibit “A” attached to plaintiff’s petition, for the purposes therein expressed. ■
3d. — On the 28th of March 1870, the defendants Harvey Bancroft and Harriet N. Bancroft his wife, executed and delivered to said plaintiff, trustee aforesaid, their mortgage deed, and thereby conveyed to him lots Nos. 133'aud 135, Commercial street, in the city of Emporia, Lyon county, Kansas, for the purposes, and upon the conditions set forth and described in said mortgage deed, a copy of which is attached to plaintiff’s petition and marked exhibit “B.” At the time of the execution of said mortgage deed by said Harvey Bancroft and his wife, the premises therein conveyed were and for a long time prior thereto had been their homestead.
4th.-On the 5th of October 1874, the said plaintiff as such trustee caused a written notice to be served on Harvey Bancroft and Robt. D. McCarter, members of the firm of Bancroft Bros. & Co., and Harriet N. Bancroft, notifying them that he had collected all the accounts and bills receivable, as far as he had been able to collect the same, and had converted the real estate transferred to him as such trustee into money, and had applied all the proceeds of said accounts, bills receivable, and real estate, upon the indebtedness of said firm of Bancroft Bros. & Co., and that there remained due and unpaid to the creditors of said firm of Bancroft Bros. & Co. the sum of $12,127.74, with interest thereon from August 3d 187T.
5th.-On the 30th of October 1873, the said plaintiff, as such trustee, caused a written notice to be served on Robert E. Sheldon and Carl N. Bancroft, members of the firm of Bancroft Bros. & Co., notifying them that he h'ad, on the 29th of September 1873, completed the collections of all the accounts and bills receivable of Bancroft Bros. & Co., and had converted all the real estate transferred to him as trustee for the benefit of the creditors of Bancroft Bros. & Co., and had applied the proceeds of said collections and sales upon the indebtedness of said firm of Bancroft Bros. & Co., and that after deducting his expenses as trustee, and applying said proceeds upon said indebtedness, there remained still due and unpaid-to the various creditors (naming, them) of said firm of Bancroft Bros. & Co., the sum of $12,286.74, with interest thereon from 3d August 1871.
6th. — Said plaintiff, as trustee aforesaid, has realized out of the assets of the said firm of Bancroft Bros. & Co. the sum of $9,527.92.
7th.-Said plaintiff, as trustee aforesaid, has paid and expended, in expenses and in payment of incumbrances on the property conveyed to him as trustee, the sum of $4,128.94. Said plaintiff, as trustee aforesaid, has paid to the creditors of the firm of Bancroft Bros. & Co. the sum of $5,411.73.
8th.-At the commencement of this action, there remained due-and unpaid to the creditors of the late firm of Bancroft Bros. & Co. the sum of $12,200.74, with interest from August 1st 1871.
9th.-The said creditors of the said firm of Bancroft Bros. & Co., mentioned and set out in the mortgage in question, did, in accordance with the conditions therein contained, extend the time of payment of their said claims against the said firm of Bancroft Bros. & Co. one-third in one year, one-third in two years, and one-third in three years, from the 11th of March 1870.
10th — The sum of $660 is a reasonable attorney-fee for the foreclosure of the mortgage in this action.
11th. — Said plaintiff, as trustee of the creditors of'the firm of Bancroft Bros. & Co., has not well and truly discharged the duties of his said trust, and has not fairly and properly collected, sold, or disposed of the bills receivable, and other property transferred to him as such trustee, with a due regard for the interests of the said firm of Bancroft Bros. & Co.
12th. — On the 29th of September 1873, the said plaintiff, as trustee aforesaid, for the purpose of closing said trust, sold that portion of the bills receivable and accounts in his hands as such trustee, and .not theretofore disposed of, amounting to about $1,700, at public auction, to one Shedd, for $40, and said Shedd failing to take the same under said sale, said plaintiff himself took said bills receivable and accounts, and charged himself in his account with said trust the sum of $60, and credited the trust funds with that amount.
13th.-Among said bills receivable was a note of $200, not then due, and fully secured by mortgage on real estate, which note was afterward, and subsequently to the giving of the notices hereinbefore mentioned, collected by said plaintiff the amount being about $212, and said plaintiff now claims, that he still holds said amount for the benefit of the creditors named in said trust.
14th.-A large proportion of the accounts, bills receivable, and real estate mentioned in said trust-deed, were collected and converted into money by said plaintiff, as such trustee, subsequent to the 11th of March 1871, and prior to the 29th of September 1873.
15th.-The firm of Bancroft Bros. & Company consisted of Harvey Bancroft, Carl N. Bancroft, Robert E. Sheldon, and Robert D. McCarter.
The court thereon found the following conclusions of law:
lst.-The plaintiff, as trustee aforesaid, failed to give reasonable notice to the defendants Harvey Bancroft, Robert D. McCarter, and Harriet N. Bancroft, as to the manner in which he had discharged the duties of his said trust, required of him by the terms of the mortgage sought to be foreclosed in this action.
2d. — The plaintiff is not entitled to a judgment and decree in this action foreclosing the mortgage in question.
3d.-The defendants Harvey Bancroft and Harriet N. Bancroft are entitled to a judgment for their costs herein expended.
The plaintiff requested the court to find the additional amount that might have been realized or secured for the creditors by the exercise of proper diligence in the management of the estate, which the court refused to do. Exceptions were taken to this refusal, to the findings of fact, and of law, by the plaintiff, and the case is brought here by him for review.
The main question of the case is, the legal effect of the llth finding of fact, that, “The said plaintiff, as trustee of the creditors of the firm of Bancroft Brosf & Co., has not well and truly discharged the duties of said trust, and has not fairly and properly collected, sold, or disposed of the bills receivable, and other property transferred to him as such trustee, with a due regard for the interests of the said firm of Bancroft Bros. & Co.” Involved in this, is the character of the written instrument executed by Bancroft and wife,, and set forth in the petition. It is insisted by the counsel of Bancroft and wife, that this instrument is in the nature of a guaranty; that the promise of the latter is conditioned upon Jamison’s faithful discharge of his trust, etc., and the failure of Bancroft Bros. & Co., after due notice, to pay; and that plaintiff’s right to resort to the premises in suit is conditioned upon the plaintiff’s faithfulness, Bancroft Bros. & Co.’s failure to pay, after due notice, and the mortgagors’ own failure to pay; in other words, that the conditions required to be performed by the plaintiff by the agreement of March llth 1870, and the instrument executed by Bancroft and wife, are all conditions precedent to the right to foreclose and sell the premises. This view of the case was upheld and maintained by the trial court, we should judge, from the result and the refusal to make the additional finding asked by the plaintiff. In our judgment, the instrument sued on will not bear this construction. The agreement of March llth 1870, is referred to and made a part of the conveyance executed by Bancroft and wife; and the instrument thus executed and accepted created an obligation upon the plaintiff arising out of a confidence reposed in him to apply the property named faithfully, and according to such confidence. The trust, although conditional, is an express one, as the property, persons, and the purposes of the trust, are specifically pointed out. In dealing with trusts of this character, courts will not allow the trust to fail, or to be defeated, by the refusal or neglect of the trustee to execute the same; nor for any act or omission of the trustee; nor even for want of a trustee. If. the trustee dies, or refuses to accept the trust, or is incapable of performing it, a court of equity will give to the eestuis que trust the proper relief, either by executing it, or appointing a trustee for that purpose. Trust deeds for the payment of debts have always been favorably regarded in equity, and they will be supported, if possible, notwithstanding any informality which might have invalidated them at law. As far as possible the intention of the parties is to be pursued, and the general object and purpose of the trust will be carried out. No technical construction will be permitted to defeat the interests of the beneficiaries, nor can- the trustee after having accepted the trust defeat the same by his own act. Tested by these elementary principles, we must hold the failure of the trustee to properly appropriate the $212 collected on a note belonging to the trust fund not a cause to prevent the execution of the trust.. Even if a greater sum had been retained, or losses have occurred by his action, that is a question between the trustee, Bancroft Bros. & Co., and the creditors. It can make no difference to Bancroft Bros. & Co. how much was retained or lost, if any, by the wrongful action of the trustee, if the firm get credit for it, and the same is applied to reduce their indebtedness, provided of course (as in this case) no claim is made that the misappropriation or loss is in excess of the debts. Bancroft and wife are not any the more injured, nor is the deficiency to be paid any greater, whether the trustee well and truly discharges his trust, and the proceeds of all the property mentioned, in the agreement of March 11th 1870 are applied to lessen the firm’s debts, or the proceeds appropriated by the trustee are charged to him and deducted from the amount of the firm’s indebtedness. In either case, the deficiency, if any, would be the same, and the liability of Bancroft and wife not increased. If the theory of the counsel for the defendants is sustained, then, after the firm has succeeded in getting an extension of the time • for payment of their debts by the transfer and pledge of certain assets, the creditors could be prevented from obtaining the benefits of the trust fund, if the trustee, against their wishes, wrongfully appropriated to himself a single dollar, or a less sum. Such a technical construction cannot be adopted in this case. If the trustee has been unfaithful, he must be held to account for any losses thereby arising. But the trust must be executed, and in no manner made heavier or more burdensome to the grantors by the acts of the trustee. If losses have accrued by his action, or non-action, they are to be deducted from any deficiency claimed. These are to be charged to the trustee, and cannot be collected, from the trust fund described in the instrument sued on. The court below having found that the trustee had not well and truly discharged the duties of his trust, etc., should not have stopped thus short, and so defeated the trust, or held it in abeyance; but that it might be executed, should have further found the amount retained by the trustee, if any, and the losses which occurred by his acts, if any. It clearly committed error in refusing to make the additional finding demanded by the plaintiff. The amount that might have been secured to the creditors, in addition to the sums reported, by the exercise of proper diligence in the management of the estate, could then have been deducted from said $12,127.74.
Thus much, upon the assumption that there was a loss by the conduct and neglect of the trustee in closing up the business of the firm, and that the premises mortgaged are to be treated as a conditional trust fund in the hands oí a court oi equity, which looks to substance rather than forms, and exacts equity rather than the performance of every minute particular of a condition. But in view of the claim for a personal judgment against Bancroft, who was one of the members of the firm, and also against the wife, who only became liable by the execution of the instrument signed by her, it is necessary to further refer to the findings, as to the matters in which neglect of duty is asserted. As to their personal liability, it may be conceded that this rests upon the strict construction of a court of law, and not a court of equity. The question then arises, have the conditions of the trust deed, on which the personal liability of Bancroft and wife depends, been substantially performed? The statement in the 11th finding of fact, that the trustee “has not well and truly discharged the duties oí the trust,” is apparently explained and limited by the findings which immediately follow. The unfaithfulness of the trustee is based upon the following facts: On September 29th 1873, for the purpose of closing the trust, he sold that portion of the bills receivable and accounts in his hands, of the face of $1,700, at public auction to one Shedd for $40, and Shedd failing to take the same under the sale, the trustee took said bills receivable and accounts, and charged himself in his account with the trust, the sum of $60, and credited the trust funds with the amount. He afterward collected (and subsequent to the notices given to the firm of his disposition of the assets) $212 on a note, among said bills receivable, and holds the amount for the benefit of the creditors of the trust. Further, a large proportion of the accounts, bills receivable, and real estate mentioned in the trust, were collected and converted into money by the trustee subsequent to the 11th March 1871, and prior to September 29th 1873. Certainly, the trustee had no legal right to buy in any of the accounts or bills receivable; but as he has collected all that he could from them, and holds the same for the creditors, and no finding having been made that the balance are of any value, and the fact being apparent that one purchaser refused to pay $40 and take them, there seems good reason to conclude that the said $212 is all that can be obtained from them. This, the court can easily deduct from the $12,127.74, and apply to the creditors. Then, as no loss is shown by the delay of the trustee prior to September 29th 1873, either to the trust fund, or to Bancroft and wife, this finding is immaterial, of at least does not affect the issues, even if the estate should have been all settled by March 11th 1871. In this light, the conditions precedent to the personal liability of Bancroft and wife have been substantially complied with. The mere fact, that the trustee has not actually paid over the $212, although he reports that he holds it for the creditors, and is ready to apply it to the indebtedness of the firm, is a mere technical noncompliance, as the court in the case had the right to have the application fully made before judgment. If the findings of fact have been in any way too liberally construed in favor of a compliance of the precedent conditions set forth in the deed of trust on the part of the trustee, by the writer of this opinion, the statement cannot affect the defendants in error injuriously, as a new trial is awarded, and on the re-trial no personal judgment will be allowed under our decision against Bancroft or wife unless the trial court shall find a substantial compliance with these conditions.
The court committed error in its first conclusion of law, concerning its finding of want of reasonable notice to the firm. The conclusion of law is not sustained by the findings of fact. Prior to the commencement of this action, written notice was served (on 30th October 1873j on two members of the firm, and on 5th October 1871 like notice was served on the other members of the firm; and it appears that the trustee did not close up the trust till about September 29th 1873. If there was unnecessary delay in disposing of the trust fund, or assets, and in giving the notice required by the papers, so long as the same was given prior to the suit, and the firm has refused all this time to pay any of the deficiency, and no loss is shown to the fund, or any of the parties, such delay is no reason for a refusal of a sale of the premises in controversy, or a personal judgment for any deficiency. The instrument executed by Bancroft and wife expressly stipulates that they will pay the deficiency of the indebtedness remaining unpaid, after the- application of certain assets to the indebtedness of the firm, and certain notices are given. The court likewise committed error in striking from the petition the averment of such agreement, and that portion of the prayer making a demand for personal judgment. The consideration ^ £rusj- ¿¡eed was ample; and the fact that the real estate was a homestead, cuts no figure in this case. If A. for a sufficient consideration gives a note, secured by a real-estate mortgage on his homestead, and the note and mortgage are voluntarily and duly executed by A. and his wife, it is no defense to either, that the husband received all the consideration; nor can a sale of the mortgaged premises be defeated solely because it includes their homestead. The wife in this case voluntarily signed the conveyance, or deed of trust, and thus assumed alike with her husband all the deficiency of the firm not paid by them or from their assets; and if She thoughtlessly or improvidently executed the instrument, we have no power to relieve her from her misfortune.
A question might be presented, whether the filing of the amended petition did not waive the errors complained of, which caused the modification of the petition before the trial; but as there seems to be some question whether the said $212 was the only sum to be deducted from the $Í2,127.74, and as the plaintiff asked for (but failed to obtain) an additional finding, to which he was entitled, the ease must go back to the court below, and there the error, as to the suppression of a part of the original petition, can be remedied by inserting, with leave of the court, in the amended petition, the portions stricken from the original.
The plaintiff in error asks us to reverse the judgment of the court below, to direct that court to find the amount, if any, that the trustee should account for in addition to that already accounted for, to deduct that sum from the $12,127.74 found to be still due the creditors, also deducting the $212, to render personal judgment against Bancroft and wife for balance, if any, and order the real estate contained in the deed of trust to be sold to pay the same. All of this, considering the record, we cannot do. No judgment will be directed by us to be entered on the findings, in view of the general character of the one relating to the trustee’s unfaithfulness. If the court had found the additional fact asked, and such sum had been, with the $212, less than the $12,200.74 reported, we could have directed judgment for the plaintiff. We can not refer the cause to the court below to make additional findings, without a new trial. We can reverse the judgment for erroneous conclusions of law, and for the error committed in the refusal to make all necessary findings demanded, and we can state the law, as applicable to the case now presented, as direction on another trial. This is all.
The judgment of the district court will be reversed, and a new trial awarded.
All the Justices concurring. | [
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By the Court,
Horton, C. J.:
The judgment in this case must be affirmed, under the following authorities, viz., City of Topeka v. Tuttle, 5 Kas. 311, City of Atchison v. King, 9 Kas. 550, Jansen v. City of Atchison, 16 Kas. 358, City of Ottawa v. Washabaugh, 11 Kas. 124, and City of Wyandotte v. White, 13 Kas. 191, that an incorporated city is liable not only for injuries occasioned by negligently constructing defective sidewalks on its streets, or by causing defects therein after they are made, but also for negligently permitting such defects to continue; and under the authority of the cases of K. P. Rly. Co. v. Kunkel, 17 Kas. 145, and George v. Myers & Green, 18 Kas. 430, and numerous other cases, that, where there is clear and positive testimony sustaining every essential fact, and the verdict has received the approval of the trial court, this court will not disturb such verdict as being against the evidence. Judgment affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The record is challenged by the defendant in error, on the ground that the case-made does not bear the signature of the district judge of the Fourteenth Judicial District, and because said case-made was not settled and signed in the presence of the' parties. These objections are futile. The case-made recites that the trial and proceedings were had before Hon. F. A. Wildman, as judge pro tem. in the case; and such case-made is duly signed by such judge pro tem. No exceptions or objections appear in the record against said Wildman acting as judge pro tem., add the regularity of his selection is not questioned; but it is insisted his qualifications should be contained in the record. This is unnecessary. The record is correctly signed in this respect. M. K. & T. Rly Co. v. City of Fort Scott, 15 Kas. 435; Hunter’s Adm’r v. Ferguson’s Adm’r, 13 Kas. 462.
As to the claimed irregularity in the settlement of the case-made, it is sufficient to say that it appears upon the face of the record that the same was duly served upon the attorney of the said defendant in error, and such attorney suggested his amendments to the case, and therefore the motion to dismiss must be overruled. Weeks v. Medler, 18 Kas. 425.
It is assigned as error, that the deposition of a material witness on the part of defendant in error was read upon the trial against the objectiob of plaintiff in error in violation of section 361 of the civil code, which provides, that “every deposition intended to be read in evidence, on the trial must be filed at least one day before the day of trial.” The trial of the case commenced at 9 o’clock A.M. of November 12th 1875; and the deposition was filed in the court at 11 o’clock a.m. of the 11th of November. This assignment of error must be sustained, because the statute requiring at least one day before the day of trial, means one dear day; and both the day on which the deposition was filed and the day of the trial must be excluded. With this construction the deposition ought not to have been read. Dougherty v. Porter, 18 Kas. 206; Walsh, Trustee, v. Boyle, 30 Md. 266; O’Connor v. Towns, 1 Texas, 107.
Another alleged error was the charge of the court to the jury, that “if they believed from all the evidence in the case, that any witness had intentionally testified falsely in respect to any material fact, it was their duty to disregard the whole of his testimony.” This was error. Shellabarger v. Nafus, 15 Kas. 554; A. T. & S. F. Rld. Co. v. Retford, 18 Kas. 245; Highee v. McMillan, 18 Kas. 133.
■ In view of the necessity for a new trial, and the argument presented by the counsel of the plaintiff upon the instructions given by the court concerning the relation of the parties to the premises, and to each other, it will be beneficial perhaps to say, that where it is alleged and claimed upon the evidence on the part of a defendant, as in this case, that possession was taken of the premises for which rent was sued for, under an agreement with the plaintiff to exchange lands free from all incumbrances, and where each gave the other possession of his real estate, and the possession of the premises by the defendant was continued solely on the representations and promises of the plaintiff to consummate the trade by delivering a deed and clearing off a mortgage-lien on the lands in possession of the defendant under the contract between the parties, and such bargain fails of consummation by the refusal of the plaintiff to free his lands from the mortgage-lien, and make a deed, and defendant is evicted under proceedings to foreclose the said mortgage, and the contract of purchase is thereby abrogated through the fault of the plaintiff, the plaintiff cannot, without the consent of defendant, convert him into a tenant, so as to charge him with rent. Possession in such a case is taken with the understanding of parties that the occu pant shall be owner, and not tenant; and the party through whose fault such an occupant is evicted, cannot, without the consent of the opposing party, turn his oaaui wrong into an advantage, and recover rent for the use and occupation of the premises. Taylor’s Landlord and Tenant, p. 19, § 25.
The judgment of the district court will be reversed, and a new trial awarded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by H. P. Brockett against J. H. Snyder, as principal contractor, and O. C. Pratt, W. H. Cartier and G. W. Westlake as guarantors, upon a certain contract and guaranty, whereby it was agreed that Snyder should deliver to Brockett certain Texas cattle. That part of said contract which includes Snyder’s-agreement reads as follows:
Said Snyder, “ the party of the second part, agrees, between the first and fifteenth day of June 1875, to deliver to the-party of the first part twenty-five head of good, average Texan cows, from four to seven years old; each cow to be with calf, or have one at her side.”
The consideration for this agreement was, a “ black stallion horse, and a two-horse wagon.” Said guaranty reads as follows:
“I hereby acknowledge myself security for J. H. Snyder on above contract, and I guarantee that he will comply with the same, and deliver the cows as agreed. Q. C. Pratt.
“W. H. Cartler.
“G. W. Westlake.”
The plaintiff’s petition set forth the foregoing facts, and alleged that Snyder had failed to comply with his said contract, and failed to deliver said cattle, and then asked for a judgment for $625 damages. Snyder, Cartier, and Westlake made default; but Pratt answered, admitting in his answer the execution of said contract and guaranty, but alleging that after the execution thereof Brockett agreed with Snyder, the principal, for an extension of the time for the delivery of said cattle, and thereby released Pratt, as surety, from all obligation or liability on his said guaranty. The plaintiff replied to this answer by filing a general denial. A trial was had upon these pleadings before the court and a jury. The plaintiff was introduced as a witness in his own behalf. He testified in substance that said cattle were never delivered, and that such cattle were worth $25 per head. This was all the evidence introduced in the case. The defendant offered to prove by this witness, on cross-examination, that he and Snyder had made a valid agreement for the extension of the time for the delivery of said cattle, but the plaintiff objected on the ground that it was not a proper subject of cross-examination, and the court below sustained the objection. This is the first ruling of the court below of which the plaintiff in error, who was defendant below, now complains. We think the ruling was correct.
After the plaintiff rested, the defendant demurred to the evidence, on the ground that it did not prove a cause of action. The court below overruled the demurrer. This is second ruling of which the plaintiff in error complains. We think that this ruling was also correct. The defendant claimed that no cause of action had been proved, merely because no demand for the cattle had been proved. The cattle however were not to be delivered upon demand. Snyder had no right to wait for a demand. It was his duty to deliver the cattle, or to tender them, or at least to try to tender them, at some time between the first and the fifteenth of June 1875, without waiting for any demand. They were not due on demand, but were due without demand all the time .from June 1st to June 15th; and after June 15th, they were over-due.
After said demurrer was overruled the case was submitted to the jury, and the jury found in favor of the plaintiff and against the defendant, and assessed the damages at $664.42. The defendant then moved the court for a new trial, upon various grounds, which motion was overruled, and the court then rendered judgment in favor of the plaintiff and against all the defendants for said sum of $664.42. The defendant Pratt now claims that this was error, and we think that in part it was. The plaintiff only claimed in his petition a judgment for $625, and this was all that the court could properly render a judgment for. The plaintiff Brockett however now offers to remit the excess over $625. The cause will therefore be remanded to the court below, with the order that said excess be deducted, and that the judgment be so modified as to make it a judgment for only $625, and costs.
The costs of this court will be equally divided between the parties.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Sapp against the board of county commissioners of Brown county, for the recovery of $281.70, alleged to be due on account of certain taxes paid by Sapp and his assignors into' the county treasury of said county for the years from 1861 up to 1869. Many of the facts of this case will be found stated in the case of Sapp v. Morrill, 8 Kas. 677; for that case and this grew out of the same original transactions. The facts necessary now to be stated are substantially as follows: In 1861 taxes were levied upon two certain pieces of land in Brown county, and in May 1862 these lands were sold at a tax sale for such taxes, Brown county being the purchaser. It is admitted that this tax sale was legal and valid. On the 1st of June 1866, A. Webb & Co., for the purpose of procuring the tax titles then accruing against said lands, paid into the county treasury of Brown county the sum of $73.13 — that being the amount of taxes, penalties, interest and costs then due on said lands — and in consideration therefor, received from the county treasurer tax-sale certificates for said lands, which tax-sale certificates were duly assigned to them by the county clerk. It is admitted that these tax-sale certificates, and their assignments, were wholly without authority, and were void. On the 14th of July 1866, tax deeds were issued to A. Webb & Co. on these tax-sale certificates, which tax deeds are also admitted to be unauthorized and void. Afterward, (as the parties in this case admit,) said lands were deeded to Sapp by a quitclaim deed from A. Webb & Co. These deeds were all duly recorded in the office of the register of deeds. Sapp and his assignors, (or rather, grantors,) paid all the taxes levied on said lands up to the year 1869. Afterward, and on 4th June 1870, before any other taxes became due on said lands, Morrill commenced his said action against Sapp, thereby raising the question as to the validity of Sapp's tax title to said lands; and for that reason Sapp has not paid any taxes thereon since. It is admitted, that, for all the money paid by Sapp and his grantors into the county treasury, neither he nor they have ever received any benefit or consideration; that their tax certificates and tax deeds were and are wholly void, giving to them no title to or interest in said lands. The questions then arise: Must Sapp and his grantors lose this money? and if they are so to lose it, for whose benefit must the loss occur, that of the public, or of the owner of the lands? but if they are not to lose it, then what remedy have they? It is not necessary for us to decide all of these questions now, and in this case. Indeed, it is only necessary for us now to decide whether Sapp has the remedy which he has pursued in this action. It is not necessary to decide whether he or his grantors have any other remedy; and if he and his grantors are to lose all the money which they have paid into the county treasury, it is not necessary for us to decide whether such loss inures to the benefit of the public, or to the benefit of the owner of said lands. But upon this last question see Haxton v. Harris, 19 Kas. 511.
The present action is by Sapp to recover said money back from Brown county. Can he maintain such an action ? This is the only question in this case. As Sapp and his grantors were fully cognizant of all the facts having any connection with the payment of said money, we suppose it is clear that he cannot recover it back upon any general principles of law. (Phillips v. Jefferson Co., 5 Kas. 412; Wabaunsee Co. v. Walker, 8 Kas. 431; K. P. Rly. Co. v. Wyandotte Co., 16 Kas. 587.) But Sapp relies principally upon a certain statute which reads as follows:
“If, after the conveyance of'any land sold for taxes, it shall be discovered or adjudged that the sale was invalid, the county commissioners shall cause the money paid therefor oh the sale, and all subsequent taxes and charges paid thereon by the purchaser or his assigns, to be refunded, with interest on the whole amount at the rate of ten per cent, per annum, upon the delivery ot the deed to be canceled.” — [Laws of 1866, page 280, §85; Gen. Stat. 1058, §121.
The tax law of 1876 was passed since the judgment was rendered in this case. The tax deeds in this case were duly delivered up to be canceled. Sapp claims that the words “sold,” and “sale,” as used in the foregoing statute, relate to and include the subsequent assignments of the tax-sale certificates by the county clerk, as well as the original sale of the land made by the county treasurer; and that the word “purchaser,” as used in said statute is a comprehensive term including the subsequent assignee of the county, as well as the original purchaser from the county treasurer at the original tax sale. Evidently however, the legislature did not intend any such thing. Everywhere in the statutes relating to tax sales, (passed prior to the rendition of the judgment in this case,) these words seem to have been used with reference to the original tax sale, and not with reference to assignments. The legislature in passing such statutes did not seem to have in contemplation void assignments made upon valid tax sales. But everywhere they seem to have had in contemplation only void tax sales proper, and such sales only as were void for some error or irregularity existing at the time or before the making of such sales. In the present case the sale was valid, and it was only the subsequent assignment of the title, and of the tax-sale certificates, that were void.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The plaintiff, Weichselbaum, was the owner of three certain buildings, situated on the Fort Larned military reservation, in Pawnee county. On 13th March 1875, he rented the buildings to the defendant Curlett, for one year from the 1st of May following, at a monthly rental of $17.50. The defendant paid the rent until 29th February 1876, at which time, and while he was occupying the buildings as a tenant of plaintiff, he purchased them at a tax sale held that day — the buildings having been sold as personal property, for personal taxes. The defendant has continued to occupy the buildings, and has removed material from them of the value of $26.50. This action was brought by the plaintiff to recover of the defendant rent for the buildings from February 29th to the 1st of August 1876, and for damages for the removal of parts of the buildings. Upon the foregoing facts, the district court found, “as a conclusion of law, that the contract of lease between plaintiff and defendant was an illegal contract, and therefore cannot be enforced”— and gave judgment in favor of the defendant.
The judgment of the court below in favor of the defendant must be affirmed, and the claims of the plaintiff denied; but we base our decision upon different reasons from those given by the district court. None of the testimony produced upon the trial has been brought to this court, and we have nothing but the pleadings, and conclusions of fact, to consider. At the time of the tax sale, all the rent had been paid. Curlett was under no obligations to pay the taxes, or discharge the property from the lien; and he therefore had the right to purchase the buildings at such sale, to thereafter occupy them as his own, and after such sale to resist the recovery of his former landlord for rent, or damages to the property. While a tenant cannot dispute the title of his landlord so long as it remains as it was at the time the tenancy commenced, he may show that the title under which he entered has expired, or has been extinguished. When under no obligation or duty to discharge the taxes on the property, he may purchase it at a tax sale during his term. Taylor’s Land. & Ten., § 705; Simers v. Salters, 3 Denio, 212; Jackson v. Rowland, 6 Wend. 666; Ferguson v. Etter, 21 Ark. 160; Bettisin v. Budd, 17 Ark. 546. After the tax sale of 29th February 1876, the plaintiff had no interest in the buildings, and the defendant was not answerable for rent for his occupation or use of them to him.
Counsel for plaintiff attempts to raise the question, that the tax sale was void, but sufficient proceedings are not set forth to bring this matter under review. All the presumptions are in favor of the judgment of the district court; and upon the conclusions of fact found, we must hold all the tax proceedings valid, and that the tax sale passed to the purchaser a good title. If these proceedings were void for any reason, it was incumbent upon the plaintiff to have obtained findings of fact fairly presenting the alleged defects. This was not done. That the court below gave a wrong reason for a right decision, does not affect the material rights of the plaintiff, and is no cause for a reversal.
The j udgment of the district court will be affirmed, with costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The plaintiff in error was plaintiff in the court below. He commenced an action of forcible detainer against the defendant, before a justice of the peace in Atchison county, where a trial was had, resulting in favor of the plaintiff- From this judgment, the defendant appealed district court, where amended pleadings were filed by order of the court, and a new trial was had. On the trial the evidence showed that the plaintiff was the purchaser of the premises at a judicial sale had in pursuance of a decree of foreclosure of the district court of Atchison county; that the defendant was one of the judgment-debtors in the foreclosure action, and in possession of the premises at the time of the rendition of the decree by virtue of which the sale was made. The plaintiff presented in evidence the sheriff’s deed, from which he claimed to derive title, dated 13th July 1874, and the journal-entry of the confirmation of the sale, of the date of 16th July 1874, and then introduced the clerk of the court, who testified as follows:
“I was clerk of the district court'of Atchison county at the June term of said court, 1874, and all the journal-entries of that term are in my handwriting. I recognize the journal entry of confirmation of sale in the. case of Eunice Campbell v. Mary Ann Robinson, Frederick Robinson, and John M. Cain. I also recognize my handwriting in filling up and taking acknowledgment of the sheriff’s deed, made by Owen E. Seip, sheriff, to John M. Cain, purchaser of the real estate under an order of sale of the district court of Atchison county in the case of Eunice Campbell v. Mary Ann Robinson, Frederick Robinson, and John M. Cain, which sale was confirmed at the June term of the court, Í874. I do not recollect the exact date on which said confirmation was made, but I am reasonably certain that said confirmation was made on the 11th day of July 1874, and am positively certain that the confirmation was made prior to the execution of the sheriff’s deed by Owen E. Seip to John M. Cain, for the land mentioned and described in said deed, and embraced in the order of confirmation. Of this I am positive, for the reason, that I find the deed and certificate of acknowledgment in my handwriting, as I usually filled out and took acknowledgments at that time. And I know that I never filled out or took acknowledgments of any sheriff’s deed till after the confirmation of sale in any case. There is an apparent discrepancy in the dates of the deed, and in the journal-entry of confirmation. The journal-entry, at the top of the page, appears as though it had been entered of the 16th of July, whereas the deed appears to have been executed on the 13th of July. This probably arose in this manner: it very often happened that the journal was not written up for some days after the proceedings in the court took place. This undoubtedly was the fact in this case. Possibly it was because I had not been apprised, whether or not the costs had been paid, in which case I may have delayed making the journal-entry of the confirmation till I knew the fact that the costs had been paid.”
Plaintiff then offered Owen- E. Seip as a witness, who testified:
“I was the duly-elected, qualified and acting sheriff of Atchison county, during all the year 1874. I remember the suit of Eunice Campbell v. Mary Ann Robinson, Frederick Robinson, and John M. Cain, in the district court for said county. There was a foreclosure of a mortgage and order of sale. I sold the property as sheriff, properly, and executed the deed therefor to John M. Cain, plaintiff in this suit. I reported the sale to the court, and after it was confirmed I executed the sheriff’s deed therefor. I know I did not execute the deed before the sale was confirmed by the court. I am fully satisfied that I executed this deed (here deed was shown to witness, and identified,) on the 13th day of July 1874. I delivered the deed to John M. Cain, the plaintiff in this suit.’’
After all of this testimony had been presented, the defendant moved the court to strike out the sheriff’s deed offered in evidence, for the reason, as alleged by him, that the records of the court, introduced in evidence, showed'that there never was any confirmation of the pretended sheriff’s sale prior to the execution of the deed, which motion the court sustained; and after the introduction of certain testimony by the plaintiff, tending to prove that defendant had leased the premises of plaintiff after the date of the deed, and had recognized such plaintiff as his landlord, the court sustained a demurrer to the plaintiff’s evidence, discharged the jury impanneled to try the cause, and gave judgment for the defendant. These rulings of the court are assigned as error, and we are asked to review the same.
1. Sheriff's deed;when executed, and delivered. 2 presumption from date. The assignments of error are well taken. In the condition of the testimony, it should have been left to the jury, under proper instructions, to say what effect should have been given it, and whether, on the whole, the deed had been executed, that is, delivered, after confirmation. _ ; ^ _ ; J _ The date of the deed seems to have been con-elusive of its date of execution. Yet the evidence of both the clerk and sheriff states the execution was after the confirmation ; and but for the single statement of the sheriff, that the execution of the deed was on July 13th, all of the testimony is in harmony with the theory that the proceedings of confirmation were had in court on July 11th, the deed then written out and signed, the entry of confirmation made July 16th, and the final execution of the deed (that is, its delivery,) had after such date. Even the statement of its execution on July 13th, is explained, if thereby the sheriff meant that on that date it was prepared for delivery, but not then delivered. -^-n ^Ie absence of all evidence to the contrary, the presumption is, that a deed is executed of its date. Babbitt v. Johnson, 15 Kas. 252; Clark v. Akers, 16 Kas. 166. But in this case we have the direct evidence of the clerk and sheriff, that the deed was not executed till after the confirmation, subject to the contradiction above mentioned; and also, the presumption that proceedings of a court and its officers are done regularly, and in their proper order. While it is true, that the sheriff has no right to execute the deed without the direction of the court, and the record is presumed to speak absolute verity, the fact that the deed is dated before the confirmation is not conclusive that it was executed before such confirmation. The sheriff might have filled in the blanks of the deed and signed it before the entry of the confirmation, and then after the confirmation have delivered it, or in other words, have then executed it. The execution of the deed includes the delivery, as well as the writing and signing. Delivery is essential to make a deed effective. A deed not delivered, is the same as no deed. Prior to the entry of confirmation of the sale, on July 16th, the sheriff may have held the deed in his hands all made out and signed by him-; but it would then be considered an unexecuted instrument, of no vitality or effect. After the confirmation, he could deliver it to the purchaser, and thus execute the deed. The deed could have no force in law until after the confirmation, because such a deed can only be made in pursuance of the directions of the court, after a careful examination of the proceedings of the officer making the sale. The mere fact, however, that the deed in this instance was dated during the term of the court at which the confirmation was had, and a few days prior thereto, was not (in view of the other testimony,) conclusive of its execution prior to such confirmation. The evidence as to the delivery was not as specific as it might have been, but on the whole, we cannot construe the evidence to mean, a delivery before confirmation. The record shows it was not filed in the office of register of deeds till July 22d, several days after confirmation; and the jury should have been permitted to decide if the delivery was before, or after, the confirmation. If dated and signed previous to the confirmation, but not delivered till after July 16th, (the date of confirmation,) the deed was not- void.
In the event, that it shall be ascertained that the deed was actually delivered prior to July 16th 1874; that the proceedings were' had in the court concerning the confirmation on the 11th of July, and were erroneously entered on the journal under the date of July 16th, (and the minutes of the judge show this to be true,) we would suggest the correction of the journal by a nuno pro tuno order, so that it shall conform with the facts in the premises. It is unnecessary to pass upon the other questions presented, as a new trial must take place.
The point made by the counsel for the defendant, that the rejection of the deed was a harmless error, is not sustained by the pleadings, nor the testimony offered, nor the result had in the case before the trial court. If the deed had been retained as testimony, the demurrer to the evidence could not have been sustained.
We think the judge, in withdrawing the deed from the consideration of the jury, and then sustaining a demurrer to the evidence, usurped the province of the jury, and in so doing, committed error, which calls for a reversal of the judgment.
The judgment will be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The question presented for our consideration is, whether the mere filing with the probate court having the administration of an estate, of a certified transcript of a judgment rendered against the deceased in his lifetime, and the subsequent classification of the demand by said court, is a valid exhibition and establishment of the claim against the estate. In the absence of the notices named in sections 84 and 91 of the administrator’s act, (ch. 37, Gen. Stat. 449,) and the affidavit required by sec. 88 of the same chapter, and without waiver on the part of the administratrix, or appearance by her, had the probate court any jurisdiction to allow or classify the judgment? Our answer to these interrogatories must be in the negative. Judgments rendered in the lifetime of the deceased, and against him, must be presented and allowed as other demands; and sections 84 and 91 of said ch. 37 are as applicable to the exhibition, presentation, and allowance of such demands, as to other claims. An administrator, in the interest of the estate, should have the opportunity to show that such judgment during the lifetime of the intestate had been paid, in whole or in part; and if it be true, that nothing remains due thereon, after-the other provisions of the statute are complied with, in regard to the notices and affidavit required prior to the allowance of the judgment, on the hearing to establish such claim, a certified copy of the judgment would be sufficient proof of the demand, unless the opposing interest should show that 'the holder of such judgment had not given credit to the estate for all payments and offsets to which it was entitled, or some other good defense'thereto was established.
As there was no attempt on the part of defendants in error prior to the institution of this action to comply with sections ,91 and 92 of said ch. 37, and as the administratrix never appeared in the probate court on the presentation of said demand, and never by writing waived the service of the notice necessary to be given prior to the establishment of the claim, the probate court had no jurisdiction, on said 13th of September 1875, or at any other date, to allow or classify the judgment as a demand against the estate of James A. Cruise, 'deceased. As this demand has never been established against said estate, in any of the forms provided by the statutes, the administratrix had been guilty of no violation of the conditions of her official bond when this action was commenced, and the judgment rendered was wrongfully given. These views do not conflict with enforcing a judgment rendered against the deceased in his lifetime which is a lien upon the real estate as provided in subdivision fourth of sec. 80, ch. 37, nor of having such a judgment revived against the administratrix. (Sec. 439, civil code.)
The cases cited from the Missouri courts by counsel of defendants in error, are not authority, because, in the adoption of sec. 8, Gen. Stat. of Mo. 1865, p.502, the following words, viz., “and shall also exhibit copies of all judgments and decrees rendered in the lifetime of the deceased to the court having probate jurisdiction,”'were omitted in sec. 86, Gen. Stat. of Kas., p.449, which otherwise corresponds with said section 8. Notwithstanding this material difference, it .was originally decided in Missouri that in presenting a judgment rendered against a deceased in his lifetime for allowance against an estate, the same notice is required, as in the presentation of other demands; and this authority is cited in Wagner’s Stat. Mo., edition of 1872, page 102, sec. 8, note 3; Ryan v. Mundy, 14 Mo. 458. It is true, that the subsequent decisions of that state are in conflict with what is stated in that opinion; but these, for the reasons above stated, are not controlling with us.
The judgment of the district court will be reversed, the case remanded, and the court below is instructed to overrule the demurrer to the second, sixth and seventh defenses.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action concerning damages on the laying out of a public road. The board of county commissioners allowed Peter Tobie twenty-five dollars as his damages for the location of the road through his land, and being dissatisfied, he appealed to the district court of Brown county. During the pendency of the action there, he died, and the case was revived and prosecuted in the name of his executrix, the plaintiff in error. On the trial, the jury returned a general verdict for the appellant for $129.33, as the amount of the recovery against the county. The jury also returned with their general verdict certain special findings of fact, to the effect that the actual value of the land taken by the location of the public road, regardless of all benefits which would accrue to the land by reason thereof, was $129.33; that the value of building a fence suitable to protect appellant’s field would be $80, and that the amount of the benefit which would accrue to the farm by reason of the location of said road, in increasing its value, was $200. It was not shown by the evidence, nor the findings of fact, that the proposed road increased the value of the other lands in the same vicinity, or that such benefits were in common with the rest of the public. The board of county commissioners thereupon filed their motion to have judgment rendered for $9.33 against them, and that the costs be taxed to appellant. Upon the hearing of this motion, at the trial term, it was overruled, and upon the application of appellant in that court judgment was immediately rendered against the board of county commissioners for $129.33, and costs. At the October term 1875, the court stated to the counsel of the respective parties to the action, that if an application should be made upon the part of the board of county commissioners to reduce the amount of the said judgment of $129.33 to $9.33, as originally asked for in the motion of the board at the August term, the application would be granted. In pursuance of this intimation, at the April term 1876, the defendants in error filed their written motion and application to have the judgment changed and modified in accordance with the special findings of fact, which was resisted by the plaintiff in error, and upon the hearing, the court at said April term, modified the judgment by reducing it to $9.33, as the amount of the recovery for damages, and assessed the costs against the plaintiff in error; and this change or modification of the judgment is complained of.
The original judgment was clearly irregular, and the court, in the first instance, should have rendered the judgment now of record. The direct and special benefits which accrued to the party claiming the damages by the location of the public road, as found by the jury, were $200. The value of the land taken was $129.33, and the cost of the new fence needed by the location of the road was $80, which together aggregated $209.33. These damages reduced by the direct increase in the value of the land, leave but $9.33 as the sum to which the plaintiff in error was entitled on the special findings. (Comm’rs of Pottawatomie County v. O’Sullivan, 17 Kas. 58.) That a landowner may have a special interest in a public highway, not in common with every citizen in the community through which the road runs, see Venard v. Cross, 8 Kas. 248.
The sum for which judgment was finally and properly given, ($9.33,) being less than the original allowance, the appellant was not entitled to costs. The special findings of facts being inconsis tent with the general verdict, the former controls the latter, and the original judgment was erroneously entered.
Our code authorizes the district courts to correct errors and irregularities at and after the term at which the judg«lent or order was made, and the motion was for alteration and modification of the judgment of August 1875, and was the proper proceeding, as the error to be corrected was one pointed out in subdivision three of section 568 of the civil code. Small v. Douthitt, 1 Kas. 335.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to set aside a conveyance, as fraudulent. A decree was rendered as prayed for, and this proceeding in error is brought to set asidé that decree.
A motion was made in this court to strike out the transcript, and dismiss the petition in error. This motion, as an entirety, was overruled, because the pleadings and journal entries were properly authenticated. But so far as it attacks the so-called “ bill of exceptions, or case-made,” it must be sustained. That has no validity. The motion for a new trial was overruled on February 12th, at the January term, and sixty days given to make a case. On April 7th, there was filed in the clerk’s office a paper styled in the caption, a “bill of exceptions,” and in the certificate of the judge, a “bill of exceptions, or case-made.” It was not a case-made, because not complete in itself, and only purporting to include the testimony; because it does not show any service on the opposite party, any appearance or suggestions of amendment by him, and was signed in advance of time. It was not a valid bill of exceptions, because not signed and filed during the term. Shumaker v. O’Brien, 19 Kas. 476; Transportation Co. v. Palmer, 19 Kas. 471. We may therefore dismiss from our consideration all matters alleging error in the admission or exclusion of testimony, and the question of the sufficiency of the testimony to support the findings.
jury was Upon the pleadings and journal entries some important questions however arise. This was not a case in which a matter of right. Nevertheless, one was called “for the purpose of passing upon certain questions to be submitted to them.” They did answer all the questions submitted to them, or at least all that the record shows were submitted. It would seem from the numbering of the questions, that there were three more than those on the record, but whether they were withdrawn by counsel or refused submission by the court, or what they were, is not disclosed. After the jury had answered these questions, no one of which called for anything like a general finding upon the issues, the court upon a motion for judgment found certain facts, and upon the answers and findings rendered a decree in favor of the plaintiff. And the contention of counsel is, that in this the court erred — that “the whole and sole duty of the court was to draw from their findings his conclusion of law.”. This is a mistake. The record shows no submission of the entire case to the jury, but only of “certain questions.” And the court has the right in an action like this to submit part of a case to a jury, and itself find as to the remainder. We see no conflict as to any substantial matter between the findings of the court and the answers of the jury. Some seem to cover the same matter, and may therefore have been unnecessary; but most are upon points and facts untouched by the jury. Carlin v. Donegan, 15 Kas. 495.
We come therefore to the main question, and that is, whether upon the facts as settled by the jury and the court the decree was proper. These facts are substantially as follows: The conveyance was from father to daughter, made after the former’s liability to the plaintiff had become fixed, and three days before suit thereon. No money was paid; and the only consideration claimed was, that the father had received from his wife money which he had never paid back to her, and which upon her death descended to the daughter, and was paid to her by this conveyance. Some eight or nine years prior, the wife had sold a certain hotel property in Atchison; the price, $2,000, was received by the husband, and used by him in the management and conduct of his business, with her assent, and without any account or statement of indebtedness, or agreement or understanding that it should be treated as a loan, or afterward returned to her. He removed with his family to Alabama, engaged in business, was unsuccessful, and returned to Kansas “much broken in pecuniary circumstances.” Here he again engaged in business with some success. Some five or six years prior to the conveyance, his wife died, leaving six children surviving. The same day that he made this conveyance, or the day before, he deeded other property of which he held the legal title to other children. This left him his homestead, and a half interest in a drug store, valued at $850, and some improvements upon a claim, the title to which was in a railroad company. He shortly after sold his interest in the drug store, but used no part of the proceeds in paying this indebtedness. The jury found that at the time of the conveyance he had personal or other property sufficient to pay plaintiff’s claim, and subject to be appropriated therefor. They did not specify the property he possessed, but the court did, as above. The claim of plaintiff was between $950 and $1,000. We have not given the facts in detail, but simply the outlines, so that the character of the questions involved may be seen. The jury answered twenty-four questions, and the court made seventeen special findings.
The contention of counsel for plaintiff in error is, that the conveyance was not fraudulent, because in discharge of a subsisting bona fide obligation, and also because, notwithstanding 1^ the grantor had property remaining sufficient £0 discharge his indebtedness. Upon the first claim we remark, that there is not enough in the- facts as found to compel the conclusion of an existing indebtedness. If A. places money in B.’s hands, and the latter with A.’s knowledge mingles it with his own funds and uses the joint amount in a business enterprise, there may be either an indebtedness of B. to A. for the specific amount, and interest, or a gift from A. to B., or there may be a joint investment with profits and losses to be shared. If the latter, and the entire investment be lost, it is A.’s ldss as well as B.’s, and the former has no legal claim upon the latter. This is true even where the parties are strangers except in the single transaction. And whether the transaction is to be deemed a loan, a gift, or a partnership, will depend upon the understanding and agreement of the parties, and be determined by circumstances attending it. Now the facts ag founq jn this case exclude the idea of any loan. They would tend strongly in the same direction if the parties were strangers, and not husband and wife. There was no account or statement of indebtedness, no agreement or understanding that it should be treated as a loan, or ever repaid. If the parties did not consider it a loan, why should the law be now invoked to so regard it? It is evident that the wife permitted the husband to take and use this money, not with the idea of his having a separate estate and separate interests, and of making a loan to him, but regarding her interests and his as one, and in furtherance of that single interest, and to promote the common good of the family. The law still regards husband and wife as one, and while it permits it, does not compel separate estates. There is nothing to prevent the Avife from using her separate property for the benefit of the family, or from giving it to her husband. When therefore husband and wife mingle funds derived from their separate property, and use them as a single fund in the custody and control of one of them, without agreement or understanding of loan from either to the other, the law will regard the transaction as involving a gift, rather than a loan. True, it may imply a loan, and a promise of repayment, even where there was no express agreement; but the circumstances must be clearer and stronger than where the transaction is betAAreen man and man. Having received a gift, she may return the gift; but he returns it as a gift, and not as payment of a debt. It is a Aroluntary act on his part; and as it affects creditors, must be treated as a purely voluntary act.
With reference to the second claim, avO remark, that the answei’s returned by the jury might leave the matter uncertain, for they give no figures; but the facts as found by the court, showing specifically what property the grantor retained, and of what value, are sufficient to sustain the conclusion. voluntary conveyance will not be upheld simply because it is shown that the grantor retained pr0perty of value just about equal to his indebtedness. It must appear that the property retained furnished reasonable provision for the satisfaction of the debts, taking into account its accessibility, the expenses of sale, and all the circumstances of the case. In Bump on Fraudulent Conveyances, p.296, it is said, that, “to rebut the presumption of fraud, the proof must be' clear and satisfactory. If there is a reasonable doubt of the adequacy of the grantor’s means, then the voluntary conveyance must fall, for the effect of it is to delay and hinder his creditors. It is incumbent on the donee to show a case not only without taints, but free from suspicion. The condition of the donor must be shown to be such that a prudent mán, with an honest purpose, and a due regard to the rights of his creditors, could have made the gift. This is to be ascertained not merely by taking an account of the grantor’s debts and credits, and striking a bal anee between them, but by an examination of the general state of his affairs.” And again, on the next page: “A scanty provision for the payment of debts, will not for that reason render the conveyance valid. Property worth $7,250 has been deemed insufficient to meet debts amounting to $6,848, (citing Black v. Bander, 1 Jones, N. C. 67,) and property worth $48,000 has been held not to be ample to meet debts to the amount of $42,000,” (citing Crumbaugh v. Kagler, 2 Ohio St. 373; Miller v. Wilson, 15 Ohio St. 108.) In the case from 2 Ohio St., it is held, that “such a gift is never upheld unless property is retained clearly and beyond doubt sufficient to pay all the donor’s debts.” And a number of authorities are cited in support of the decision. See also, Churchill v. Wells, 7 Cold. (Tenn.) 364. These authorities are clear and decisive. And no other rule would protect creditors. In this very case, the execution was, notwithstanding the finding of the jury as to Hunt’s means, returned nulla bona. Hunt told the sheriff while he had the execution that he had no means; and if now he could uphold his voluntary conveyance by proof that he had some personal property of about the amount of the debt which could have been seized, the creditor may whistle for his debt. The law will uphold voluntary conveyances only when they cast no reasonable barrier in the way of creditors. A man may give away whatever he sees fit, provided he first pay or make adequate provision for his honest debts. This we think is not shown in this case, and therefore the conveyance must fall. Notwithstanding the testimony in the so-called bill of exceptions is not properly before us, we have read it carefully through, and the threats and statements of the grantor, as shown in it, only make clearer the intent on the part of Hunt by the conveyance to delay and defeat Spencer in the collection of his debt.
We see no error in the conclusion of the court, and the judgment will be affirmed.
All the Justices concurring; | [
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The opinion of the court was delivered by
Brewer, J.:
This is one of those strangely imperfect records, upon which it is simply impossible to predicate error in the rulings of the district court. The action was, in substance, a controversy between two church organizations for the possession of the church-building. Commenced as an action of forcible detainer before a justice of the peace, it was transferred at the instance of the defendants, now plaintiffs in error, to the district court. After judgment, leave was given to make a case, which some eight months thereafter was, with amendments, filed in the clerk’s office. The errors alleged are in the instructions, the admission of testimony, and its sufficiency to sustain the judgment. As to the instructions, it nowhere appears that all are preserved. On the contrary, it affirmatively appears that some were given which are not before us. The 19th amendment to the case-made, suggested and allowed, directs the insertion of the “ instructions given by the court for the defendants,” upon which the clerk simply minutes the statement, that “no instructions given by the court can be found by clerk.” How far these instructions, whose existence is affirmed by the judge, and which by his allowance are made part of the case, but which are in fact wanting from the record, may have affected the case, we can only conjecture. The record only contains such of the instructions asked by the defendants as were refused. Perhaps these were refused because in effect but repetitions of others asked and given.
So, as to the testimony. The case as prepared by plaintiffs in error recites that the parties offered evidence “tending to show” various matters, without narrating the testimony as it was given. The amendments allowed by the court direct the insertion of certain articles of association, and certain deeds from the original owner of the land, which articles and deeds are not inserted, but in lieu thereof is the minute of the clerk that they cannot be found by him. Now the most of the instructions given at the instance of the plaintiff are based upon these deeds and articles. How can we say that the court misconstrued them, or that they were not in fact decisive of the case? It would be useless to inquire whether any particular ruling of the court in the admission of testimony was wrong, when these instruments which are apparently the foundation of plaintiff’s claim, and may have been decisive of the case, and which were by the court directed to be made a part of the case, are omitted from the record. "We must have a complete record before we can hold that the trial court erred in its ruling. Wilson v. Fuller, 9 Kas. 176; Morgan v. Chapple, 10 Kas. 217; Da Lee v. Blackburn, 11 Kas. 190; Ferguson v. Graves, 12 Kas. 39; Railroad Co. v. Brown, 14 Kas. 469; A. & N. Rld. Co. v. Wagner, 19 Kas. 335.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by for the killing of a cow. There are probably two substantial questions in the case: one, whether the plaintiff in error can be made liable at all under the provisions of said law, and the other, as to the sufficiency of the demand. Of these in their order. The first appears upon the face of the bill of
Brewer, J.:
This was an action under the laws of 1874, particulars. The action was commenced in a justice’s court. The bill of particulars was entitled, as to the parties, “William A. Kendall, plaintiff, vs. .The Union Trust Company of New York, Trustee of The Missouri, Kansas & Texas Railway, defendant.” And the body thereof is as follows:
“The said plaintiff, William A. Kendall, complains of the said defendant, for that the said defendant before and at the time of the committing of the grievances hereinafter mentioned, to-wit, on or about the 6th of August 1876, was a corporation duly organized under the laws of the state of New York, and was engaged in running and operating a certain railroad, leading from Sedalia, Missouri, to Parsons, Kansas, and of certain cars and locomotives running thereon; that said railroad was not inclosed with a good and lawful fence to prevent animals from being on said road. And said plaintiff further saith, that he was then, to-wit, on or about the 6th of August 1876, the owner of a certain milch cow of the value of thirty dollars; that said cow, without the fault of said plaintiff, strayed in and upon the track and ground occupied by the railroad of said defendant. Said plaintiff further saith, that the said defendant, by its agents and servants, not regarding its duty in this respect, so ran and managed the said locomotive and cars that the same ran against and over said cow of said plaintiff, and killed and destroyed the same, to the damage of said plaintiff $30. The said plaintiff further says, that after the killing of said cow by the defendant as aforesaid, he, plaintiff, demanded of the agent of said defendant the value of said cow, which said demand was made more than thirty days prior to the commencement of this action; but plaintiff says said defendant then and ever since has failed, neglected, and refused to pay to said plaintiff the said sum of thirty dollars, or any part thereof. Wherefore said plaintiff demands judgment.”
The statute provides, that “ every railway company or corporation in this state, and every assignee and lessee of such company or corporation, shall be liable,” etc. And the contention of counsel is, that the Union Trust Company is not alleged to be a “railway company or corporation,” or the “assignee or lessee” of one, but on the contrary is described as “trustee” of a railway company; that the terms “assignee,” and “trustee,” are not synonymous, but have each a peculiar and distinctive meaning in the law; that while an assignee may be in a certain sense a trustee in view of the character of his duties, yet a trustee is often in no proper sense of the term an assignee, and that the statute, being in derogation of common right, and highly penal, must be strictly construed, and is not to be applied to cases not clearly within its provisions.
It may be remarked that the testimony sustains the allegations of the bill of particulars, and shows that the Union Trusfc Company was engaged in running and operating the railroad, and, by certain agreementSj and certain orders of the United States circuit court, that the road was turned over to it, in pursuance of an arrangement between the M. K. & T. Eailway Co. and its bondholders, to be managed by it as trustee for the various parties interested. The act of incorporation of said Trust Company was not offered in evidence; and we can only infer the character of the incorporation from its name, and the business in which it is shown to be engaged. And where a corporation is found to be engaged in a certain kind of business, it will be presumed, as against the corporation, in the absence of definite and positive proof to the contrary, that the carrying on of that business is one of the powers with which it is endowed. If a corporation is shown to be engaged in the business of manufacturing, it is proper to call it a manufacturing corporation. If it is operating a railroad, is it not a railway corporation ? The name of a corporation is not conclusive as to its character. The best evidence is the charter, which defines its powers. And in the absence of that, the next best evidence, as against it at least, is the business in which it actually engages, the powers it actually exercises. But it may be said, that its name indicates that it is a corporation organized for the sole purpose of assuming and performing trusts; that the agreements and orders show that its acceptance of the management and control of this road is but the carrying out of a trust, and powers incidental to its discharge. This doubtless is a fair deduction from the agreements and orders. But is not a trust corporation,'endowed with power in the discharge of a trust to assume the control and management of a railroad, to be deemed, while so engaged in operating and running the road, a railway corporation pro hao vice, within the meaning of the act ? Is the character of the title by which the property is held, the potent question ? or is it not rather the fact, that the corpora tion is, or is not, éngaged in the business? Is not one who, although it be in the execution of a trust, engages in the business of buying and selling groceries, properly styled a grocery merchant ? Could he evade the payment of any license exacted from such merchants, on the plea that he was only a trustee? Here the trust involves no closing out of the business. Everything, so far as the actual operation of the road is concerned, continues as before. The only change is, that the controlling management is passed from one corporation to another, and the latter is to make certain disposition of the earnings. And if the latter has power to engage in the business of running a railroad, (and that it has that power must, as against it, be presumed in the absence of other testimony from the fact that it assumes and exercises the power,) then, with the exercise of that power it assumes all the responsibilities which the statutes of the state impose upon all corporations engaged in the business of running and operating railroads. In the case of Clement v. Canfield, 28 Vt. 802, a lessee was held to be an agent, within* the meaning of an act making corporations and their agents liable for damages occasioned by want of fences and cattle-guards. See also, Tracey v. Railroad Co., 38 N. Y. 433; Rogers v. Wheeler, 43 N. Y. 598; Webb v. P. & K. Rld. Co., 57 Me. 117; Mich. Central Rld. Co. v. Kanouse, 39 Ill. 272. We think therefore the plaintiff in error was properly held to be within the terms of the act.
The demand was made upon one who testified that he was the “stock and claim adjuster, and authorized to settle for stock killed,” and, taking all the testimony together, appears to have been made for a specific sum, and more than thirty days before suit. It appears also that the demand was made while the adjuster was trying to settle this claim. Indeed, he testifies that his proposition was accepted, and a voucher drawn for the amount. Was this a sufficient demand? Counsel claim that the demand must be made upon a ticket or station-agent, under section 3 of the act. We had occasion to consider that question in the case of the Central Branch Rld. Co. v. Ingram, recently decided, (ante, p. 66,) in which we held that said section 3 was not mandatory, but permissive, and that a demand upon the-general manager was sufficient. Following the opinion announced in that case, a demand upon one authorized to settle the claim,. and engaged in an attempt to settle it, would be sufficient. He in that respect fully represents the company,, as fully as the general manager does in all respects. The demand therefore was sufficient.
Certain minor matters are noticed by counsel, but we see no substantial error in the case, and the judgment will be-affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Bbeweb,, J.:
This is an original proceeding in this court, to compel the issue of a tax deed. The facts are these: A certain tract of land in Osage county was sold to the county for the taxes of 1866. In May 1872, Cole and Waterman took an assignment from the county. Subsequently a deed was issued, which upon its face was void under the authority of Norton v. Friend, 13 Kas. 532, as showing the county a competitive bidder. Thereupon, the plaintiff, who succeeded to the rights of Cole and Waterman, brought this proceeding to compel the issue of a deed valid upon its face.
There are two questions in the case — one, whether the' •plaintiff was entitled to any different deed than the one already issued; and the other, whether defendant has refused, after proper demand, to issue a valid deed. The facts are these: The sale-book simply shows a sale to Osage county, giving amount and date of sale, but throwing no light on the manner of sale other than that which arises from the presumption that the county officials did their duty in making the sale. The sale-certificate certifies, “that the county treasurer of said county did at public auction, pursuant to notice given as by law required, at his office, in Burlingame, in said county, on the 6th day of May 1867, sell to said Osage county, according to law, the following - described real estate, * * * for the sum of $8.23, said sum being the amount of taxes and chai’ges due and unpaid on said real estate for the year,” etc. The county treasurer, whose deposition was taken and filed, testifies that the land was duly put up for sale, and for want of bidders was struck off to the county.
As to the defendant’s refusal, it appears that a deed was tendered him for execution, which recited in full the facts concerning the sale as now testified to by the treasurer. This he refused to execute. The testimony is conflicting as to any further refusal. The plaintiff evidently understood him to refuse to execute any deed, while his testimony is positive that, while he refused to execute the deed tendered him, he offered to execute a deed which should contain simply the recitals of the sale-certificate, and that the plaintiff refused to accept that, saying that “it would be no better than the one already issued.” Upon this we remark, that with the treasurer’s testimony it is apparent that a valid sale was made, and that therefore a valid certificate and deed ought to have been issued. Without such testimony the fact is to say the least doubtful. The sale-certificate shows that the treasurer sold at public auction. This implies bids, competition. True, it says he sold “according to law;” and the law provided that if the land could not be sold for the amount of taxes and charges thereon, the treasurer should bid it off for the county for that amount. The sale to the county is one really for lack of bidders, and after failure to sell at public auction. So that the statement' of fact makes against the validity of the sale,-while the legal opinion is in favor of its validity.
We remark further, that when an officer is called upon to execute a deed, he is to take the record as he finds it, and may not act upon the statements of parties no longer officers, as to the facts of a sale made by them when officers. If the record be not correct, parties interested must have it corrected by appropriate proceedings. Again, where the record leaves it doubtful whether a valid sale was in fact made, and that doubt can be solved only by parol testimony, a bill in equity is a more appropriate remedy than a writ of mandamus. And finally, it is evident to us that there was a misunderstanding between the parties as to what the defendant would, and what he would not, do. The plaintiff evidently thought there was a refusal to execute any deed, while the defendant as evidently intended to be understood as refusing only to execute the deed tendered.
Upon other questions arising in this case, the members of the court are not agreed, and therefore no opinion can be expressed. A majority of the court are of the opinion that substantial justice requires, and that under the peculiar facts of this case the proper order should be, that if plaintiff within twenty days shall file with the clerk of this court a written waiver of all claim for costs, then the defendant should be ordered to execute in his name as county clerk a tax deed with full recitals of a valid sale; and that if plaintiff shall fail to file such waiver, judgment should then be entered in favor of the defendant for costs.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Two complaints were filed, charging defendant with selling liquor without license to the same person at the same place, but on different days — one, on August 22d, and the other on August 27th. The complaints were in all respects alike except in the statement of the time of the commission of the offense. Shafer pleaded “guilty” to the first charge, and was fined, and then plead “former conviction” in bar of the last complaint. The complaining witness in the two prosecutions was sworn, and testified over the objection of the defendant, that there were the two separate sales, one on the 22d, and the other on the 27th. Defendant was thereupon found guilty on the second complaint, and sentenced; and from that sentence appeals to this court. And the only question presented is, whether the conviction under the first charge is a bar to the prosecution under the second. The argument of the learned counsel for appellant" is, substantially, that in a complaint like this the matter of exact time is immaterial; that the offense could be proved to have occurred on a day other than that named in the complaint; that under a charge of a sale on the 22d, proof of a sale on the 27th was competent, and would sustain a conviction; that a plea of guilty to a complaint, is a plea of guilty to any offense that could have been proven under such complaint, and a sentence upon such plea is a final disposition as to such charge, and a bar to any subsequent prosecution therefor; and that therefore, the conviction upon the plea of guilty, to the first complaint, was a final disposition as to a'ny offense that could have been proved under such complaint, and a bar to any prosecution therefor. This argument is ingenious,' plausible, and exceedingly well put by the learned counsel, but is not well founded. That there were two offenses, that defendant was liable to a separate prosecution and separate punishment for each, is not questioned. That upon the face of the papers two separate offenses appear to be charged, and that the ordinary construction of written instruments would make them refer to distinct transactions, is clear. A plea of guilty is an admission of guilt as to only one offense, and not as to two, or more; and we apprehend the rule to be, that where prima facie the two complaints charge distinct offenses, a conviction under one is no bar to a prosecution under the other, without proof aliunde that the same transaction is complained of in the two actions. Here no such proof was offered; and the only evidence there was, established the two offenses. But say counsel, How can it be known what testimony would have been offered in support of the first complaint? non constat, but that if a trial had been had upon a plea of “not guilty,” the testimony might have been solely of a sale on the 27th, the very same sale of which defendant is now complained against; but that now no such testimony is possible, and we must take the charge as broad enough and as in fact covering every offense which could have been proved under it. To this, counsel for the state forcibly replies, that if this were good law the defendant would take more by a plea of guilty, than by a trial and conviction of guilt; that in the former case he would be punished for but one offense, and freed from punishment for all others of like character which were committed within two years prior to the charge, while in the latter case, under proper allegations and proofs, he may be punished not merely for the one, but for all the others. It seems to us that if testimony outside the record be, as claimed, incompetent, then the defendant can claim his prior conviction as a bar to only the particular act specifically described, (and confessed by his plea,) and that he cannot use' it as a shield to cover all similar offenses. We note the expressions referred to by counsel in many authorities, that a conviction or acquittal is a bar to subsequent prosecution, not merely for the specific offense charged, but also for all embraced in or provable under the first indictment or information. But such expressions must be construed in reference to the facts and questions presented in the cases where the expressions occur. Thus, a charge of murder includes manslaughter, and assault. Of course, an acquittal on a charge of murder is a bar to prosecution for manslaughter as to the same homicide. The latter offense was provable under the first charge. Again, some offenses, such as murder, are incapable of repetition. Again, in many of the cases the identity of the acts done was not in dispute, but merely a question as to the character of the offense. In many of these cases there are doubtless expressions accurate enough in reference to the questions therein, but which would not be appropriate to this-case, and would, if used, state the law incorrectly. See on the general question here involved, the many authorities cited by the counsel for the state.
Of course, we are deciding the case presented to us by the record, wherein it is shown that the “former conviction” pleaded and relied upon as a bar to the prosecution was upon the defendants plea of “guilty” to a specific charge alleging the commission of a particular offense on a certain designated day; and what is said in this opinion is not to be taken as applying to a case where the plea of “former conviction,” or “former acquittal,” is based upon a judgment given upon the trial of an issue joined upon a plea of “not guilty.”- It will be time enough to decide that case when it comes prop erly before us. In the case now before us we see no error in the ruling, and the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
Action on a note and mortgage, given by an administrator. Defense, a want of power. The question was raised on demurrer. The facts as stated in the petition are, briefly, that Lewis Dressell settled upon a quarter-section of the Osage lands, the one upon which this mortgage was subsequently given, intending to enter the same; that he died before making payment and final entry; that Henry Martin was appointed administrator of his estate, March 14th 1872, having been theretofore and in 1871 appointed guardian of the minor heirs; that 1st January 1873 was the last day for payment, and that on December 21st 1872, Martin, as administrator, filed his petition in the probate court asking for an order authorizing him to borrow money upon said quarter-section, and mortgage the same as security therefor; that the probate court made such order, and that said Martin, as administrator and guardian, executed his note and mortgage to-one Crapster for $250, and received said sum of money, and with $200 thereof made payment and entered the land for the heirs, and received the final receipt; that the note and mortgage were duly transferred to plaintiff; that Henry Martin deceased, and Addison A. Jackson was appointed administrator de bonis non; that the estate of Lewis Dressell was at all times insolvent, and had no property other than this land. A copy of note, mortgage, and receiver’s receipt, were attached to and made part of the petition. The note and mortgage are executed solely in the name of Henry Martin, administrator, and in neither is any order of the court recited or referred to. The receiver’s receipt reads, “Received from Henry Martin, administrator of the estate of Lewis Dressell, deceased, (for the heirs,)” etc.
That the statute grants no power to an administrator to borrow money upon a mortgage of the real estate of the decedent, is not controverted. Indeed, such an act is foreign to the policy and purpose of administration, which aims to close up, not to continue an estate. And the allegations of the petition, as well as the recitals of the note aiid mortgage, exclude the idea of any guardian proceedings or attempt to charge the estate of the minors, except as such estate might be affected by administration proceedings on the estate of the ancestor. Impressed with these considerations, the learned counsel for plaintiff fall back upon the gross injustice of permitting the heirs to hold property discharged of any lien for the money borrowed to pay its purchase-price. They refer to the case of Maduska v. Thomas, 6 Kas. 153, 161, in which this court, criticising the action of an heir attempting to repudiate a contract of sale made by the ancestor after receiving full payment from the purchaser, says: “She cannot hold the money, and also hold the lots. The law cannot permit such gross injustice.” If the mortgage be not valid of itself to cast a specific lien upon the land, yet the circumstances of borrowing the money for the purpose of purchasing the land, and its use for that purpose, compel the interposition of a court of equity to prevent a wrong. Ubi jus, ibi remedium. The owner of the money has parted with it to enable these heirs to purchase this land. They have used it for this purpose. May they now keep both land and ‘money? Doubtless there is great force in this argument, yet it overlooks certain facts; and the harshness of the result must not permit us to disregard established rules. And first, the money was not borrowed by the heirs, nor by any one in their name. Because without request or interference of their own, the administrator of their father’s estate performed an illegal act, which has resulted to their benefit, are they concluded to dispute it illegally ? In other words, does the mere fact of benefit received, estop these minors to question the legality of an act done by a third party, and not at their instance? For aught that appears, they may have had an estate of their own, independent of anything descending from their father, ample enough without mortgage or sale to have furnished the'means of purchasing this land, if deemed by the court for their interest. There is no pretense of any fraud or imposition upon the lender of the money, no suggestion that he was in any manner ignorant of the law, of the invalidity of the mortgage, or the want of authority in the administrator to charge by loan the estate in his custody. Can there be any estoppel upon the heirs, when he with full knowledge of his rights parts with his money to the administrator ? Concede that he did it for their benefit, can he now compel them to surrender the benefits of his voluntary act ? Suppose A. were to borrow of B. money to purchase land in the name and for the benefit of C., would B. have any claim upon C., or any lien upon the land ? Clearly not, in the absence of fraud, misrepresentation, mistake, or other like matter of estoppel on C. Is not that this case? Fraud, mistake, misrepresentation, are all excluded. It turns upon the validity of the note and mortgage, and the idea of benefit inuring to the heirs. The note and mortgage, as such, are plainly invalid, and the mere fact of the benefit received will not as we think sustain the action. Reluctantly we are constrained, to affirm the judgment.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought to recover the amount of a reward claimed to have been offered by the plaintiff in error, who was the defendant in the court below. At the trial the plaintiff offered the following testimony:
“Z. Combs, one of the plaintiffs, testified: Dysert and myself caught John Heberlin at Le Loup, in this (Franklin) county, and started down to Ottawa to put him in jail. I did not know where we might go with him. On the road Jenness, (sheriff of Franklin county,) met us, and demanded Heberlin. We turned him over to him, and he brought him to Ottawa. I had heard at the time we took him that a reward of fifty dollars had been offered for his capture, and I did what I did, and we acted in the matter of the arrest and capture, with a view to obtaining that reward. I had seen a notice of the escape, and a description of the prisoner in the papers, and heard of an offer of reward. I recognized Heberlin by the description in the papers.
“Cross-examined: I did not know that the defendant Stone offered the reward. Did not know who offered it. I did not know the terms of the offer, except that the amount offered was fifty dollars.”
The following handbill was then offered:
“$50.00 Reward. — Broke jail, on the morning of July 29th 1875, John Heberlin; height, five feet, six inches; weight, 120 lbs.; slim built, boyish-looking, about 18 or 19 years old. He broke jail at Ottawa, Kansas, and was a prisoner belonging to Montgomery county, Kansas. I will pay $50.00 reward for him delivered to me at Independence, Kansas. J. E. Stone, Sheriff, Montgomery Co., Kas.”
It was then admitted that the prisoner remained in the jail of Franklin county until a day or two before the next term of the district court of Montgomery county, when the defendant, in the discharge of his duty as sheriff, came to Ottawa and took Heberlin with others, to Montgomery county for trial. At that time the plaintiffs demanded of him the amount of the reward, but he refused to pay it. It was also admitted, that the prisoner recaptured by plaintiffs was one of several prisoners who broke jail at Ottawa, in Franklin county, a day or two previous to said recapture by plaintiffs, and that he was a prisoner belonging to Montgomery county; that he had been transferred to and was incarcerated in the Franklin county jail as a prisoner of Montgomery county, by due process of law; that at the time of said escape, and recapture, said Jenness, who made the demand of plaintiffs for said prisoner, was sheriff and jailer of said Franklin county, and the officer to whose custody the said prisoner had been committed; that J. E. Stone, whose name is attached to said handbill, was the defendant; that the distance from Ottawa to Independence was over 100 miles, and that the fare by rail from Ottawa to Independence was between five and six dollars.
The plaintiff Combs being thereupon further cross-examined, testified as follows:
“We did not do nor offer to do anything other than I have already stated, toward delivering Ileberlin at Independence. We did not know at the time we delivered Heberlin to sheriff Jenness, upon his demand, that the ter.ms of the reward required his delivery there. At the time we delivered Heberlin to sheriff Jenness upon his demand, we claimed the reward.”
This was all the testimony offered by the plaintiff, who then rested, and the defendant demurred to the evidence, that it did not prove a cause of action. The court overruled the demurrer, to which ruling the defendant excepted; and thereupon the cause was submitted to the jury without further evidence upon either side. The jury returned a verdict for the defendants in error for the fifty dollars, and judgment was rendered accordingly.
The facts of this case afford a complete answer to all the objections made to the ruling of the court, or judgment below, and we must affirm the judgment. It was not necessary that the defendants in error should have known the name of the person who offered the reward, prior to their acting in the matter, in order to recover. It is sufficient, if acting on the knowledge that a reward had been offered, and with a view to obtain it, they performed substantially the service proposed in the advertisement. The fugitive criminal was arrested and brought back for the plaintiff in error. Nor was the failure to deliver the prisoner at Independence, under the facts, a reason to relieve the sheriff of Montgomery county from the payment of all of the reward. If the plaintiff. in error had defended on the ground of his right to retain the expenses of transporting the prisoner from Ottawa to Independence, a different question would have been presented than we are now determining. The defense rested on the theory that the evidence did not prove a contract; nor the performance of a contract by Dysert and Combs. These questions were presented on the demurrer to the evidence, in the instructions requested by counsel for plaintiff in error, and in their argument here. The evidence fully established á cause of action, and the demurrer thereto was properly overruled. The instructions substantially informed the jury, if the facts testified to were true, that Dysert and Combs were entitled to judgment, and we find no error in such direction to the jury. Nor was there error in the rejection of the instructions not given. The interposition of the sheriff of Franklin county, in changing the custody of the prisoner after his capture, would not alone deprive the defendants in error from receiving the reward. This sheriff had the right officially to demand the prisoner; the other parties had no right to resist the legal authority, and the prisoner was thereafter securely retained for the plaintiff in error, who came and took him from the jail, where he was placed through the services of Dysert and Combs, to Independence. Stephens v. Brooks, 2 Bush. 137; First National Bank v. Hart, 55 Ill. 62; Besse v. Dyer, 9 Allen, 151.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action under the railroad stock-law of 1874, to recover for the killing of a cow. The following special findings present the principal questions in the case:
3d .-The railroad of the defendant was not at said time inclosed with a good and lawful fence, nor any fence, to pre vent cows and other animals from being on its said railroad, neither generally nor at the point of the accident hereinafter mentioned.
4th.-On 4th June 1875, and for a long time prior thereto, the plaintiff resided in Blue Rapids City township, in Marshall county, and she permitted said cow to run at large upon the highways and uninclosed lands in said township, and said cow was so running at large upon the uninclosed lands of the Lewis heirs,, in said township, in the night-time, with the knowledge and permission of the plaintiff at the time of the accident hereinafter mentioned.
5th.-On the night of said 4th June, and about 9 o’clock p.m., the regular passenger train of the defendant, going westward" through said Blue Rapids City township, and through the uninclosed lands of the Lewis heirs, ran upon and over said cow, and so wounded her as to cause her death in a few hours. Said cow was not so injured and killed through any negligence of defendant in the management of said train — the cow having got upon the track only a few feet in front of the locomotive of said passing train, so that it was impossible to stop or check said train in time to avoid a collision with said cow; and said railroad company was not guilty of any negligence contributing to the injury, except from the failure to fence its railroad as aforesaid.
6th. — On the 29th of April 1871, by due and regular petition signed by more than three-fifths of the number of electors of the said Blue Rapids City township, the board of commissioners of said county of Marshall, being duly in session, made and passed, and entered upon their records, an order in compliance with the request of said petitioners, and in pursuance of sections 1, 2 and 3 of chapter 105 of the General Statutes of 1868, requiring the owners of cows and other domestic animals therein named in said Blue Rapids City township to keep them confined in the night-time, between the 1st day of March and the 1st day of December of each year; and that the owner or owners of such domestic animals so required to be confined in the night-time should be liable to any person who should suffer damage from the depredations of such animals in the night-time, during the period that such animals were by said order required to be confined, without regard to the condition of his or her fence, and that said order should take effect from and after the 27th of May 1871, and should be published in the “Marysville Locomotive” for three consecutive weeks prior to said day; and said order was duly certified by the county clerk, under his hand and official seal, and was duly published in said “ Marysville Locomotive,” a weekly newspaper printed and published in said county of Marshall, and of general circulation therein, for three consecutive weeks, between said April 29th and May 27th 1871, and said order went into full force and effect said May 27th, and has ever since remained in full force and effect.
7th.-On the 11th of April 1873, the board of commissioners of said county of Marshall, being duly convened in regular session, made and passed and entered of record an order as follows:
“ Ordered, In accordance with the laws of the state of Kansas, entitled ‘An act to provide for the running at large of animals,’ approved February 24th 1872, that on and after the 12th day of May 1873, all horses, mules, asses, neat cattle, (except calves under six months of age,) also, goats, sheep, and swine, are prohibited from running at large within the bounds of Marshall county; and that this order shall be published in the ‘Marshall County Hews’ for four successive weeks prior to said 12th of May 1873.”
Said order, duly certified by the county clerk, was duly published iu said “Marshall County News,” a weekly newspaper published and printed in said county of Marshall, and of general circulation therein, for four successive weeks between said April 11th and May 12th, to-wit, on April 12th, April 19th, April 26th, May 3d, and May 10th, 1873, and said publication was duly proved and verified by the affidavit of the publisher of said newspaper on the 12th of said May, and said affidavit, together with a copy of said printed notice as published in said newspaper, was on said day duly entered on the records of the said commissioners, and said order went into full force and effect on the 12th of May 1873, and has ever since remained in full force and effect.
8th.-The plaintiff knew that said cow was running at large upon the uninclosed lands in the vicinity and neighborhood of said railroad, and that 9 o’clock p.m. was the usual time for the regular passenger train to pass westward to Water-ville.
(The 9th finding was as to a demand for payment.)
10th.-Said cow would not have been killed or injured at said time and place if the defendant had fenced its railroad.
llth.-Said cow would not have been killed or injured at said time and place if the plaintiff had kept said cow confined in the night-time between March 1st and December 1st.
12th.-Said cow would not have been killed or injured at said time and place if the plaintiff had not permitted her to run at large.
Upon these findings the district court held the railroad company liable, and it brings the case here on error. The question is an important one, for the general herd-law is in force in many counties through which run railroads; and are railroad corporations the only parties in such counties under obligation to fence out stock? It is apparent that each party, plaintiff and defendant, was in neglect of duty, and that if either had obeyed the law, no loss would have occurred. Are they equally culpable? If so, neither can recover of the other — for the law seldom helps one wrongdoer to recover damages from another. The night herd-law, (Gen. Stat. p. 1002, §3,) provides that those who violate it “shall be liable to any person who shall suffer damage from the depre-. dations” of their animals, “without regard to the condition of his or her fence.” The general herd-law, laws of 1872, p.384, §3, also provides that “any person injured in property by the running at large of any of the animals specified in the said order of the board of county commissioners, shall have a lien, without regard to fences, upon the animals so running at large for the full amount of all damages committed by them upon the property of said person;” while sections 1 and 5 of the law of 1874, (Laws 1874, pp. 143, 144,) reads:
“Sec. 1. Every railway company or corporation in this state, and every assignee or lessee of such company, or corporation, shall be liable to pay the owner the full value of each and every animal killed, and all damages to each and every animal wounded by the engine or cars on such railway, or in any other manner whatever, in operating such railway, irrespective of the fact as to whether such killing or wounding was caused by the negligence of such railway or corporation, or the assignee or lessee thereof, or not.”
“ Sec. 5. This act shall not apply to any railway or corporation, or the assignee or lessee thereof, whose road is inclosed with a good and lawful fence to prevent such animals from being on such road.”
Neither law imposes any other penalty than the liability for damages, and each law is equally plain and positive in imposing that liability. In neither of the last two statutes is any express repeal of the prior laws. Unless necessarily inconsistent, each therefore remains in force, for repeals by implication are not favored. (The State, ex rel. Tholen, v. Farrell, ante, 214, 217.) There is no such inconsistency. Each may remain in full force. The railroad company whose road is unfeneed is liable, even in the herd-law counties, to parties whose stock is killed by its trains; and the owners of cattle running at large are liable to any persons, including therein railroad companies, for any damages caused by such cattle. This mutual liability will sometimes, though not always, be for the same amount. . If no damage be done to the track, or train, then the company is liable to the cattle-owner for the value of the cattle, and the cattle-owner is liable to the company for the damage done to it, (that is, for the liability imposed upon it for the cattle;) and the one equals the other. It may be however that the train is thrown from the track, and more or less injured; and then the liability of the cattle-owner would by the terms of the statute be largely in excess of the liability of the company. Probably however, the fact that the company was in fault for lack of a fence would prevent its recovery of such greater damage, on the principle of contributory negligence. In this case there is no claim of other damage than the loss of the cow, so that giving force to the liabilities imposed by the respective statutes, the claims of each party against the other would be exactly the same.
Again, it will be noticed that the findings show no other negligence on the part of either party than is involved in the disregard of the statutory duty. The parties in charge of the train were guilty of no actual negligence; neither was the owner of the cow. Except for the statutes, neither would have a claim upon the other. And this neglect of the statutory duty was not the proximate but only a remote cause of the injury. The running of the train against the cow, was the proximate cause; and in this there was no negligence. So that neither party can say to the other, that its negligence was the direct and immediate cause of the injury. It comes back therefore to the propositions, that each party was in fault, and each party had disregarded the requirements of the law; that such disregard by each contributed equally to the injury as a remote cause; and that in the proximate causes no fault is imputable to either. Why then should one violator of the law recover damages of another for injuries of which his own violation is as much the cause as that of the defendant? The obligation of the one statute is no more binding than that of the others, and it is the duty of courts to see that no man profits by his own wrong. Whether therefore we look at it as the mere setting-off of one cause of action against another, or an attempt of one wrongdoer to make another pay for an injury caused equally by the wrong of each, it is clear that the plaintiff must fail.. The courts will leave the parties where it finds them. Potior est conditio defendentis. It is doubtless true, as decided in Hopkins v. K. P. Rly. Co., 18 Kas. 464, that the intention of the law of 1874 was to obviate the necessity of any inquiry into the mere negligence of the parties concerned in the transaction which caused the injury, at least of the parties on the railroad side; but it was not its intention to relax the binding force of other enactments, or to enable any one to disregard their prohibitions or commands with impunity. Authorities are not wanting, for similar questions have been passed upon by other courts. Thus, in P. Ft. W. & C. Rld. Co. v. Methven, 21 Ohio St. 586, the Ohio statute of 25th March 1859, (S. & C. 331,) required all railroad companies to fence their roads on both sides within two years, and also to make and maintain suitable crossings for the accommodation of the public and of persons living near the line of such railroad, together with the necessary cattle-guards to prevent cattle and other animals from endangering themselves and the lives of passengers by getting upon such railroads, and enacted that such railroad companies should be liable for all damages which should result to such animals by reason of the want or insufficiency of such fences, road crossings, or cattle-guards, etc. But the statute of 13th April 1865, (S. & S. 7, 8,) made it unlawful for any owner of cattle to suffer the same to run at large, under a forfeiture of not less than one nor more than five dollars, and rendered such owner liable for all damages done by such cattle upon the premises of another, “without reference to the fence which may inclose said premises.” Methven brought his action against the railroad company to recover the value of a cow killed on the railroad track, which was unfenced. The railroad company answered, that “Plaintiff did not live along the line of its said road, nor was his cow grazing in any inclosed field adjacent thereto — that said plaintiff knowingly, willfully, and unlawfully permitted his said cow to run at large on the highways and uninclosed lands adjacent to defendant’s said railroad, whereby said cow went upon said road, and was accidentally killed; and that by reason thereof plaintiff cannot maintain his said action against the defendant.” A demurrer to this answer was sustained by the district court, but the supreme court reversed the decision, and held that the answer was a sufficient defense to the action.
Again, in Pitzner v. Shinnick, 39 Wis. 129, the plaintiff and the defendant occupied adjoining farms. A railroad ran through the defendant’s land, and the company had fenced its track as required by the statute. There was a farm-crossing, with gates in the railroad fences on each side. The statute provided, that any person opening any such gates at such crossings, and not immediately closing the same, should be liable to a fine, and liable also to pay the damages sustained by any person by reason of such failure or neglect. It appeared that the defendant had opened the gate in the railroad fence, and negligently suffered it to remain open for a long time. The division fence between the two farms was defective, and there was evidence tending to show that the plaintiff did not use ordinary care to prevent the escape of his cows from his own premises. They escaped through the defective division fence, and went upon the defendant’s premises, and thence through the open gate to and upon the railroad track, where they were struck and killed by a passing train. The action to recover damages from the defendant was based upon the statute. The court (page 133) says: “It is claimed by the learned counsel for the plaintiff, that if the defendant allowed the gate at his crossing to remain open at and before the time the plaintiff’s cows were killed, and the cows went on the track through such open gate, the defendant is absolutely liable for the loss of the cows, even though the plaintiff was himself guilty of negligence which contributed directly to the loss.” After a review of the Wisconsin authorities, the court (page 137) says: “We hold that if the. plaintiff negligently suffered his cattle to escape from his own premises to the farm of the defendant, he cannot recover in this action, even though in all other respects he may be entitled to judgment.”
In P. P. & J. Rld Co. v. Champ, 75 Ill. 577, it was held, that the owner of a horse who voluntarily permits the same to run at large contrary to the law in force in the county, cannot recover of a railway company for the killing of the same by one of its trains upon the ground that such company has failed to fence its track as required by the statute of Illinois. The same doctrine is asserted in Perkins v. Eastern and B. & M. Rld. Companies, 29 Maine, 307, 310, where, referring to the railroad companies, the court says: “But if required to fence the entire track, the defendants would not be responsible for killing the plaintiff’s cow, if she were wrongfully upon the adjoining close.”
And again, in Jackson v. R. & B. Rld. Co., 25 Vt., 150, it is held that the owner of animals, suffered to go astray, and trespassing upon a railroad, cannot recover for their destruction by a train, without negligence on the part of the servants of the company, even where the company is under a special statutory obligation to fence its road, and has omitted to do so. The opinion of the court, which was delivered by the late learned and distinguished jurist, the honorable Isaac E. Redfield, then (1853) chief judge of the supreme court of Vermont, contains an able and interesting discussion of the subject of fences and trespassing animals. And it may be remarked here, that the reasoning in the case seems entirely applicable to those localities in this state in which the herd-law is in force.
In Keech v. B. & W. Rld. Co., 17 Md. 32, it is held that the well-settled principle of the common law, that a plaintiff is not entitled to recover for injuries to which his own fault or negligence has directly contributed, is not abrogated by the several acts of assembly regulating the liability of railroad companies for stock killed or injured by their trains; but that those acts leave the question of negligence on the part of the plaintiff where it was at the common law, and do not confer upon a party who is himself a wrongdoer the right to obtain redress for the consequences of his own negligence, or misc'onduct. The Maryland act of 1838, ch. 244, then in force, d'eclared that railroad companies should “be responsible for injuries inflicted upon any stock, as cattle, horses, etc., or by fire occasioned by their engines upon any of their roads or the branches thereof, unless said company can prove that the injury complained of has been committed without any negligence on the part of said company or their agents.” The court says, that “ to adopt the construction contended for by the appellant, would entitle a party to recover damages for stock killed by a railroad train, although it should be shown that the accident resulted from the grossest carelessness off His part, or that he voluntarily turned them loose upon the railroad track when a train was passing.”
In Giles v. Boston & Maine Rld., 55 N. H. 552, it is held that a railroad corporation is not liable for damages done to cattle unlawfully in a pasture adjoining, and escaping thence upon its road through defective fences which the railroad is bound to keep in repair. And in McDonnell v. P. & N. A. Rld., 115 Mass. 564, it is decided, that a railroad corporation is not liable for killing animals which, being unlawfully' upon upon a lot of land, go thence upon its track, and are killed by a passing train, although it was the duty of the corporation to maintain a fence between its track and said lot, and it did not do so, unless the killing was wanton or malicious.
And again, it is said by the court in Munger v. Tonawanda Rld. Co., 4 N. Y. 349, 359, that “The plaintiff, before he can stand in court as an accuser, must himself be free from fault. He cannot support his action by basing it partly on his own wrong, and partly on the wrong of his adversary. He is answered, when it appears that he has been wanting in duty, or has contributed to his own injury. He has then volunteered to suffer, and the law sees no wrong in the case. So that, whenever it appears that the plaintiff’s negligence or wrongful act had a material effect in producing the injury, or substantially contributed toward it, he is not entitled to recover.” See also, Covey v. C. & N. W. Rld. Co., 43 Wis. 17; Alb. Law Journal, 430; D. & M. Rld. Co. v. Miami Co. Infirmary, Sup. Ct. Com. Ohio, 6 Cent. Law J. 436.
It will be observed that in some of these cases, notably that in 21 Ohio St., the act of the plaintiff was itself a violation of some statute, and in that respect parallels the case at bar; while in others, the act or conduct of the plaintiff was simply contributory negligence, and the courts held that the obligations and liabilities cast by statute upon railroad companies in no manner changed the rule as to the effect of contributory negligence. If these authorities correctly enunciate the law, as modified by our statutes, the opinion we expressed in the case of Hopkins v. K. P. Rly. Co., 18 Kas. 464, goes too far; for there we said the effect of our statutes was to avoid the necessity of any inquiry into the mere negligence of the stock-owner, or those in charge of the stock, as well as that of the railroad company. So far as it respects this question, any expression in that case was unnecessary, for the evidence showed no negligence on the part of the owner or those in charge, and the decision was correct as based upon the effect of the statute upon the matter of the company’s conduct. Further examination' and reflection have led us to doubt whether we did not go too far in that case, and we therefore are disposed to modify that opinion by striking out all reference to the effect of the statutes upon the acts and conduct of the claimant. We do not mean by this to decide that the doctrine of “contributory negligence” applies as heretofore, but leave the matter open for further inquiry in some case in which we shall have the benefit of a full discussion thereof by counsel. Upon that question we have the statute of 1870, reference to which was made in the case of St. Jos. & D. C. Mid. Co. v. Grover, 11 Kas. 302, which broadly declares, that “the railroads in this state shall be liable for all damages done to person or property when done in consequence of any neglect on the part of the railroad companies,” and the statutes of 1874, the essential portions of which we have quoted, supra. Upon these, two important questions arise: first, has the legislature the power, as between two parties equally guilty of negligence, to compel one to pay to the other all the damages resulting equally from their several wrongs or omissions? and second, did the legislature intend by these statutes to touch anything other than the acts or conduct of the railroad companies? Before a final decision of these questions, which seem to us of doubt as well as importance, we desire such assistance as will be furnished by a full examination on the part of careful and learned counsel.
For the reasons however heretofore given — that is,-because each was knowingly acting in disobedience to the commands of asta-tute — we hold that the plaintiff cannot recover in this case; and the judgment must be reversed and case remanded, with instructions to enter judgment upon the findings in favor of the defendant below, plaintiff in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
A demurrer' to the petition filed in this case in the district court was overruled, and from such ruling plaintiff in error brings this proceeding in error. The defendaüts in error object that this proceeding is premature, as no final judgment has yet been entered. They overlook the plain provision of the statute, which authorizes the -review in this court of a decision on a demurrer. (Gen. Stat., p.736, § 542 of civil code.) We are compelled therefore to examine the petition, to see whether it states a cause of action; and in this examination we are furnished no assistance by the brief of counsel for defendants in error.
The petition alleges, that John Kennedy died intestate in Ohio, in 1863, leaving a widow and several children, of whom defendant was one; that said John Kennedy left about $1,000 of personal property.; that there was no administration; that his widow, together with the children, continued his business until 1866, at which time the property amounted, profits and all, to about $3,800, and that the business was carried on in the name of the widow; that in 1866, the defendant, by consent of his mother and the said children, took and received four hundred dollars of said property, “for the purpose and with the express understanding that he should invest the same for their said mother in a farm, store, or other business, and that he was also to use as much more of the moneys aforesaid as were sufficient and necessary to purchase a home, store, or other business, and when he had settled upon such business or farm he was to notify his said mother and said children, who were then to remove to such place in Kansas as he should locate.” The petition further alleges the receipt of the balance of the property by said defendant under said arrangement, his purchase therewith of certain real estate, describing it, in his own name, the removal of the family to Kansas, the death of the widow,, leaving as heirs the plaintiffs and defendant, and- the subsequent denial by defendant of all right and interest on the part of plaintiffs in said property. Was the demurrer properly overruled? We think it was. Whatever criticism may be placed upon the language of the petition for lack of precision and definiteness, the fair intendment is, that defendant. received money from his mother and her other children under an agreement to invest the same in property in her name and for her benefit, and that he used said money in defiance of said agreement in the purchase of the specified property in his own name. This brings the case within the provisions of sec. 8 of the act of 1862 concerning trusts and powers. (Comp. Laws, p.898; Gen. Stat. 1868, p. 1097.) Sections 6 and 8 of that act read:
“Sec. 6. When a conveyance for a valuable consideration is made to one person, and the consideration therefor paid by another, no use or trust shall result in favor of the latter, but the title shall vest in the former, subject to the provisions of the next two sections.”
“Sec. 8. The provisions of the section next before the last shall not extend to cases where the alienee shall have taken an absolute conveyance in his own name without the consent of the person with whose money the consideration was paid; or where such alienee, in violation of some trust, shall have purchased the land with moneys not his own.” * *
Now in the ease at bar the defendant took the conveyance in his own name without the consent of the parties paying the money, and he did so in violation of the trust reposed in him. Perhaps it may be said that the purchase was not in violation, but in execution, of a trust — the only violation being in placing the title in the wrong party — and that therefore the latter clause quoted of the section has no application. Re that as it may, (though we remark that the entire section was enacted in furtherance of justice, and to prevent fraud, and is not to be subjected to a strict and narrow construction,) we think it comes within the scope of the first clause. He took the conveyance in his own name, without the consent of the parties whose money paid the consideration. The want of consent, it is true, is not in so many words affirmed, but it is plainly implied, and is a fair inference from the form of the allegation. The form of the charge is, that he took money upon a trust, and an agreement to do one thing, and did another. Whatever therefore might be the subsequent approval of his conduct, the act, when done, was not the act the parties wished and intended should be done. It was, when done, done without their consent. Lyons v. Bodenhammer, 7 Kas. 475; Franklin v. Colley, 10 Kas. 260.
This is the only question presented by counsel in their brief, and that being correctly decided by the district court, the judgment will be affirmed.
All the Justices concurring. | [
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By the Court,
Horton, C. J.:
The question presented in this case, concerning the claim of the plaintiff in error, that the property for which suit was brought is the homestead of said Hiatt, and exempt from attachment-lien, was before the court in July 1873, and decided adversely to him. Bullene v. Hiatt, 12 Kas. 98. Within that decision, the judgment of the district court must be affirmed.
Valentine, J., concurring.
Brewer, J., not sitting in the case. | [
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The opinion of the court was delivered by
Brewer, J.:
This was a criminal prosecution in the police-court of the city of Columbus against West, for a violation of a city ordinance in the sale of liquor. Defendant was convicted in that court, and appealed therefrom to the district court, in which, upon trial, he was again convicted. This conviction he seeks to review in this court by petition in error, and not by appeal. But it has already been decided that appeal, and not error, is the proper remedy. Neitzel v. City of Concordia, 14 Kas. 446. Notwithstanding, we have examined the record, and see in it no substantial error. The objections are mainly technical, and not involving the question of defendant’s guilt or innocence.
I. It is objected that the place of the offense is not sufficiently described in the complaint. It was described as, a “certain one-story frame building, known as ‘West’s drugstore,”’ and as being within the corporate limits of the city of Columbus. This was sufficient. If the testimony showed that there was such a building within the city, and thus known, the identification would be complete. A specification of the lot and block upon which the building was situated, would under those circumstances be unnecessary.
II. Again it is objected, that the ordinance under which the prosecution was had was not set forth in full, or in part, in the complaint, but only referred to by its number. The prosecution was in the court of the city. The wrongful acts of the defendant were alleged with sufficient fullness and precision, and the ordinance, of which those acts were charged to be a violation, was referred to by its number. Whatever may be the rule where proceedings are had in courts other than those of the municipality itself, we think that a complaint in the police court of a city for a violation of one of the ordinance of the city is sufficient, although no part of the ordinance is copied into it, and no express reference is made thereto by date, number, or otherwise, providing the acts or conduct of the defendant in violation of the ordinance are fully and clearly charged. There is no more need of express reference'to the ordinance, in such a complaint, than there is in an information for a felony, in the district court) to the particular section of the statute under which the information is filed. The only question is, Do the acts charged constitute a violation? The police court takes judicial notice of the ordinances, as the district court of the statute; and the defendant in each case is bound to know the law. In the act for the organization of cities of the third class — in which class the city of Columbus belongs — (Laws 1871, page 137, §72,) the legislature has said that the complaint in such prosecutions, “when made by the marshal, assistant marshal, or regular policeman, need not be in writing, if the defendant be present in court and in custody.” The code of criminal procedure, § 111, (Gen. Stat. 838,) provides, that “neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment, or information.” And as said by Judge Dillon, in his work on Municipal Corporations, vol. 1, §346, “The liberal rules of pleading and practice which characterize modern judicial proceedings should extend to, and doubtless would be held to embrace suits and prosecutions to enforce the by-laws or ordinances of municipal corporations.”
III. Again, objection is made that there is a misnomer in the name of the city, and that therefore the ordinance was void, and the prosecution without authority. This municipality was originally organized as a town under ch. 108 of the General Statutes. That act provided, sec. 1, that a mu nicipality organized under it should be known “ by the name and style of £The inhabitants of the town of-/ (naming it.)” And this municipality was therefore called and known as “The Inhabitants of the Town of Columbus.” The law of 1871, for the organization of cities of the third class, changed all towns having not more than two thousand inhabitants into cities of the third class, and also provided, in section 12, that “the corporate name of each city governed by this act shall be ‘ The City of-/” Now counsel insists, that the legal title of this municipality is, “The City of The Inhabitants of the Town of Columbus; ” and as the ordinance was enacted by the city of Columbus, and the prosecution in its name, both must fail. We cannot assent to this claim. A part of the name is simply descriptive of the kind of municipal organization. And a change of the organization carries with it a change .of these mere words of description. And while the language of the legislature may not be the most felicitous, yet the intention is clear.
We think the ordinance not obnoxious to the criticisms placed upon it by counsel, and that it must be held to be valid.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action in the nature of ejectment. The plaintiffs below (who ai’e now plaintiffs in error)' recovered. The defendant then applied for the benefit of the “occupying-claimant law,” and the court below caused to be made the proper journal entry thereof. This was done on 20th November 1875. On December 13th afterward, the defendant required that a jury be drawn according to law to assess the value of his lasting and valuable improvements. The jury were drawn accordingly, and they made said assessment. The plaintiffs claim that this was all done without any sufficient notice ever having been given to them; and this is the only question now presented in the case. That no formal notice was ever given to either of the plaintiffs, or to their counsel, is admitted; but it is claimed by the defendant that the attorneys had an informal notice of said proceedings. Such informal notice is as follows: Some time after said jury were drawn, and just the evening before they made their said assessment, Simpson and Brayman, the attorneys for the plaintiffs, casually ascertained that said jury had been drawn, and that they would make their assessment on the next day. They determined that Mr. Brayman should accompany the jury to the premises to witness such assessment. On the next morning, W. T. Johnston, an attorney for the defendant, met Simpson and “made a remark” (as Johnston himself testifies) “as to the propriety of attorneys being present at such a proceeding, when the said Simpson said they proposed to take their chances on that.” Shortly afterward Johnston met Brayman, and Brayman told Johnston that he was going out to the premises with the jury to witness the assessment. They then agreed to go together. They had some other conversation. And then, according to Johnston’s affidavit, Johnston, the “affiant, then told said Brayman that if he, said Brayman, did not go out with said • jury to said premises, he, affiant, would not go; that said Brayman then said he would come to affiant’s office in a short time, and let affiant know what conclusion he had come to; that affiant went to his (affiant’s) office, to which the said Braj'man came in a few minutes thereafter, and in the presence of Sperry Baker, announced to affiant that he had concluded not to go out with the said jury to said premises, when affiant told said Brayman that if he (Brayman) did not go, that he (affiant) would not go.” This was all the notice that either the plaintiffs or their attorneys received. The sheriff and the jury went out to said premises. There they found the defendant; and these were the only persons present at the time of and during said assessment. Before the assessment was made the sheriff “administered an oath to the said Anderson B. Bryan, (the defendant,) to the effect that he the said Bryan would true answers make to such questions as were propounded to him by the jury touching the matter in controversy; and then the jury asked him questions about timber, boundary lines, material for fences, and timber for frames for buildings, and how much land he had broke; asked him questions about fruit trees; and that all of the jury were present when questions were asked of Bryan, and answered by him.” No other evidence was received by said jury.
Was the notice which the plaintiffs received sufficient? In the case of North v. Moore, 8 Kas. 143, 152, it was held, that
"in proceedings to value improvements under the occupying-claimant 1a~v, the party adverse to the onemaking a motion for a jury, or his attorney of record, is `entitled to reasonable notice of the same." See also, Patterson v. Prather, 11 Ohio, 35. In K. P. Rly. Co. v. Thacher, 17 Kas. 102, it was said, that "it is a general rule, though one with perhaps sonic exceptions, that notices required in legal proceedings must be in writing. This seems essential to the certainty and precision of such proceedings." See also authorities there cited. This is also consistent with the statutes, if not expressly required by them. The §tatute says that "where notice of a motion is required, it must he in writing.” (Gen. Stat.' 734, §534.) We think said notice was not sufficient. The notice should have been a formal notice in writing, and. served upon the plaintiffs, or upon their attorneys. Nor do we think that notice was waived. Or if it was in any manner waived, we think it was waived upon a condition precedent, which was never fulfilled. The only ground upon which it may be claimed that notice was waived, is the agreement of Johnston and Brayman to go out together to the place where the assessment was made, and the subsequent agreement that neither should go. Neither of these agreements was a waiver of notice. Brayman may have intended to go out to where the assessment was made'merely for the purpose of objecting to anything being done until he or his client received the proper notice. And afterward he may have concluded not to go, thinking that he could better present his objections to the proceedings to the court. But the spirit of the supposed agreement between Johnston and Brayman not to go out to where the assessment was had, was not fulfilled. It was fulfilled literally, but violated in spirit. Brayman evidently believed that neither party was to be represented before the jury when the assessment was made. And this was evidently the spirit of the agreement. But the defendant was represented, and ably represented too. He represented himself, and probably presented his cause to the jury with more effect than any attorney could have done for him.
The court below therefore erred in refusing to set aside said assessment. And therefore the orders and judgment of such óourt with reference to the said assessment will be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action to foreclose a note and' mortgage, given by B. S. Wilkins and wife to defendant in error. Mrs. Wilkins filed an answer under oath denying the execution of the note and mortgage. B. S. Wilkins filed no answer. John Poplin, the other plaintiff in error, filed an answer, setting up title in himself by conveyances subse9.uentto the date of the mortgage sued on. Verdiet and judgment were for defendant in error. Many matters are presented to our notice in the brief of counsel for plaintiffs in error, some of which require notice, while others have already been settled. The cases of Educational Association v. Hitchcock, 4 Kas. 36, and Swenson v. Aultman, 14 Kas. 273, dispose of the alleged error in overruling the motion for a continuance.
Objection is made to the petition, in that it failed to allege specifically that, at the time of filing, anything was due on the note and mortgage. The mortgage stipulated that on failure to pay interest on the note, or £axeg on mortgaged premises, when due, the whole amount of principal should become due; and the petition alleged a failure to pay interest and taxes, by reason of which failure “the whole amount of money became due and payable, and the said deed has become absolute.” Even conceding that there is a technical defect in the omission of such ordinary allegations as “that the amount is still due and payable,” or, that “the defendant, though often requested, has hitherto refused and does still refuse to pay the same,” yet the error is not one which in the interests of substantial justice calls for any interference with the judgment. A default was alleged. A right of action was shown to have existed. And the presumption would be, that such default and right of action had continued. No plea of payment was filed, and no offer to show that any had been made. The contest was upon another issue — the execution of the note and mortgage. The defendants were in no degree misled.
The execution of the mortgage was denied under oath. When offered, it appeared to have been duly acknowledged, and over the objection of defendants ° 3 % was admitted in evidence without further proof of its execution. This was proper. The acknowledgment furnishes prima fade evidence of the execution of the deed, and when so acknowledged it may “ be read in evidence without further proof.” (Gen. Stat., p. 188, § 26.) Of course, the matter is still open for further testimony, either written or oral, for the acknowledgment is not conclusive evidence. 'We see no error in the admission or exclusion of testimony that calls for a reversal of the judgment.
The defendants below called one of Moore's attorneys as a witness for them, and “offered to show by him-the declarations of Moore to witness whilst witness was his attorney and counsel, which testimony was objected to by plaintiff, as privileged.” “The court overruled the testimony offered, except so far as plaintiff Moore had voluntarjiy offered himself as a witness, but as to those matters permitted the evidence to be given — to which decision and ruling the defendants excepted.” This ruling of the court was substantially in accordance with the statute, and was not erroneous. (The State v. White, 19 Kas. 445.) The defendants then proceeded to examine said witness under the ruling of the court. His testimony was given accordingly, and it does not appear from the record that any specific question was asked which was objected to. The defendants seem to have rested on the general^ objection and ruling as above stated. Under the pleadings, and consent of parties, but a single question was left for the jury, and that was properly submitted to them.
In support of the motion for new trial defendants offered the affidavits of some of the jurors, that they misunderstood the import of a portion of the testimony. They do not say that if they had understood this portion of the testimony correctly they would have found a different verdict; and it is well settled, that a verdict will not be disturbed upon such affidavits. The State v. Dickson, 6 Kas. 209; Terry v. Bailey, 12 Kas. 539. Upon the whole record we see no substantial error, and the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action on an alleged oral agreement to convey land at the death of promisor in payment for services rendered promisor during his lifetime. Judgment was for plaintiffs. Defendant appeals.
George A. Cunningham and James C. Cunningham were brothers. David Cunningham and John V. Cunningham were sons of James. George A. Cunningham was a bachelor. The petition alleged that in 1894 George A. Cunningham came to live in the home of James C. Cunningham and that James furnished him with board, care, washing and expense money and performed labor for him for a period of nineteen years. The petition further contained this allegation:
“During said time Geo. A. Cunningham orally promised James C. Cunningham that he would pay him for the above services and expense at his death.”
The petition then alleged that thereafter George orally agreed with James and his wife that for the services rendered him by James he would will eighty acres of land owned by him to David and John V. Cunningham. It alleged that in pursuance of that agreement George executed a will devising the. eighty acres to David and John and that thereafter George executed another will revoking the former one, and devising the eighty acres in question to another person.
The action was brought by David and John for the value of the eighty acres. The case was tried before a jury and a verdict returned for appellees in the amount of $4,000. Judgment was rendered accordingly. From that judgment this appeal is taken.
Appellants urge as error first that James was an incompetent witness as to certain transactions between himself and George concerning which he was permitted to testify. Second, that the alleged agreement is within the statute of frauds and unenforceable. Third, that the contract for services as alleged was not proven.
It will be seen that while the suit is on the promise of George to James to devise the land to the sons of James in return for services rendered George by James several years before, still this promise depended for its enforceability on the alleged contract between George and James in 1894. If there was no contract between George and James that James could have enforced against George when George ceased to live with him and accept services under the alleged contract, then there was no consideration for the contract sued on in this case and it cannot be enforced. We must look to the situation and the rights of the parties as they existed at the end of the nineteen-year period during which James claims he was boarding and caring for George. Was there a contract alleged and proven between James and George that James could have enforced?
The only evidence on that point is that of James himself. This was objected to by appellants and the admission of it is urged here as error, but assuming and not deciding that the evidence was admissible still it was not sufficient to establish any contract. He testified that from 1894 to 1911 George lived in his home, during which time James bought the groceries and coal and killed hogs for meat. The next thing he testified about was a will which he claimed George made in 1926, willing the land to appellees in this case. There is other testimony as to statements made by George in 1926 as to the will he is claimed to have made, but what we are looking for is evidence of the first contract pleaded between James and George. There is no such evidence in the record. The demurrer of appellant to the evidence of appellees should have been sustained.
The judgment of the district court is reversed with directions to dismiss the case.
Sloan, J., not participating.
Harvey, J., concurs in the result. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action on a clause in a deed by which the grantee assumed and agreed to pay the mortgage, in the form of a trust deed, on the land, and for the balance due thereon after the sale of the real property under the trust deed. The jury answered special questions and returned a verdict for plaintiff for $118, for which sum judgment was rendered.
Defendant has appealed and argues that the assumption clause in the deed was inserted through error and mistake of the scrivener. The pleadings raised that issue and evidence was introduced thereon. The jury found against the contention of the defendant on this point, there was evidence to sustain the finding, the trial court approved it, and it is binding on this court.
Appellant next argues that the mortgage or trust deed in question was not sufficiently identified. There was only one. No one was confused about it. Even the appellant paid interest after he acquired title.
Appellant argues that his liability to pay on the assumption clause was no greater than that of his grantor. A clause, the same in substance, was in the deed by which appellant’s grantor obtained title, as it was in each of the deeds by which the property was conveyed after the mortgage or trust deed had been executed.
There is no substantial merit in any of the questions presented by appellant, and the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action on a sickness and accident insurance policy. Judgment was for plaintiff. Defendant appeals.
The policy sued on contained a clause near the beginning of that document in which the company agreed to insure plaintiff “against loss of life, limb, sight or time, resulting directly and independently of all other causes, from bodily injuries sustained through purely accidental means (suicide, sane or insane, is not covered) and against loss of time on account of disease contracted during the term of this policy, respectively, subject, however, to all the provisions and limitations hereinafter contained.”
This was followed by a number of provisions set out in paragraphs providing the payments that would be paid for specific injuries— what would be paid for total accidental disability; what would be paid for partial disability; what would be paid for hospital expenses and what would be paid for “confining” illness; and what would be paid for “nonconfining” illness.
Paragraph K provides that any accidental injury which resulted in “hernia, boils, carbuncles, felons, abscesses, ulcers, infection, septicaemia, ptomaine poisoning, cancer, diabetes, fits, peritonitis, apoplexy, sunstroke, freezing, hydrophobia, sprained or lame back” would be paid for as provided for in paragraphs H and I. These paragraphs are the ones which provide how much shall be paid for “confining” and “nonconfining” illness. The payments provided for in these sections are considerably less than that provided for in the paragraphs that state how much will be paid for an accidental injury.
Appellee in this case was injured by stepping on a piece of steel in his barnyard. What is commonly known as blood poisoning set in and appellee was in the hospital for several days, under the care of a doctor for several weeks, and unable to work for some months.
Appellant contends that appellee is only entitled to be paid what the paragraphs providing what shall be paid for illness say will 'be paid. Appellee contends that he should be paid what the paragraph providing what shall be paid for accidental injury says will be paid.
The trial court held that appellee was entitled to be paid for an ' accidental injury. In other words, it construed the policy as though paragraph K were not in it.
The question presented by this appeal is whether that interpretation was correct. There are two grounds upon which appellee urges that the court below was correct. In urging the first ground appellee quotes the following rule:
“It is a well-settled rule that where a policy of insurance is so drawn as to require an interpretation a construction most favorable to the insured will be adopted, for the reason that the company prepares the contract of insurance, thereby selecting its own language.” (Brown v. Accident Insurance Co., 114 Kan. 337, 338, 219 Pac. 505.)
He points out the facts that there are so many results set out in paragraph K that will entitle the appellee to draw only the smaller payments that they practically annul the insuring clause of the policy which has been quoted heretofore in this opinion. He claims the policy should be construed under the rule laid down in Pacific, etc., Co. v. Williamsburg, 158 Cal. 367. There the court said:
“Therefore the courts endeavor to carry out the contracts as made by the parties and, at the same time, prevent-if possible the exceptions and conditions from wholly devouring the policy.” (p. 370.)
On the other hand, appellant urges that the case comes under the rule laid down in Bank v. Insurance Co., 91 Kan. 18, 137 Pac. 78, as follows:
“It seems clear that when those competent to contract have settled upon the terms by which they are to be bound, neither can call upon the courts to make different terms.” (p. 25.)
It argues that there is no ambiguity in the contract we are considering. It points out that appellee had his choice of two contracts —one that had paragraph K in it and one which did not have that paragraph. The latter policy cost more money than the former and he chose the former. We have concluded that the position of appellant is well taken on this point. The position of appellee could not be sustained without in effect writing a new contract between appellant and appellee. The rule that when provisions in an insurance policy are ambiguous or susceptible of more than one construction the construction that will operate to the benefit of the insured will be followed, is a good one well sustained by the authorities. The trouble about applying it to this case, however, is that .the provisions in the contract under consideration are not ambiguous. There is no trouble in telling what the policy means when it is taken as a whole.
There is another reason urged why the court was correct in construing the policy under consideration just as though paragraph K had not been in it. That reason is based on the provisions of R. S. 1931 Supp. 40-1109, paragraph (a), as follows:
“No stock or mutual insurance company or association or other insurer shall issue or deliver any policy of insurance against loss or damage for the sickness or the bodily injury or death of the insured by accident to any person in this state . . . unless the exceptions of the policy be printed with the same prominence as the benefits to which they apply: Provided, however, That any portion of such policy which purports, by reason of the circumstances under which a loss is incurred, to reduce any indemnity promised therein to an amount less than that provided for the same loss occurring under ordinary circumstances shall be printed in bold-faced type and with greater prominence than any other portion of-the text of the policy. ...(») ... A policy issued in violation of this section shall be held valid but shall be construed as provided in this section, and when any provision in such a policy is in conflict with any provision of this section the rights, duties and obligations of the insurer, the policyholder and the beneficiary shall be governed by the provisions of this section.”
The policy in question was issued and delivered after the above law went into effect. Paragraph K comes within its provisions. That is, as appellants ask us to interpret that provision in the policy, it does reduce the indemnity to be paid because of the circumstances under which the loss was incurred. The purpose of the statute quoted above was to make it less likely that a person would buy a policy with a restriction on the liability such as is insisted on by appellant here and not realize just to what extent the liability was restricted. At the argument of this case it was insisted by appellant that this policy was issued and delivered in Oklahoma and consequently the above statute does not apply. It was insisted that appellant could have proved this had the point been raised. It urges that since the opportunity to prove this point was not afforded it on the trial in district court, that the case should be sent back to the district court for that fact to be determined. We cannot agree with appellant that this question of fact was not tried out in the court below.
The petition alleged that the residence and post-office address of plaintiff at the time of bringing the action was Arkansas City, Kan. The policy sued on gives the residence of insured as Hunnewell, Kan., at the time the policy was taken out. The application for the insurance gave the residence of the insured as R. F. D. No. 2, Hunnewell, Kan. This application was introduced in evidence by the answer of appellant. We think that these allegations in the pleadings and statements in documents introduced were sufficient, so that it must be concluded that the question of where the policy was issued and delivered was raised and settled by what was done in the court below, and that the court was correct in assuming that the policy was issued and delivered in Kansas. The fact is that appellant knew better than anyone else that the policy sued on did not comply with the statutes of Kansas. If it wished to raise the question that the insured actually lived in Oklahoma when the policy was delivered, then it should have pleaded that fact. It cannot now be heard to complain that it was not given the opportunity to disprove the claim that the delivery of the policy took place in Kansas.
It appears that the policy in question was issued and delivered in Kansas; that it did not comply with the law by having the paragraph in question printed in bold-faced type and with greater prominence than any other portion of the text of the policy. Since these things are true, then we are obliged to construe the policy as though paragraph K had not been incorporated therein at all. This appears to be what the trial court did.
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The opinion of the court was delivered by
Dawson, J.:
This case was here before. (Shrout v. Bird, 132 Kan. 617, 296 Pac. 369.) It was an action for damages for injuries sustained by plaintiff when she was struck, knocked down and dragged some distance by defendant’s delivery truck at a street intersection in Hutchinson.
Madison street runs north and south and is forty-four feet wide; and First avenue, which is seventy-two feet wide, runs. east and west intersecting it. Plaintiff resided on the north side of First avenue a short distance east of the intersection. According to the evidence for plaintiff, it appears that on March 5, 1929, she and a neighbor, Mrs. Skinner, went out for an evening walk some distance toward the southwest. As they returned they crossed Madison eastward and then started north across First avenue. As plaintiff and her companion were about to step into First avenue they looked eastward and saw defendant’s truck nearly a block away coming west on the north side of the street. The women had taken but a few steps into the street when the truck hit them. Plaintiff testified:
“It knocked me under the truck and dragged me around the corner. . . . I was not knocked insensible, I was stunned but I knew what was going on.Y7hen the car stopped I was lying on my right side. ... So I had to lie there until some one came to me, and a lady came and also the driver of the truck, and pulled me from between the wheels toward the curb on that comer, the southwest comer, and they carried me over and put me on .the parking by the curb or on the curb; and the driver bent over me and I asked him why in the world he didn’t try to miss us, and he said, ‘I didn’t see you until I hit you.’ ”
On cross-examination she testified:
“Q. Anyhow, you didn’t look to see what became of the car? A. I looked up and saw this truck advancing on the north side of the street.
“Q. And that was about 300 feet away? A. Yes, sir.
“Q. And then you never looked again? ... A. No, I didn’t. . . .
“Q. Do you remember what part of the car, when you were knocked down, you caught hold of? A. Well, I thought it might have been the axle. I grabbed the first thing.
“Q. You grabbed hold of it? A. Yes, sir. ... I do not know how many feet the car dragged me in that position. I am not a good judge of distance, but it dragged m.e around catawampus over toward Marshall’s house. [West of the intersection.] I don’t know how far it was.”
Mrs. Skinner testified:
“We walked to the curb of the parking. We looked each way to see if there was any traffic and this Ford truck, Wardrobe Dry Cleaning truck, was coming from the east, at about the bridge. . . .
“. . . The car came like a rocket from Cow creek bridge while we were taking two steps and hit me before I had time to think.
“The bridge is about three-quarters of a block down the street. This would be an estimate.”
There was a good deal of this sort of evidence adduced in behalf of plaintiff. On the other hand, the evidence on defendant’s behalf was that plaintiff and her companion were walking diagonally from the west side of Madison street towards the northeast comer of the intersection when the truck hit them; that the driver of the truck stayed on the north side of First avenue until he passed the center line of the intersection and that he was headed south on the west side of Madison before the accident occurred. The fair inference of that evidence, if believed, would be that defendant’s track driver was operating the delivery truck as he had a right to do and that the accident occurred because of negligence or contributory negligence of plaintiff.
The jury returned a verdict for plaintiff and answered special questions, some of which read:
“i. Before starting to cross First avenue to the north, did the plaintiff look to the east and observe the defendant’s car coming from the east? A. Yes.
“5. Was the defendant’s truck traveling in a southwesterly direction when it struck the plaintiff? A. Yes.
“6. About how far did the defendant’s truck go before it was possible to stop it after striking the plaintiff? A. About thirty (30) feet.
“7. Could the plaintiff have seen the defendant’s car coming west on Madison avenue, after she started across First avenue, had she looked down said street? A. Yes.
“8. Did the plaintiff while proceeding in a northerly or northeasterly direction across First avenue look in front and to the right to see whether defendant’s automobile was approaching? A. No.
“9. Did the plaintiff do anything to avoid being struck by the defendant’s automobile? A. No.
“10. Did the driver of defendant’s car do everything in his power to stop the automobile and avoid striking the plaintiff when he first saw her? A. Yes.
“11. Do you find that plaintiff through her own negligence contributed to the injuries complained of? A. No.
“13. Was the plaintiff walking diagonally across said intersection in a northeasterly direction from the southwest corner of said intersection of Madison street and First avenue west at the time she was struck by defendant’s automobile? A. No.”
Defendant’s motions to set aside the special findings, for judgment notwithstanding the general verdict, and for a new trial were overruled, and judgment was entered for plaintiff.
Defendant assigns and argues certain errors, the first of which relates to the overruling of his demurrer to plaintiff’s evidence, his contention being that she was shown to have been guilty of contributory negligence. Plaintiff testified that before she stepped into First avenue she looked to the east and saw defendant’s delivery truck coming westward on the north side of First avenue, but that she did not look in that direction again. The jury’s findings are to the same effect. It does not appear that this evidence or these findings convict the plaintiff of contributory negligence. (Fenn v. Kansas Gas & Electric Co., 118 Kan. 131, 234 Pac. 77.) Taking plaintiff’s evidence as true — which we must do because the jury believed it — there was nothing about the fact that the truck was coming west on the north side of the street which required her to keep her eye constantly upon it. She could rightfully presume it would keep to the north side of the street until it had reached the intersection. (Mosso v. Stanton Co., 75 Wash. 220, L. R. A. 1916D 943.) She could rightfully presume it would be driven at reasonable speed and that it would not cut the corner and thereby imperil her safety. True, the jury finds she did not do anything to avoid being struck, but what should she have done? Pedestrians are not required to scatter in all directions when the driver of a delivery truck runs amuck among them. We can discern no analogy between the instant case and those of Hanabery v. Erhardt, 110 Kan. 715, 205 Pac. 352; Curry v. Wichita Railroad & Light Co., 128 Kan. 537, 278 Pac. 749; and Antrim v. Speer, 133 Kan. 297, 209 Pac. 643, which counsel for defendant press upon our attention. The jury found that no negligence on plaintiff’s part contributed to her injuries and the record does not suggest any evidence of such negligence which the jury were bound to believe.
Defendant presents an argument based upon what he chooses to designate as the physical facts to disprove the evidence in plaintiff’s behalf. But that argument is predicated on the assumed truth of certain testimony concerning the skid marks of the truck showing that it had kept to its own side of First street until it passed the center of the intersection and then turned south on Madison. The jury were not bound to accept that evidence as true even if it were not contradicted. (Citizens Finance Co. v. Seamans, 129 Kan. 743, 284 Pac. 422; Young v. Lucas, 132 Kan. 484, 296 Pac. 362.) Moreover, defendant’s evidence on this point really proved too much, because if it were true plaintiff would not have been struck by defendant’s truck at all, since she was not thereabout. Yet one indisputable fact is that she was struck, run down and injured, so in a conflict of evidence based on so-called physical facts the jury were bound to make a choice of those most worthy of credence, and their determination of that issue cannot be disturbed.
Counsel for defendant would have us attach some present significance to the record made in the first trial of this action, and also upon the record made in the trial of the companion case of Mrs. Skinner against this defendant. Those matters are no part of this record. Therefore we cannot take them into consideration. This appellate review is concerned with and limited to matters developed in the trial of this case as presented within the compass of this ’record.
Error is predicated on an instruction which the trial court gave touching the duty of pedestrians about to cross a street. It told the jury that such persons are not bound to be continually on the lookout to avoid injury from vehicles; that while they must be prudent themselves and use reasonable care for their own protection, they have the right to assume that automobile drivers will exercise a proper degree of care and will observe the traffic laws and ordinances. It is needless to reproduce the criticized instruction in full. It was a fair statement of pertinent law and contained no inconsistency.
Complaint is also made of the trial court’s refusal to give an instruction asked by defendant. However, a careful perusal of those given reveals that the pertinent law was fairly and comprehensively stated, and error is not shown under this assignment.
It is finally contended that passion and prejudice are manifestly inherent in the verdict — presumably because of the amount, $2,-062.15. It is for a good round sum, but the evidence shows that the woman, who was thirty-six years old and in good health prior to the accident, suffered various painful injuries, her nerves were shattered, and that she is probably partially disabled for the rest of her life. An examination of the record does not cause this court that misgiving of probable injustice we often experience in dealing with questions of excessive verdicts. In Hardwick v. Railways Co., 114 Kan. 843, 845, 220 Pac. 1043, it was said:
“Error based on an excessive verdict and judgment is seldom an easy question for an appellate court to solve, and it is peculiarly difficult where the sum allowed is for pain and suffering. Of course, rules for dealing with excessive verdicts are not altogether wanting; if on reading the record the conscience of the court is shocked at the verdict, a remittitur or reversal is ordered; but there is no uniform yardstick, no hard and fast rule, by which the ex-cessiveness of a verdict can be measured and determined as in ordinary mathematical calculations. In this case, when we give full credence to the plaintiff’s testimony touching his pain and suffering, as we are bound to do because the jury gave it such credence, the verdict and judgment are not so large as to produce such psychological reaction on the judicial conscience as to impel it to order a reduction or reversal.”
See, also, Fenn v. Kansas Gas & Electric Co., 118 Kan. 131, 234 Pac. 77; Ellis v. Kansas City Public Service Co., 131 Kan. 555, 559-561, 292 Pac. 939.
A painstaking review of this case reveals nothing irregular or erroneous 'which would permit the judgment to be disturbed. It is therefore affirmed. | [
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The opinion of the court was delivered by
Hutchison; J.:
This is an action for damages against the Prairie Oil and Gas Company and five individuals, commenced in the district court of Riley county by A. W. Long, the organizer, manager and heaviest stockholder of the Long Oil Company. This appeal is by the plaintiff from two adverse rulings of the trial court shortly after the filing of the petition and before the issues were joined. The first ruling was the granting of an injunction restraining- and enj oining the plaintiff from taking the depositions of the defendants, and the second was the sustaining of a motion to. strike out certain portions of the plaintiff’s petition relating to fiduciary relationship and conspiracy.
The defendant Womer resides in Riley county; all the other defendants, including the officers of the defendant' company, whose depositions were sought to be taken, reside in Montgomery county, Kansas, and the defendant company is a Kansas corporation with its principal office in Montgomery county.
The petition was filed August 22, 1931, and notices were served to take depositions of defendants except Womer and also officers of defendant company in Montgomery county on the 9th of September following and of Womer in Riley county on September 14. The defendants made application to the district court of Riley county for an order restraining and enjoining -plaintiff from taking their testimony by way of deposition, alleging that plaintiff was .not proceeding in good faith, that the attempt was a fishing expedition and for the purpose of harassing and oppressing the defendants, that they each and all intended to be present in court at the time of the trial, and that they knew of no reason that would prevent them from being personally present and producing at the trial all of the records and other documents bearing upon the matters and things set out in plaintiff’s petition. Evidence in support of the application was introduced in the form of affidavits and oral testimony, and the court, after overruling the demurrer of the plaintiff to the sufficiency thereof, received in evidence the affidavits offered by plaintiff and made eleven findings of fact, concluding with the following:
“The court further finds from the testimony introduced herein that there is no reasonable ground upon which to predicate a belief at the present time that there is an' actual necessity existing for the taking of said depositions.”
From the judgment rendered in favor of the defendants the plaintiff appeals, urging in the first place that the statutes of the state (R. S. 60-2803, 60-2821 and 60-2822) accord to a litigant the right to take the deposition of the opposing parties and that there are no statutory restrictions or limitations on that right and privilege, and cite the early decision of In re Abeles, 12 Kan. 451, which fully sus tains that contention. Appellant also cites the cases of In re Davis, Petitioner, 38 Kan. 408, 16 Pac. 790, In re Cubberly, Petitioner, 39 Kan. 291, 18 Pac. 173, and Hanke v. Harlow, 83 Kan. 738, 112 Pac. 616, and points out the distinctions between the facts and circumstances in them and in the case at bar. These three cases restrict the right and privilege when the taking of the deposition does not seem to be in good faith and for the purpose of using the testimony at the trial. All of these cases condemn the practice of fishing expeditions, or attempts to learn in advance the testimony of the opposing party. These cases presented features not involved in the Abeles case, which caused the court to conclude that the taking of depositions under such circumstances was an abuse of judicial authority and process, and in the Hanke case it is specifically stated that the holding in the Abeles case does not apply.,
In the case of In re Merkle, Petitioner, 40 Kan. 27, 19 Pac. 401, cited by both parties, the earlier cases are all reviewed and distinctions are clearly made, with this conclusion:
“But as a rule a party has a right to take the deposition of witnesses so as to provide against all contingencies as a mere matter of precaution; but before a party shall be subjected to such process, there must be some reasonable ground upon which to predicate a belief that there is an actual necessity for it.” (p. 30.)
This construction, with the approval of it in the Hanke case, is the last word on this proposition in this state, and the finding of the trial court in the instant case is exactly within its requirements, that there must be reasonable grounds to believe an actual necessity exists for taking the deposition. The statute (R. S. 60-2819) enumerates some of those reasonable grounds as advanced age, infirmity, etc., and the court in its wide discretion will recognize other grounds, and further, as was well said in the Hanke case, the court always has the power to protect a party whom it restrains in this manner from any injurious consequences.
It is urged that there was no finding that the plaintiff was not proceeding in good faith, as was alleged in the application and emphasized in most of the opinions cited. While there is no such specific finding, it is effectually contained in the finding that there was no reasonable ground for believing there was any actual necessity for doing what the plaintiff was proposing to do.
We think there was evidence sufficient to justify the overruling of the demurrer to the defendants’ evidence and to sustain the findings.
Appellant’s brief ably discusses the matter of taking the depositions of those not parties to the case, but we understand the order of the court only extended to parties and officers of the defendant corporations.
Error is assigned in striking out of the petition paragraph five, alleging fiduciary relationship between the plaintiff and the defendant Womer, and also in striking out two sentences in paragraph six, alleging conspiracy between the defendants and other oil and gas companies and individuals without naming them. The grounds of the motion for striking out the former are that the allegations are redundant, prejudicial and not sufficient to establish a fiduciary relationship, and for the two sentences on conspiracy with others not named are because they are redundant, surplusage and not germane to any part of the cause of action. There are pages of other allegations as to things done and said by defendant Womer and by the plaintiff, and fiduciary relationship is a matter to be established by proof of existing facts. It is said in appellant’s brief that the trial court took the position that the ¿negations of this paragraph were not sufficient to create a fiduciary relationship. In this we think the court was correct. As to the conspiracy feature, no defendant should ever be required to meet allegations as to defendants being in a conspiracy with other oil and gas companies and individuals not named or described. If they can later be named a request for leave to amend might be proper, but as now stated the motion was properly sustained.
The judgment'is affirmed.
Johnston, C. J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
The plaintiffs brought these actions to recover on life insurance policies in which they were named as beneficiaries. The defense of present concern was that the policies were procured by the fraud of the insured. The legal question to be determined in this appeal is the significance which should be given to an'incontestable clause which was one of the terms of the policies.
On March 27, 1927, one Herbert S. Thomas made application to the Metropolitan Life Insurance Company for two policies of life insurance, one in which his wife, Linnea Thomas, was to be named beneficiary, and the other in which the proposed beneficiaries were Clara T. and Richard E. Thomas. In each of the applications was a questionnaire requiring answers by Thomas touching his health, last sickness and its duration, his infirmities if any, medical and hospital attention he had received in the preceding five years, and the like. In reliance on the answers of Thomas to this questionnaire, two policies of $1,000 each, dated April 26, 1927, were issued by the defendant company. In each of these policies was the following provision:
“This policy shall be incontestable after it has been in force for a period of two years from its date of issue, except for nonpayment of premiums, . . .”
On October 23,1928, which was one year, five months and twenty-seven days after these policies were issued, Thomas died. On February 11, 1929, these plaintiffs filed suits in the circuit court of Jackson county, Missouri, to recover on the policies. On March 13, 1929, defendant filed answers in those suits, pleading that the policies had been issued in reliance upon the truth of the statements and representations Thomas had made in his applications, and that those statements and representations were false in material matters specified in detail.
On motion of defendant the circuit court ordered plaintiffs to give security for costs. That order was not obeyed. Defendant then filed a motion to dismiss; and on May 3, 1929, the actions were dismissed for failure of plaintiffs to give security for costs.
About a year later, on April 11,1930, the present actions to recover on the policies were commenced in the district court of Wyandotte county, Kansas. On May 10, 1930, defendant filed its answers set ting up the same defenses of fraud it had pleaded in the Missouri actions. Defendant pleaded the commencement of the Missouri cases and that it had timely pleaded its defenses of fraud therein. On June 8, 1931, at the request of counsel for the litigants, these causes were set down for hearing on questions of law in advance of trial on the issues of fact. The pleadings, policies, and copies of the files and orders in the Missouri cases and certain explanatory statements of counsel were presented and submitted to the court to enable it to decide in each of the cases — ■
“Whether defendant, because of the incontestable clause in its policy, is thereby precluded from establishing its defenses, as stated in its answer, to plaintiffs’ action on said policy.”
The trial court ruled that defendant was not precluded by the incontestable clauses from maintaining its pleaded defenses. From this ruling plaintiffs appeal.
The main point urged against the judgment is that when these actions were filed in Wyandotte county the policies containing the incontestable clause had been in force and effect for more than two years from their date of issue, and in consequence defendant was barred from setting up the defense of fraud alleged to have been practiced by the insured in obtaining them. Plaintiffs insist that the mere filing of answers in the Missouri cases setting up the defenses of fraud was not a contest of the validity of the policies; and they argue that when an action is begun and then dismissed it leaves the parties in the same position as though no action had ever been instituted. Plaintiffs also suggest that when defendant filed its motions in the Missouri court that the actions be dismissed because of plaintiffs’ failure to obey the order of court to give security for costs, such tactics were equivalent to a withdrawal of its answers in which it had pleaded the defense of fraud. In plaintiff’s behalf it is also suggested that in order for defendant to be relieved of its liability on the policies on account of fraud it was incumbent upon it to initiate and prosecute some appropriate action or proceeding within two years to have the policies canceled on account of fraud, and having neglected to do so the incontestable clause effectually barred such a defense to the present actions.
In support of the foregoing line of argument plaintiffs cite various precedents, including our own case of Priest v. Kansas City Life Ins. Co., 119 Kan. 23, 237 Pac. 938. In that case a clause in the insurance policy making it incontestable “after one year from date of issue” was enforced according to its terms. In the policies before us, however, the incontestable clause is materially different in text and terms. They are to be incontestable after they have been in force for a period of two years from date of issue except for nonpayment of premiums. Ere that period elapsed Thomas had died and the obligation of the policies was thereby matured and transformed into a debt due from defendant to the beneficiaries, subject to whatever valid defenses could be effectively offered thereto. It is rather obvious, we think, that this incontestable clause contemplated that the insured should be alive and in good standing with the insurance company by payment of the requisite premiums regularly for the two-year period.
In Jordon v. United States, 36 F. 2d 43, the action was upon two policies of war-risk insurance. The government’s main defense was that plaintiff’s infirmities did not arise from his service in the army, but that he was thus afflicted at the time of his enlistment. The terms and conditions of the war-risk insurance policy were modified (to the greater advantage of the insured) by later acts of congress, so that it was ultimately enacted that such policy should be incontestable after it “has been in force six months.” Plaintiff had enlisted on January 5, 1918. On March 11, 1918, the first policy was dated and issued to him, and the second on June 1, 1918. During the month of June he developed epilepsy and on July 1,1918, he became totally and permanently disabled, and he was discharged from the army on September 14, 1918. The circuit court of appeals held that the war-risk insurance policies had matured before they had been in force for six months, and consequently the six-months’ incontestable provision had no application.
In McDonnell v. Mutual Life Ins. Co., 116 N. Y. S. 35, a policy of life insurance provided for a proportionate distribution of surplus on policies in force at the expiration of fifteen years from date of issue. The insured died eleven days before that period had expired. It was held that there was no right to a distributive share of surplus under this policy because the words “in force” required that the insured should be alive at the termination of the fifteen-year period.
In McKenna v. Metropolitan Life Ins. Co., 220 N. Y. S. 568, the action was upon a policy of insurance which contained a two-year incontestable clause substantially like the one at bar. The policy was issued on March 4,1924. The insured died on August 24,1925. Ac tion to recover on the policy was begun on April 12, 1926. The defendant’s answer, filed May 17, 1926, set up the defense of fraud and misrepresentation. On the assumption that notwithstanding the death of the insured in less than a year and a half after the policy was issued it was in force two years before the action was begun, and therefore incontestable, the beneficiary moved for judgment. On appeal it was held that the two-year incontestable clause in the policy did not bar the defense of fraud where the insured died before the expiration of that period, although the answer pleading such defense was not filed until after two years; and it was further held that the words “in force” in the incontestable clause contemplated that the insured should be alive at the end of the two-year period.
The views of the courts summarized above commend themselves to our judgment, but there is much good authority at variance therewith. (See annotation to Mutual Ins. Co. v. Hurni Co., 263 U. S. 167, 68 L. Ed. 235, in 31 A. L. R. 108 et seq.)
In Jefferson Standard Life Ins. Co. v. McIntyre, 285 Fed. 570, the incontestable clause read:
“After this policy shall have been in force for one full year from the date hereof it shall be incontestable for any cause except for nonpayment of premiums.” (p. 571.)
Commenting on that clause the court said:
“Are the policies ‘in force,’ as contemplated in the clause, after the death of the assured occurring prior to one year from the date of the policy? It seems to me that the proper construction of this clause is that it contemplates the continuance in life of the assured during that year; else why except the nonpayment of premiums?” (p. 571.)
This reasoning was disapproved by the circuit court of appeals in 294 Fed. 886, on the assumption that the point was governed by the decision of the United States in the Hurni case cited above. But in the opinion of the appellate division of the New York supreme court in the McKenna case, supra, it vras clearly pointed out that the incontestable clause in the Hurni case was quite different from the one in the McIntyre case. In the Hurni case it read:
“This policy shall be incontestable, except for nonpayment of premiums, provided two years shall have elapsed from its date of issue.” (p. 174.)
The same distinction in these incontestable clauses is again pointed out in Wolpin v. Prudential Ins. Co., 228 N. Y. S. 78, 80; and the McKenna case is followed in Van Saun v. Metropolitan Life Ins. Co., 239 N. Y. S. 698, where the identical clause we are considering here was presented for judicial interpretation.
Undoubtedly it was because of the similarity in the language of the incontestable clause in the Hurni case and in the Priest case, supra, which induced this court to quote approvingly from the. opinion in that case.
Our statute of 1927 (R. S. 1931 Supp. 40-420), which forbids any life insurance company authorised to do business in this state to issue any life insurance policy (other than industrial, etc.) unless it contains a prescribed two-year incontestable clause, was not enacted for some months after the policies now before us were issued, so it has no bearing on the legal questions of present concern. We may take notice, however, that under its terms our present question of law is not to be left to judicial determination. The statute expressly declares that the policy “shall be incontestable after it has been in force during the lifetime of the insured for a period of not more than two years from its date, except for nonpayment of premiums.”
Passing to the question whether the defenses of fraud pleaded to plaintiffs’ actions in the Missouri court were available after those actions were dismissed in Missouri and recommenced in Kansas, it will be noted that defendant’s answers were filed in the Missouri lawsuits before the two-year period had terminated. Plaintiffs argue that defendant caused the dismissal of the Missouri actions by filing motions to dismiss. Having timely joined issues on its defenses of fraud, defendant was entitled to all the rights of any litigant in any lawsuit. Defendant had a right to ask that'plaintiffs give security for costs. It had a right to complain of plaintiffs’ .disobedience of the court’s order regarding costs. An appropriate way to direct the court’s attention to that matter was by a motion to dismiss. The actions were dismissed by the court on the express ground of plaintiffs’ failure to give the security for costs. In that situation it does not seem just to hold that defendant was responsible for the dismissal of the Missouri actions. Rather the plaintiffs were responsible, in our opinion, since it was their disregard of the court’s order which brought about the dismissal of the actions. If an insurance company can be maneuvered out of a defense of fraud which is timely interposed to a suit on an insurance policy by the plaintiff permitting or causing his suit to be dismissed — to be recommenced after the two-year period of incontestability has ended — a clever but not very ethical practice of evading an issue of fraud in procuring insurance policies has been discovered. In Ætna Life Ins. Co. v. Daniel, (Mo.) 42 S. W. 2d 584, the supreme court of Missouri had to deal with this subject. One Daniels held a policy of life insurance which had lapsed for nonpayment of premiums. On his application accompanied by satisfactory statements touching his condition of health, his policy was reinstated on January 27, 1928. He died on August 31, 1928. On January 17, 1929, the insurance company commenced an action to cancel the policy for fraud in procuring its reinstatement. The defendant beneficiary lodged a demurrer to plaintiff’s bill. It was sustained, and the cause eventually reached the supreme court which affirmed the judgment on the ground that the insurer had an adequate remedy at law by setting up the fraud as a defense to an action on the policy. But the court recognized the difficulty which might confront the insurance company if action to recover on the policy was deferred until after the period of contestability for fraud had expired, and said:
“This brings us to the contention made by appellant and denied by respondent that, even if a suit on the policy had been brought prior to the filing of the plaintiff’s bill and an answer setting up its defense had been filed therein by the insurer, the plaintiff in such suit on the policy might dismiss that suit and bring another after expiration of the contestable period, in which case the insurer would be barred from contesting its liability.
“In Powell v. Mutual Life Ins. Co. of New York, 313 Ill. 161, 144 N. E. 825, 36 A. L. R. 1239, cited by both parties herein, the supreme court of Illinois, concerning a similar contention, said: ‘But it is argued that in case of death and suit on the policy started within two years, where the insurer has filed pleas within the two years, the beneficiary may dismiss his case and bring another after the two-year period has expired, when the insured cannot plead his defense of fraud. This cannot be. Piling such pleas within the two years stops the running of that period, and, where not voluntarily withdrawn, renders available in a later suit on the policy the defense set out in such plea. The insurer has by such pleas complied with the “incontestable” clause, and it will avail the beneficiary nothing to dismiss his suit.’ (313 Ill. 161, 144 N. E. loc. cit. 828, 36 A. L. R. 1239.)
“The holding in Powell v. Ins. Co., supra, appeals to us as based on sound reason and justice. If the beneficiary brought an action on the policy within the contestable period, and the insurer, within such period, tendered therein a defense it was then entitled to make, and the beneficiary dismissed such suit and after the expiration of the contestable period brought another suit on the policy, the beneficiary should then in reason and justice be held to be precluded from asserting that the insurer had not contested the policy within the time prescribed. Certainly no court would permit a litigant thus by his own act to deprive his adversary of a valid defense which such adversary had timely offered. And we agree with the Illinois supreme court that, by thus filing its plea within the contestable period, such plea not being voluntarily withdrawn, the insurer would have ‘complied with the “incontestable” clause/ and would be entitled to set up such defense in any subsequent suit brought by the beneficiary on the policy.” (p. 587.)
See an instructive discussion of this subject in New York Life Ins. Co. v. Hurt, 35 F. 2d 92; also annotation to Powell v. Mutual Life Ins. Co., 313 Ill. 161, in 36 A. L. R. 1245 et seq.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Sloan, J.:
This was an action in replevin, Whereby the plaintiff sought to recover an automobile on which it held a mortgage.
The original petition alleged that the plaintiff was the owner of a Dodge automobile; that the value of plaintiff’s special ownership in the car under and by virtue of its chattel mortgage was the sum of $684.67, and that plaintiff had demanded possession of the car, which the defendant unlawfully refused. In the trial of the case, with the consent of the court, the plaintiff filed an amended and supplemental petition in which-it set out the note described in the mortgage, which was in the amount of $650, payable in two install- merits in the amount of $325 each, on October 1, 1930, and January 1, 1931, respectively, and asked judgment for $672.50, with interest thereon at the rate of ten per cent from April 20, 1931. The note contained the following provision:
• • with interest jrom rmturity at the rate of twelve per cent per annum. It is agreed that on failure to pay any installment of principal or interest when due, the entire balance shall become due and payable at once. If any installment or portion thereof shall remain unpaid for five days after the date when the same is due, I (or we) promise to pay in addition thereto the sum of one dollar plus cost of collection and in case this note is placed with an attorney or any collector for collection or foreclosure, I (or we) agree to pay an attorney or collection fee of not less than ten per cent of the amount due, which shall be added to the principal of this note. . . .”
The defendant answered, admitting the execution of the note and mortgage, and alleged that the note was given in part payment of the purchase price of a Dodge coupé, which was $1,320; that the automobile was defective and almost Worthless, and was not suitable for the purpose for which it was constructed and sold. He asked damages in the sum of $1,200. The reply consisted of a general denial. The case was tried on these issues. There was evidence offered in support of the petition, and evidence tending to prove the allegations of the answer. The case was submitted to the jury to determine the facts. The court in its instructions to the jury ■ outlined the issues, and, among others, gave instruction number nine, which is as follows:
“9. If your verdict shall be for the plaintiff, you should find the amount due on said notes, with interest thereon by their terms, less the amount, if any, you find under the evidence and these instructions, the defendant is entitled to deduct from said amount, and such amount would be your verdict in this ease. You should also find the value of said automobile at the time it was taken under the replevin writ in this case.”
The jury returned the following verdict:
“We the jury impaneled and sworn in the above-entitled case, do upon our oaths find for the plaintiff; that at the commencement of this action the automobile described in plaintiff’s petition was unlawfully withheld from plaintiff by defendant, and that the plaintiff was and is entitled to its immediate possession, or its value at the commencement of this action, which value we find to have been at that time $678.50. We further find the usable value of said automobile since the commencement of this action to be $180; and we further find that at the commencement of this action defendant was indebted to plaintiff on the two notes described in said chattel mortgage in the sum of $628.45.”
The court rendered judgment on the verdict in favor of the plaintiff and against the defendant. The defendant appeals.
It is the contention of the appellant that the court erred in giving instruction number nine in that it instructed the jury to determine the amount due on the note, with interest thereon by its terms. It will be noted that the note by its terms provided for interest at the rate of twelve per cent per annum, and for an attorney fee of not less than ten per cent of the amount due. The rate of interest specified violates the statute. (R. S. 41-102.) The agreement to pay an attorney fee is void. (R. S. 67-312.)
The appellee argues that since the court told the jury, in defining the issue, that the plaintiff was claiming the sum of $672.50, with interest thereon at the rate of ten per cent per annum from October 27, 1930, that the jury could not have been misled by this instruction. The difficulty with this argument is that the claim of the appellee was invalid under the statute. The law is that where a person contracts for a greater rate of interest than ten per cent per annum he shall forfeit all interest in excess of ten per cent, and in addition thereto forfeit a sum equal to the amount of interest contracted for in excess of ten per cent. (R. S. 41-102.) The appellee was only entitled to recover the principal of the note, together with interest at eight per cent from its maturity. The jury found that there was due the appellee on the notes $628.45. This is less than the principal of the notes. It is evident the jury allowed some amount on appellant’s claim for damages. We have no w]ay of determining how the jury arrived at this amount. If we knew the amount of damages allowed, the judgment could be corrected. Without this information it must be held that the giving of the instruction was reversible error.
The judgment of the district court is reversed. | [
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The opinion of the court was delivered by
Smith, J.:
Defendant was convicted on three counts of violations of the prohibitory law. He appealed.
This case was formerly decided by this court in State v. Williams, 134 Kan. 125, 4 P. 2d 453. In that opinion the conviction of transportation of liquor and maintaining a nuisance was reversed, and the conviction of possession of liquor was affirmed. A motion for rehearing was allowed on the question of the admission in evidence of some statements made by the wife of appellant to the sheriff. These statements were not made in the presence of the appellant. A brief statement of the facts will be necessary to make the question clear.
A farmer boy found a sack of liquor some distance from the public highway in a field of kafir corn which he was cutting. The sheriff was notified and came out that night. He, together with one other, concealed themselves and watched the liquor. Just about dark defendant drove up in his car and stopped.' Defendant got out and entered the field. As witnesses testified, he zigzagged around in the field, and when he was at a point some forty feet from the liquor he ran into the sheriff. When he saw the sheriff, according to the sheriff’s evidence, he said,- “It looks like somebody was tipped off.” Defendant testified that what he said was, “It looks like somebody has been tipped off.” There were two tall - sunflowers about equal distance from the liquor. Defendant claimed that he had stopped the car and gone into the field to attend to a call of nature. His belt was unfastened when the sheriff arrested him.
On the trial of the case the sheriff was called and testified to certain statements that the wife of appellant had made, not in the presence of the appellant. This testimony was objected to and was as follows:
“Q. And did you ask Mrs. Williams to come up to the county attorney’s office? A. Yes, sir.
“Q. Were you-present when she was questioned there? A. Yes, sir.
“Q. Just tell the jury, in your own words, what she said about her eyes, or about who was driving the car first. A. She said she was driving it.
“Q. Do you recall whether or not she— . . .
“Q. What did she say about her eyes? ... A. Well, she said that her eyes had been poor, and she had told her husband that she believed she could see better to-night, and she turned off the lights to show him that she could drive without any lights on that car.
“Q. Did she say where she told him that? . . .
“Q. Just one preliminary question. Mrs. Williams, the party you are talking about here, was in the car at the time you went out to it, with Harry Williams, north of the kafin-corn field? A. Yes, she was in the car.
“Q. All right, now what did she say about whether or not the lights were - on, if she said anything, from the time after they left town? A. You mean at the time I walked out to the car, or when—
“Q. No, up here in the office? . . .
“Q. What did she say? A. As I remember it, she said that she had drove from the schoolhouse over there.
“Q. Did she say anything about whether they had had them on until they got to the schoolhouse? A. Well, if she did, I have forgotten it; I don’t know.
“Q. Did she say they had stopped at the schoolhouse? A. Yes.”
Also, in this connection the testimony of the sheriff as to statements made by appellant becomes important. It is as follows:
“Q. Now was you present when Harry Williams was questioned about this case? A. Yes, sir.
“Q..What did he say about his wife’s eyes? A. He said they were all right.
“Q. What did he say about her turning off the lights and saying anything to him that she could drive with the lights out? A. He said it didn’t happen.
“Q. What did he say about the lights, having the lights on after they left town? A. I believe he said they didn’t have the lights on at all.”
In the former opinion in this case it was pointed out that the admission of the statements of the wife was urged as error, but it was held that they were statements of one charged jointly with appellant and were admissible under the rule laid down in State v. Winner, 17 Kan. 298; State v. Mullins, 95 Kan. 280, 147 Pac. 828; State v. Shaw, 108 Kan. 781, 196 Pac. 1100. These cases hold that statements of a codefendant made after the commission of the crime are admissible in the trial of the principal when they tend to prove the commission of the crime by the principal. On the former presentation of the case the record was not clear on the point and it was assumed that the wife was charged jointly with her husband. In the motion for a rehearing, however, and in the argument on rehearing it is made plain that the wife was not charged jointly with her husband. She was not charged with anything for two or three days after the arrest of her husband. It was this fact that prompted the court to allow the rehearing. On the rehearing a further examination of the authorities moves us to conclude that there was no evidence that the wife was a coconspirator with her husband— hence the evidence was inadmissible for the reason that declarations of a coconspirator are only admissible when the conspiracy is so far proved as to make the fact a jury question.
The remaining question is, Was the inadmissible evidence sufficiently prejudicial to warrant a reversal? We have concluded that it cannot be said that the evidence was not prejudicial. The case was a circumstantial one. The evidence connecting appellant with the liquor in the field was slight, to say the least. The fact that the lights were out on the car while the husband was in the field was a circumstance slight, to be sure, but still a circumstance which had some weight with the jury on the question of whether appellant just happened to stop at that particular place for the reason he stated or drove there as part of a prearranged plan. It was, no doubt, argued to the jury that the lights were turned out in order that the presence of the car would be less noticeable. The fact that the statements of the wife contradicted the statements of appellant also had some weight with the jury.
From what has been said it follows that the judgment of the district court is reversed with directions' to award the appellant a new trial.
Johnston, C. J., and Burch, J., dissenting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an award of damages made by the jury, and approved by the trial court, in a proceeding t'o condemn a right of way for an electric transmission line across the farm- of Charles R. Murphy in .Dickinson county. For convenience we.shall refer to the landowner as plaintiff and the condemning corporation as defendant, being the-terms'used in'reference to them in the court below. The principal questions here argued are the elements which should be taken into consideration in determining the amount of the award. They arise on objections to evidence received,' the exclusion of evidence offered, and the instructions of the court,-and it is argued that the amount of the award is not sup7 ported by any competent evidence.
' Defendant is a Kansas corporation engaged in the business of manufacturing electric energy and transmitting the same over wires constructed f.or that-purpose; and having procured authority therefor in February, 1931, condemned a right of way 60 feet wide through and across plaintiff’s farm. The condemnation order authorized defendant to erect on this strip four steel towers, the bases being from 20 to 22 feet square, the height from 69 to 79 feet, con structed with galvanized steel, to which cross arms would be attached, from which transmission wires and conductors would be suspended at such a height as not to endanger the life or property of any person using the land under it for the passage of vehicles. It provided that defendant should have the exclusive easement upon only that part of the strip of land occupied by the steel towers, and should have the right to use this strip of land, with ingress and egress at the ends thereof, for the construction and maintenance of its towers, with cross arms and appurtenances attached, transmission 'lines and appliances, and have an easement above the ground over that part of the strip occupied by the transmission lines to transmit electric energy over the lines, and to clear all obstructions within the space so that the transmission lines would not be interrupted or interfered with. The plaintiff and his successors in interest at all times are entitled to use all the real estate, except that part covered by the towers, for all purposes which would not interfere with the construction, -maintenance and operation of the transmission system.
Appraisers were appointed, who assessed damages, from which an appeal was taken to the district court, where there was a trial before a jury as to the amount of the damages.
In answer to special questions the jury stated that they had allowed nothing (1) for depreciation of plaintiff’s land because of inconvenience in cultivating the same, (2) for unsightliness of the transmission line across his land, (3) for fear or possibility of growth of noxious weeds, (4) for fear or possibility of damage to machinery from running into ruts, (5) for fear or possibility of injury to crops, fences, or other property that will occur in the future, and in connection with the construction, maintenance and repair of the transmission line. Further answering special questions, the jury said they did allow damages not itemized in the previous questions, and on being asked “for what cause you allowed such damages,” answered, “Damages to entire farm.” The sum allowed was $2,810.
Plaintiff’s farm contained 204 acres. The strip condemned across it was somewhat diagonal with the government surveyed land and was'3,211 feet long. Its area is 4.48 acres. The area of the four foundations occupied by the towers is .03 of an acre. The only part of the strip of land condemned which the defendant, by the condemnation proceedings, acquired the exclusive use of, was that part occupied by the towers. It had the right to enter or leave the land at the ends of the strip for the purpose of constructing its towers, with their equipment, the right to transmit electric energy over the wires suspended from the towers, and to remove trees or other obstructions on the strip, the height of which might interfere with the transmission of the electric current. In all other respects plaintiff had the .right to use this strip of land. He could use it for pasture or ordinary farming purposes, as he had previously done. Even the braces on the towers were high enough that teams and ordinary farm implements could pass under them without difficulty.
Because of this taking of plaintiff’s property by defendant plaintiff was entitled to damages: First, for the full value of that part of the land the exclusive use of which was taken by defendant, being the area covered by the towers and their foundations. Second, damages because of the limitation placed upon his use of the property by the condemnation of the remainder of the strip, about 4.45 acres. Third, damages to his farm as a whole, if any, occasioned by the taking by defendant of the exclusive use .of a part of the land in the strip, and a partial use of the remainder.
To establish his damage plaintiff testified, in substance, that the value of the 60-foot strip of land through his farm was $250 per acre; that the market value of the whole farm prior to the condemnation was $225 per acre, and after the condemnation $210 per acre. He had had no experience with land upon which steel transmission power lines had been constructed, although he had had experience with land upon which electric light lines had been constructed. At the time of the hearing in district court the towers and their foundations were being constructed on his land. He was asked on what he based his testimony as to the damages to the entire farm. He answered that he based it on the fact that his farm was cut in two by the transmission line and having a public highway through the middle of his farm. “They have got a road through my wheat field now ten or twelve feet wide, and my alfalfa field is all tramped down.” He did not consider any of the strip of any value to him because defendant had a right to run over it whenever it pleased, and might do so in the future and destroy the crops and pack 'the soil so that it would not be good for farming. The strip goes through his hog pasture and sheep pasture. He took into consideration the fact that in the future defendant in going through his place along this strip might take the fences down, leave them down, and let the sheep dr other stock get out; or, if gates were there, they might be left open. Perhaps a prospective purchaser of the farm would object to the transmission line running through it. Defendant moved to strike out this evidence pertaining to the depreciation of the land as a whole because it is based upon elements of alleged damages which are too remote and speculative. In ruling upon the motion the court said:
“The value of a piece of land or property depends somewhat on the neighborhood that it is in and on the neighbors that a man has and whether or not they are neighbors that are disposed to respect his property rights or are not neighbors whom he could reasonably expect to respect his property rights. I think we may take those things into consideration, any person buying a piece of land, buying a home, the question of his neighbors; of course, there are other features to it — whether or not they are people that are naturally disposed to respect his property rights is something to be taken into consideration. Now the fact that he would have a remedy against them, we may say, doesn’t necessarily determine it. A man doesn’t want to start in to pursue a remedy against his neighbors for every trespass. I think that the evidence should stand.”
Another witness testified that the value of the farm was $10 an acre less after the construction of the transmission line than before, for the reason that the farm “is cut cater-cornered in two”; the 60-foot strip is worthless to plaintiff because defendant had a right for a road on any part or all of it through the farm, and it would not be worth while for plaintiff to try to use it for any purpose; if he put out a crop defendant might come in with half a dozen trucks to fix the line and ruin the crop; then, if plaintiff wanted to sell, he had a cloud on his title and couldn’t give a clear title, which he regarded as the greatest damage. . On motion to strike out this evidence as not being a proper basis for damage the court expressed the view that the cross-examination disclosed matters which went to the weight and credibility of the evidence, but as not being sufficient to exclude it.
Another witness thought the farm as a whole would be depreciated from $10 to $15 per acre. He farmed and handled stock, but had had no experience with land on which there was a steel electric transmission line. On being asked why the entire, farm would be so depreciated he testified that the tract condemned cuts plaintiff’s farm in two pieces and defendant has a right to go in there any time and leave the gates open, which would be a bad thing when one is handling stock; no one would give as much for the farm with this strips taken out diagonally across it belonging to defendant; his view was that the condemned strip belongs absolutely to defendant, which had the right to use that as it pleased; fellows might go through there fishing or trespassing. If defendant did not have absolute ownership of the strip, but simply the right to construct its towers and put up the lines and go in to inspect them as was necessary, that would make no difference with the witness’ view — he would prefer to have it fenced on each side. Defendant’s motion to strike out the testimony of this witness in regard to the depreciation of the right of way taken, and of the land not taken, for the reason that it was based on improper elements and too remote and speculative, was overruled.
Another witness estimated the farm as being worth $15 less per acre after the construction of the transmission line than before. His basis for that estimate was the inconvenience, loss of time, and destroying of crops by attempting to farm around and near the towers; that the land, which it would be impossible or difficult to farm near the towers, would be a breeding place and a harbor for noxious weeds, injurious insects and rodents. He also thought there would be damage to the entire farm because defendant’s men, in inspecting the line or maintaining it, might leave gates open or trample down fences, which would permit stock to get out, or horses to get cut or crippled on the wire; that trucks going through there to make repairs, if the ground were wet, would leave ruts, which would make it difficult to farm across and might break the machinery and cause a trip to the blacksmith shop. He also took into consideration the strip of land and thought it hardly worth while for one to undertake to farm it.
Another witness thought plaintiff’s land' outside of the strip was worth $14 per acre less after the construction of the line than before. He was in the real-estate business. He had had no experience in handling or selling lands upon which steel towers and transmission lines had been constructed. His idea was that anything in the way of an easement on land was detrimental to its sale. Because defendant had a right to use the strip to make a road through there stock might get out, and if sheep or cattle got on the alfalfa there might be loss. Trucks going through at a time when it was muddy might start a wash through the field, making a ditch, over which it would be difficult to farm. A motion to strike out the evidence of this witness for the reason his estimate was based on elements that were speculative and remote was overruled.
On behalf of defendant evidence was offered that the way the line would be constructed it would be unnecessary after it was com pleted to go in there often with trucks. It would be patrolled by a man on foot three times a year, and about the only damage-that could come to it would be the breaking of glass insulators. Defendant offered to show in detail how it planned to construct this line, with photographs of similar lines previously constructed. The court excluded this evidence on the ground that defendant was not required to construct the line in any particular way except as it complied with the rights which it obtained by condemnation. Other witnesses, who had had experience as owners or fanners of land upon which steel-tower electric transmission lines had been constructed, testified that while there was some inconvenience in farming about the towers, the land could be cultivated to within a few feet of the towers; teams and ordinary farm implements might pass under them, and that the damage to the farm as a whole, by reason of this inconvenience, was negligible and would not amount to more than $160.
Defendant requested an instruction, among others, as follows:
“In determining appellant’s damages, you can only consider elements which create a physical disturbance of a right of property; and you cannot consider as elements of damage the following detailed by the witnesses in this case: Opening fences to reach the transmission line; possible trespasses by the power company's employees resulting in damage to crops; unsightliness of the towers and transmission line; the assumption that the payment of taxes by the owner on the whole tract without abatement for the power company’s limited use of the strip will depreciate the value of the land; fear of possibility of trespass upon appellant’s property by others than the officers, agents or employees of the power company; fear that the power company employees might make ruts which would break the appellant’s machinery when he was working across said strip; fear that the power company employees might make ruts which would start the appellant’s field to wash; and fear that the appellant might lose a sale of said land because some purchaser would claim that the condemnation proceedings were a cloud on the title of appellant’s land.”
The court refused the instruction requested, and gave, among others, the following instructions:
“2. You are instructed that by said condemnation the defendant did not acquire title to the premises condemned, but acquired only an easement therein for the purposes heretofore mentioned, and upon abandonment of said premises for the purpose for which they were condemned, all rights therein would revert to the plaintiff.
“5. In determining the damages to the land not taken, you are instructed that you may consider the diminution of the market value thereof for any use for which it may reasonably be adapted, but such damages must be real and reasonably to be apprehended and such as the natural result from the use of said right of way for the purposes for which it was condemned. In other words, it is such depreciation in the fair market value thereof as might reasonably be expected to result from the taking of said right of way.
“6. You are instructed that in determining the damage, if any, which the plaintiff has sustained to his land not taken, you are not permitted to take into consideration trespass upon said land by the defendant or any other persons, nor to take into consideration the failure of the defendant company to do anything in the care and maintenance of said right of way which it was its duty to do.
“7. The damages which the plaintiff is entitled to recover in this action are, first, the fair market value of the strip of land taken by the defendant for right of way, less the fair market value, if any, of the rights remaining in the plaintiff in said strip, and, second, the damage, if any, to the land not taken which the plaintiff suffered by reason of the taking of said right of way. You are instructed that the measure of this damage is the difference between the fair market value of such land immediately before the taking of said right of way and its fair market value after the taking of such right of way. These values you are to determine from a preponderance of the evidence. And you are instructed that you should not allow the plaintiff any damage to the land taken or to the land not taken except that which you arrive at on the basis of fair market value as herein directed.”
In its first instruction the court stated in detail the extent of the easement condemned as the same was embodied in the order of condemnation, which was, in substance, that defendant had the exclusive use only of that portion of the land on which its towers were constructed; that it was required to place cross arms, transmission wires and conductors above the land at a height not to endanger the life or property of any person using the land in an ordinary manner; that it could use the strip of land, with ingress and egress at the ends thereof, for the construction of its line and for inspecting it and maintaining it after it was constructed, and that plaintiff had left to him the right to use all of the strip of land, except that covered by the towers and their foundations, for all purposes which do not interfere with the construction, maintenance and operation of the transmission system. The court also properly instructed the jury, in No. 2, that defendant did not acquire title to the premises condemned, but acquired only an easement thereon for the purposes mentioned, yet, in estimating damages to the farm as a whole, evidence was permitted to go to the jury, over defendant’s objection, predicated upon the view that defendant acquired absolutely the 60-foot strip; that it “cut the farm in two,” making two places out of it instead of one. Obviously this was erroneous.
With respect to the damages to plaintiff’s land not in the strip, the jury was told, in instruction No. 5, that the damages “must be real and reasonably to be apprehended and such as the natural result from the use of said right of way for the purposes for which it was condemned.” That is an accurate general statement. In instruction No. 6 the court told the jury that in determining that item “you are not permitted to take into consideration trespass upon said land by the defendant or any other persons, nor to take into consideration the failure of the defendant company to do anything in the care and maintenance of said right of way which it was its duty to do.” In view of the testimony which the court permitted to go to the jury, the limitations upon the matters which the jury should take into consideration should have been made much more specific. Substantially the instruction requested by defendant should have been given, although possibly it contained an item with respect to taxes not testified to by any witness and which, in view of that, should have been omitted. The court had permitted to go to the jury, with a comment which clearly indicated it deemed the evidence proper, testimony of supposed damages which might result in the future if defendant’s employees should break down fences or leave gates open, over which stock would stray or receive injury; or that in the future crops on the strip of land might be injured or damaged by defendant’s employees going in there to inspect or maintain the line; or that the land itself might be damaged by reason of cuts made by trucks from which ruts might form, or other damages result. These are not proper elements to be taken into consideration. In Love v. Empire Natural Gas Co., 119 Kan. 374, 239 Pac. 766, it was held:
“If an unreasonable use of the land is made in the inspection and maintenance of the pipe line after it is installed, the landowner will be entitled to recover the damages so occasioned.”
And in the opinion it was said:
“Plaintiff urges that in inspecting the line and making repairs his cattle will be frightened and land injured in hauling material for repairs over it. If the action of the company in entering his land for inspection and maintenance should damage fences, unreasonably cut the ground or injure cattle or crops, it would be liable to plaintiff for such injuries, and the one who suffers the injury can recover for the damages so occasioned.” (p. 379.)
It was error to admit this evidence as a basis for damages to the entire farm. In 20 C. J. 778 the rule is thus stated:
“In proceedings to condemn land, ... no damages are included except such as necessarily arise from a lawful talcing and a proper construction and operation of the improvement. Anticipated or past negligence in the construction of the improvement is not therefore an element of damage. . . .” (Citing many authorities.)
• Following this rule, it has been held in many cases that damages to crops, fences and to the land while constructing the improvements are not proper elements of damage in a condemnation proceeding, but should be recovered in a separate action for damages. On the other hand, and perhaps the better view is, that if the trial of the question of damages is had after the construction of the improvement (in this case erecting the towers and placing thereon the equipment, including the transmission wires), damages to fences, crops or land made in the progress of those improvements may be recovered, since they flow out of the condemnation, and to permit it to be done at that stage of the procedure avoids an extra action. (Penney v. Commonwealth, 173 Mass. 507, 53 N. E. 865; Watts v. Norfolk & W. R. Co., 39 W. Va. 196,19 S. E. 521.) The point is not specifically raised here and we mention it only because of the fact that the record discloses that at the time of the trial in the district court the transmission line was in process of construction, and perhaps by the time of a new trial, which it will be necessary to order in this case, it will have been completed; so any damages of this character resulting from the construction of the line itself may be taken into consideration.
The court permitted evidence to go to the jury, over defendant’s objection, to the effect that the price of the farm as a whole would be decreased because some prospective purchasers would object to any kind of an easement on land they purchased and object generally to the presence of the transmission line. From one of the witnesses, at least, this was based largely upon his view that the defendant had this entire strip of ground, with the right to enter it at any time in the future and cause damage to fences, crops and the land without being required to respond in damages therefor. As we have heretofore seen, this is a fallacious view and one which should not have been perniitted to go to the jury. Aside from that, the idea that some prospective purchaser might object to the presence of the transmission line, or the fact that an easement of any character was across the place, are too remote and speculative to form the basis of substantial damages. Now, more than formerly, transmission lines similar to this are' being constructed generally throughout the country, not only across lands, but along highways and through city streets and alleys, without any diminution of property values by reason of their proximity.
The only evidence in the record that would support any damages to the farm as a whole was that which related to the inconvenience of the farm operations by reason of the towers and the fact that it would take a little more time to work around them than if they were not there; the fact that there would be a waste in productiveness of the land for a small area about the towers, some injury or damage to crops by reason of the necessity of turning teams or implements near the towers, and the fact that the areas near the towers would be breeding or harboring places for noxious weeds, insects or rodents. But the jury, in answer to special questions, stated they allowed nothing for those things; hence there is no evidence in this record to sustain a judgment for plaintiff for damages to his farm outside of the strip taken by the condemnation proceedings.
In the seventh instruction the court placed the damages which plaintiff was entitled to recover in two classes: First, the fair market value of the strip of land taken, less the value, if any, of the rights remaining to the plaintiff in the strip; second, to the farm as a whole. While in a sense this .was accurate, it was rather a backhanded way of saying it. With less confusion, it seems to us, the court might have said that plaintiff was entitled, first, to full compensation for that part of the strip to which defendant acquired the exclusive easement by reason of the condemnation proceeding, being the part covered by the towers and their foundations; and, second, for damages to the remainder of the strip by the partial taking provided by the condemnation proceeding; and, third, for damages, if any, to the land not taken.
Defendant complains because the court excluded evidence of witnesses as to just how the line was to be constructed and maintained. This evidence should have been admitted. It was excluded upon the theory that defendant was bound by the order of condemnation. That order had not been admitted in evidence, and while the court gave the substance of it in its instructions, it would have been proper for the jury to have had the testimony. The evidence offered did not show the construction of a line at variance with the order, but in harmony with it, and with this evidence before them the jurors would have had a more complete picture of the use to which the order of condemnation permitted defendant to make of the property.
Appellant complains of the refusal to give instructions requested and of the instructions given. We have sufficiently commented on that.
The views here expressed are supported by several decisions of the supreme court of Illinois, of which the latest is Rockford Electric Co. v. Browman, 339 Ill. 212, 171 N. E. 189; also by Alabama Power Company v. Keystone Lime Company, 191 Ala. 58, 67 So. 833; Missouri Power & Light Co. v. Creed, 32 S. W. 2d 783 (Mo. App.); Coast Counties Gas & Electric Co. v. Miller & Lux, 5 Pac. 2d 34 (Cal. App.), and are in harmony with our own case of Yagel v. Kansas Gas & Electric Co., 131 Kan. 267, 291 Pac. 768, and cases there cited. We are aware some decisions are not in complete harmony with those above cited. We have examined some of those cases and are satisfied with the views here expressed.
It is clear that the verdict in this case was excessive, and that its excessiveness was due to improper evidence received, to the refusal of the court to permit defendants to show the actual manner of the construction and maintenance of the line, and to the instructions given. The result is, the judgment of the court below must be reversed and a new trial granted.
It is so ordered.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a workmen’s compensation case which has been here before (132 Kan. 663, 296 Pac. 373). At that time the trial court had determined that the mother of a deceased workman was wholly dependent upon him for support. In this court the employer contended the evidence did not sustain that finding. This court upheld that contention and reversed the case for further pro ceedings. Thereafter the trial court, considering the matter, found that the mother was partially dependent for support upon the deceased workman; that he had contributed $25 a month to her for her support for two years before his death; that his earnings for those two years were $1,643.66, and that the percentage of dependency under R. S. 1931 Supp. 44-510 could be determined by dividing 600 by $1,643.66. By so doing, and multiplying the result by $4,000, the court found the amount of compensation to be $1,460.15, for which sum an award was adjudged. The employer appeals and contends that the court erred in making this computation in using the figure $4,000, that the figure which should have been used was one which was three times the annual earnings of the deceased workman. This contention must be sustained. The statute (R. S. 1931 Supp. 44-511) outlines the rules for determining annual earnings used as the basis for compensation. Since the finding of the trial court as to the earnings of the workman for two years prior to his death is not questioned we need not give that section of the statute further consideration. R. S. 1931 Supp. 44-510 (2), relating to the amount of compensation where death results from the injury, so far as here pertinent, reads:
“(a) If a workman leaves any dependents wholly dependent upon his earnings, a sum equal to three times his average yearly earnings, computed as provided in section eleven of this act [R. S. 1931 Supp. 44-511], but not exceeding four thousand dollars ($4,000) and not less than fourteen hundred dollars ($1,400): . . . (b) If .a workman does not have any such dependents, but leaves dependents in part dependent on his earnings, such percentage of the sum provided in paragraph 2 (a) of this section as the average annual contributions which the deceased made to the support of such dependents during the two years preceding the injury bears to his average annual earnings during such two years. . . .”
The claimant in this case, not being wholly dependent, does not come within the provision (a) of this statute, but we quote it because provision (b) refers to it and the two together must be considered in determining the amount of claimant’s compensation.
Under these provisions of the statute, in any case where three times the annual earnings of the workman amount to as much as $1,400 and less than $4,000, a short formula for computing .the award to one partially dependent is to take three times the annual contribution of the workman to the support of the dependent for the two years prior to his death. For example, if the annual earnings of the workman, computed under section eleven of the act, are $1,000, and for the two years prior to his death he has contributed an average of $25 a month to the support of one partially dependent upon him, that is, $300 a year, to get the percentage of his contribution we would divide 300 by 1,000. To determine the amount of the award to such a partial dependent, that result would be multiplied by 3,000. In such a computation the multiplicand is always three times the divisor. Any sum divided by x and the result multiplied by 3x is equivalent to the sum multiplied by three. So in this case, when the court found that the average contribution of the deceased workman to his mother for the two years prior to his death was $25 per month, or $300 per year, the award should have been three times that sum, or $900. Appellee contends that appellant is not in position to urge that computation because of a stipulation it made before the compensation commissioner. The stipulation relied upon reads as follows:
“. . . that the earnings of the deceased workman were sufficient to entitle his dependents, if entitled to anything, to the maximum or such portion of the maximum as the beneficiary might be entitled to.”
Obviously the maximum referred to in this stipulation is the $4,000 mentioned in the statute above quoted. Appellee contends that this is a binding agreement on behalf of appellant, that the earnings of the deceased workman were sufficient that three times the amount of the annual earnings would be as much as $4,000. If the stipulation is to be so construed it must also be construed as an agreement that the annual earnings of the deceased workman were one-third of $4,000, or $1,333.33. If that were true the same result as to the amount of the award, $900, would be reached in this case.' In view of that stipulation there was no necessity of the compensation commissioner hearing evidence in this case on the amount of the workman’s earnings for the year, or two years, previous to his death. Evidence was taken on that question, and such earnings were found to be not $1,333.33, as stipulated, but $821.83. If that were used as the annual earnings of the workman, then three times that supi should have been used as the maximum of compensation instead of using the statutory maximum of $4,000. It is clearly inaccurate to use one basis for annual earnings of the deceased and another unrelated basis for the maximum compensation. The result is that the judgment of the court below must be reversed, with directions to adjudge the award to be $900.
Both parties complain here of the finding of the trial court that the amount of the contributions of the deceased workman to the sup port of his mother averaged $25 per month for the two years prior to his death, appellant contending that the amount is too large, appellee contending it is too small. While it is $5 per month more than the compensation commissioner found, it is within the range of the figures testified to by witnesses on that point and hence cannot be said not to be supported by competent, substantial evidence. The finding is therefore binding on this court.
The judgment of the court below is reversed, with directions to enter a judgment awarding the claimant $900. | [
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The opinion of the court was delivered by
....Parker,.C. J.:
The undisputable facts leading up to the institution of this appeal are essential to a proper understanding of the single, issue involved and should be stated.
. Following a full and complete trial, at which he was at all times represented by counsel, the appellant, Thomas J. Shores, was found guilty by a jury on two counts of second degree forgery. Thereafter, and on June 8, 1956, upon the overruling of his motion for a new trial, he was sentenced by the district court to confinement in the state penitentiary for the commission of the crimes charged in such counts for the period of time prescribed by law. Subsequently he was taken to the penitentiary where he is now confined.
Appellant made no attempt to appeal from the judgment and sentence imposed against him within six months from the date of his sentence, as required by our statute (G. S. 1949, 62-1724). In stead he waited until November 29, 1958. On that date, more than two years and five months after he had been sentenced and more than one year and eleven months after the date fixed by statute for the perfection of an appeal from the judgment and sentence, he filed a motion in the office of the clerk of the district court of Douglas County, alleging he was an indigent person and asking that the district court make an order directing that he be furnished with a complete transcript of the record of the trial in the case resulting in his judgment and sentence so that an appeal might be taken therefrom.
Upon consideration of the foregoing motion the district court, after pointing out the motion was filed by appellant for the purpose of enabling him to take an appeal, made findings of fact which, for all purposes here involved, may be said to be similar in substance to those heretofore related. It then found the appellant had taken no steps to appeal his conviction since the date he was sentenced and the time for such appeal had long since expired. Then, based upon such findings and conclusions, it denied the motion. Thereupon appellant perfected the instant appeal.
What has been heretofore related makes it apparent the sole question involved in this appeal is whether, under the existing facts and circumstances and controlling decisions, appellant’s rights were infringed upon by reason of having been denied a free transcript for the purpose of taking an appeal from a judgment and sentence from which he had made no attempt to appeal until long after expiration of the time fixed by statute (G. S. 1949, 62-1724) for the taking of appeals in criminal cases.
In approaching the foregoing question it may be conceded our code of criminal procedure (G. S. 1949, 62-1701) gives a defendant in a criminal action an appeal to this court as a matter of right from any judgment against him and, under the circumstances' set forth in G. S. 1957 Supp., 62-1304, free transcript to an indigent defendant for purposes of enabling him to prosecute the appeal. On the other hand it cannot be denied the same code (G. S. 1949, 62-1724) limits the time (now six months) in which to appeal from such judgments and it must be admitted that under established decisions, commencing with our first reported decisions (Carr v. The State of Kansas, 1 Kan. 331; The State of Kansas v. King, 1 Kan. 466; The State v. Ashmore, 19 Kan. 544) down to the present timé (State v. Sims, 184 Kan. 587, 337 P. 2d 704; State v. Shehi, 185 Kan. 551, 345 P. 2d 684 [this day decided]), this court has always construed the provisions of the last above mentioned section of the criminal code to be jurisdictional and limiting the right of appeal in criminal cases to the period of time therein prescribed. See, e. g., State v. Shehi, supra, where it is held:
“The Supreme Court has only such appellate jurisdiction as is conferred by statute pursuant to Art. 3, § 3, of the Constitution and when the record discloses lack of jurisdiction it is the duty of the supreme court to dismiss the appeal.
“The Supreme Court has no jurisdiction to entertain an appeal by a defendant in a criminal case, unless he first complies with G. S. 1949, 62-1724, by serving within the time prescribed a notice of appeal on the county attorney of the county in which he was tried, and filing the same showing proof of such service, with the clerk of the district court (following State v. Sims, 184 Kan. 587, 337 P. 2d 704).” (Syl. ¶¶ 1, 2.)
Having reviewed the facts and applicable decisions we are convinced the fair import of the trial court’s decision in overruling the motion for a complete transcript of the record is that, since he had made no attempt to appeal from the judgment and sentence in question within the time prescribed by 62-1724, appellant’s right to appeal therefrom was barred by operation of law hence, regardless whether he was indigent or had money to buy the transcript, he was not entitled to a free copy thereof for the purpose of taking an appeal from such judgment and sentence.
Notwithstanding, limited to the grounds of his motion and the scope of the trial court’s ruling with respect thereto, appellant, citing Griffin v. Illinois, 351 U. S. 12, 100 L. Ed. 891, 76 S. Ct. 585, in support of his position, contends that the action of the district court in denying him a free transcript, resulted in a violation of his constitutional rights under the equal protection clause of the Fourteenth Amendment to the Constitution of the United States. Without again analyzing Griffin v. Illinois, supra, or a more recent decision of the Supreme Court of the United States, Eskridge v. Washington State Board, 357 U. S. 214, 2 L. Ed. 2d 1269, 78 S. Ct. 1061, both of which cases were considered, discussed and applied by this court in Trinkle v. Hand, 184 Kan. 577, 337 P. 2d 665, it may be stated we find nothing in either case to warrant the strained construction appellant seeks to place upon the force and effect of the Griffin decision. The most that can be said for either of such decisions, which we recognized in Trinkle v. Hand, supra, is that destitute defendants must be afforded as adequate a review as defendants who can afford the expense of a transcript. Here— as we have seen — appellant was denied a transcript not’ because he was indigent, but because his right of appeal had not been exercised within the time prescribed by statute. We find nothing in either the Griffin or Eskridge cases, in other decisions or in the provisions of our own code of criminal procedure, to warrant or uphold appellant’s position the overruling of his motion for a free transcript for purposes of appeal, long after his right to appeal from his judgment and sentence had expired, was erroneous or resulted in any violation of his constitutional rights under the equal protection clause of the Fourteenth Amendment to the Constitution of the United States.
Therefore we hold that the trial court’s action in overruling the involved motion was proper and its order and judgment denying such motion must be affirmed.
It is so ordered. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover alleged usurious charges previously paid by Carl and Sarah Young, the plaintiff borrowers, to Cecil E. Barker, the defendant lender. Judgment was entered in favor of the defendant and the plaintiffs have appealed.
Plaintiffs’ petition sets forth two causes of action. The first cause of action alleged that on or about May 9, 1956, they executed and delivered to defendant a promissory note in writing in the amount of $17,145, payable in monthly installments of $571.50 on the 10th day of each month beginning on June 10,1956, until the full amount was paid; that the note called for 10 percent interest after maturity and that the note together with interest was paid in full by them on May 6, 1957. The note, a copy of which was attached to and made a part of the petition, contained an acceleration clause and gave plaintiffs the privilege of paying one or more installments on any payment date.
It was further alleged that at the time the note was executed, defendant represented he was charging interest at the rate of 8 percent per annum; that they relied upon such representation; that after payment in full was made, they discovered the total consideration received by them was only $11,906.86, leaving an excess of $5,238.14 more than the actual value received; that payments were made in accordance with the terms of the note for the months of June, 1956, to April, 1957, inclusive, and that the balance of $10,413.50 was paid on May 6, 1957, upon demand by defendant who gave them a discount of $445. Plaintiffs then alleged there was a total overpayment 'of $3,869-57, and that pursuant to the provisions of G. S. 1955 Supp., 16-203 and other existing statutes, they were entitled to recover double the amount of the excess even after the payment of such excess.
For their second cause of action, plaintiffs alleged that on or about October 27, 1956, they executed and delivered to defendant a promissory note in the amount of $1,957 with 10 percent interest per annum from date payable in six equal monthly installments of $100 commencing on November 10,1956, with a final installment of $1,357 due on May 10, 1957; that the note, a copy of which was attached to and made a part of the petition, further provided that if interest was not paid when due it was to be added to the principal and draw 10 percent interest; that the note was paid in full as provided therein; that the total consideration received by them upon the note was $1,657.03, leaving an excess of $299.97 more than the true value received; that considering the total consideration received of $1,657.03 and computing interest at 10 percent, the highest legal rate, and considering the payments made, of which defendant had a complete record, there was a total overpayment of $225.85 upon the note, and that pursuant to G. S. 1955 Supp., 16-203, and other existing statutes they were entitled to recover double the amount of the excess even after the payment of such excess. The prayer was for judgment against the defendant on the first cause of action in the sum of $7,739.14, and on the second cause of action in the sum of $451.70, and for costs.
Defendant filed a motion to make definite and certain by requiring plaintiffs to state: (1) the time when they discovered that the total consideration received for the first note was $11,906.86, and (2) the items which made up the consideration for such note. The same request was made with respect to the second cause of action. The motion was sustained and plaintiffs filed an amendment to their petition which alleged they first discovered the total consideration to be $11,908.86 at the time the note was signed and that they were unable to state what items made up the consideration. As to the second cause of action, plaintiffs stated that the consideration was that as alleged in the petition and they could not state what items made up that consideration.
Thereupon, defendant filed his answer admitting the residences of the parties and the execution, delivery and payment of the' notes, but denied all of the remaining allegations of the petition, as amended. He specifically denied that there was any overpayment of principal or interest, or that there was any interest charged upon the notes in' excess of that permitted by law, and alleged that the interest charged was lawful and not usurious.
The defendant further alleged that with respect to the first cause of action, during May, 1952, plaintiffs borrowed $100 from him on two occasions, and later that same year they borrowed the further sum of $1,500; that sometime later plaintiffs executed and delivered their note for $1,700 bearing interest at 10 percent per annum; that in the spring of 1956 plaintiffs advised him they owed á considerable number of obligations and requested his assistance; that plaintiffs and defendant entered into an oral agreement to the effect that he would loan them the money to liquidate their various obligations and that he would contact their creditors and pay their obligations for which he was to receive for such services the agreed sum of $2,300, and that plaintiffs, together with the parents of plaintiff Carl Young, would execute and deliver to him a note, the principal amount of which would equal the sum of all moneys used to pay plaintiffs’ obligations, the note for $1,700 plus $270 interest due thereon, the $2,300 which plaintiffs agreed to pay the defendant for his services, as well as a legal rate of interest.
Defendant further alleged that the terms of the oral agreement were fully performed by all parties and he paid plaintiffs’ obligations on or before May 9, 1956, totaling in die approximate amount of $11,000 and that after performing all services to be rendered by him there remained the sum of $9.74 for which he gave plaintiffs his check; that plaintiffs were cognizant of all such facts when they executed the note in question and were informed of the various items making up the amount of the note, and when they paid the note on May 6, 1957, defendant voluntarily discounted $445.
With respect to the second cause of action defendant alleged that in October, 1956, plaintiffs approached him and advised of their financial difficulty upon an obligation which had been assigned by a furniture company to the Central State Bank of Hutchinson, Kansas, and if the obligation was not paid their furniture would be repossessed; that plaintiffs desired to borrow money from him with which to pay off such obligation, and further, wished to employ defendant to contact the creditor to pay their obligation; that the parties orally agreed defendant would contact the creditor and would loan to the plaintiffs sufficient money to pay such obligation; that defendant contacted and paid plaintiffs’ creditor; that the amount of the obligation owed by plaintiffs was $1,657, and that they agreed to pay defendant $300 for his services; that the note was executed by plaintiffs in full payment of the money so ad vanced and to cover' the compensation due the defendant for services rendered to the plaintiffs; that plaintiffs were cognizant of all such facts when they executed the note in question and were well aware of the items making up the amount of such note.
Defendant further alleged that plaintiffs had full knowledge of all facts at the time páyment of the notes was made by them,' and that payment of each note was made voluntarily on the part of plaintiffs and each of them; that plaintiffs have no right in law to maintain the action and sue upon a purported cause of action, and that the laws of Kansas do not give plaintiffs any right to maintain the' action. The prayer was that plaintiffs take nothing by the purported causes of action.
Pláintiffs filed !a reply, denying all the allegations of the answer which were inconsistent with those of the petition as amended.
The defendant then filed a motion for judgment on the pleadings upon the ground they showed the facts alleged in plaintiffs’ petition and the amendment would not warrant a judgment being rendered against the defendant, and that under the facts as alleged no cause of action existed in favor of the plaintiffs and against the defendant. The trial court sustained the motion for judgment on the pleadings and entered judgment for the defendant, and plaintiffs perfected this appeal.
Ordinarily a motion for judgment on the pleadings invokes the judgment of the trial court on questions of law as applied to the pleaded and conceded facts. Thus,' if no material issues o'f fact are joined by the pleadings, then a question of law as to which party is entitled to judgment is presented for the determination of the court. Under such circumstances, the motion for judgment on the pleadings is equivalent to a' demurrer in that it 'admits the truth of all well-pleaded facfs in the pleadings of the opposing party and, in ruling- upon such a motion, the pleadings of the moving party are to be ignored. (Hirt v. Bucklin State Bank, 153 Kan. 194, 198, 109 P. 2d 171; Whitaker v. Douglas, 177 Kan. 154, 277 P. 2d 641; Dearborn Motors Credit Corporation v. Neel, 184 Kan. 437, 444, 337 P. 2d 992.) However, where issues of material fact upon which a valid judgment might be based are joined by the pleadings, a judgment on the pleadings is improper and this rule is not altered merely because the issue is offered or joined by a pleading defective in form. (Ewing v. Pioneer Nat'l Life Ins. Co., 158 Kan. 371, 374, 375, 147 P. 2d 755; Buechner v. Trude, 175 Kan. 572, 574, 266 P. 2d 267; Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 572, 313 P. 2d 731; Dearborn Motors Credit Corporation v. Neel, supra, p. 444.)
A review of the pleadings in the instant case reveals that issues of fact were joined by the pleadings. Plaintiffs alleged they had paid usurious interest on the two notes in question and in his answer defendant denied that such was the case. He also alleged in his answer that the payments on the notes were made voluntarily by plaintiffs, which they denied by way of reply. Thus, issues of fact as to whether defendant charged interest at a usurious rate and whether plaintiffs voluntarily paid the notes were presented. If those issues of fact are material and are such that a valid judgment might be based thereon, then the motion for judgment on the pleadings was improperly sustained by the trial court and judgment for the defendant must be reversed.
In determining this question we are met at the outset with defendant’s contention that the instant case is governed and controlled by the landmark case of Marshall v. Beeler, 104 Kan. 32, 178 Pac. 245, which held that the provisions of the statute regulating the legal rate of interest and providing penalties and forfeitures for taking or contracting for the payment of interest in excess of the statutory rate (Gen. Stat. 1915 §§5482, 5483 [G. S. 1955 Supp. 16-202, 16-203 at the time the notes in question were executed and delivered]) abrogated the borrower’s common law right to recover back usurious interest. The defendant argues that even if he concedes there was usurious interest included in each of the notes, plaintiffs cannot maintain this action; that their rights, if any, are governed by G. S. 1955 Supp. 16-202 and 16-203, which are defensive in nature, that is, by their refusal to pay on the instrument providing for the usurious interest or charges, and when sued thereon, to set up the usury as a defense and counter-claim to the action and recover double the amount of such usurious charges; that having passed up such right and having paid the principal and interest on the notes in question, plaintiffs- are barred by law from now bringing an action to recover the alleged excessive charges contained in those instruments. .Further, that plaintiffs have mistakenly construed G. S. 1955 Supp. 16-203 as the basis of their cause of action since that statute gives rise only to a cause of action to those borrowers who are forced to pay excessive charges to a bona fide holder of a negotiable instrument, in which event such a borrower may recover back in an action against the party originally exacting the usury, double the amount of the excessive interest or charges incorporated in the negotiable instrument.
We have no quarrel with the holding announced in Marshall v. Beeler, supra, and we give full recognition and adherence thereto, but, in view of reasons hereafter stated, that decision does not furnish a complete answer to the question presented in this appeal.
The statutes regulating the legal rate of interest and providing penalties and forfeitures for taking or contracting for the payment of interest in excess of the statutory rate in effect when the Marshall case was decided (Gen. Stat. 1915, §§5482, 5483 [G. S. 1949, 16-202, 16-203 and 16-205]) were enacted in 1889 (L. 1889, ch. 164, §§2 and 3) and remained unchanged from that time until 1955 when they were amended and incorporated into the Consumer Loan Act (L. 1955, ch. 135, §§1-29) as Sections 25, 26 and 27 (G. S. 1955 Supp. 16-202, 16-203 and 16-205). The Consumer Loan Act was a new enactment designed to legalize and regulate the business of making comparatively small “consumer type” installment loans and to fix the maximum amount of interest or charges in all cases for the loan or forbearance of money. G. S. 1955 Supp. 16-202 was amended at the regular 1957 session of the legislature, but in particulars not material to this decision.
As plaintiffs seek relief under G. S. 1955 Supp. 16-203 and “other existing statutes,” it becomes necessary that pertinent sections of the Consumer Loan Act be considered, and in so doing, they must be construed together since they are all a part of the same enactment. However, the provisions of the sections amended (G. S. 1955 Supp. 16-202, 16-203 and 16-205) so far as they are the same as those of the prior statutes, are required to be construed as a continuation of such provisions and not as a new enactment. (G. S. 1949, 77-201, First; Pinkston v. Rice Motor Co., 180 Kan. 295, 305, 303 P. 2d 197.)
Bearing in mind that the notes in question were executed in 1956, we turn now to applicable sections of the Consumer Loan Act (all reference to the act is directed to G. S. 1955 Supp. unless otherwise noted). Pertinent parts of Section 25 (16-202) read:
“Contract rate; installment loans of $2,000 or less; forfeitures; attorneys’ fees, (a) Contract rate. The parties to any bond, bill, promissory note or other instrument of writing for the payment or forbearance of money may stipulate therein for interest and charges receivable upon the amount of such bond, bill, note, or other instrument of writing, at a rate not to exceed ten percent (10%) per annum unless otherwise specifically authorized by law. (b) Installment loans of two thousand dollars ($2000) or less. Any person may loan to any borrower an amount of two thousand dollars ($2,000) or less for a period not exceeding thirty (SO) months and add to such loan or deduct therefrom in advance from the proceeds of such loan, interest or discount at a rate not exceeding eight percent (8%) per annum of the total amount of the loan from the date thereof until the maturity of the final installment, notwithstanding that the principal amount of such loan is required to be paid in installments. . . . The premium or other identifiable charge for insurance permitted to be written in connection with such loan may be collected from the borrower or included in the principal of the loan at the time the loan is made. Any person so contracting for a greater rate of interest or charges than authorized by law shall forfeit all interest and charges so contracted for in excess of the amount authorized by law; and in addition thereto shall forfeit a sum of money, to be deducted from the amount due for principal and lawful interest or charges, equal to the amount of interest or charges contracted for in excess of the amount authorized by law and such, amounts may be set up as a defense or counterclaim in any action to enforce the collection of such obligation and the borrower shall also recover a reasonable attorney’s fee. [G. S. 1949, § 16-202; L. 1955, ch. 135, § 25; July 1.]” (Emphasis supplied. )
In the main, 16-202 contains all the provisions of the prior statute and new provisions relating to (1) installment loans of $2,000 or less, (2) the purchase of insurance and payment of premiums in addition to interest or charges for the loan, (3) expressly provides the borrower a defense or counterclaim to recover usurious charges, and (4) the right to recover reasonable attorney’s fees.
As is observed, the remedy provided the borrower is that any in-, terest or charges contracted for in excess of the amount authorized by law (10 percent per annum) is declared forfeited and an equal amount deducted from the amount due for principal and lawful interest or charges, which may be set up as a defense or counterclaim in an action brought to enforce collection of the obligation. The effect of the italicized portion of 16-202 above quoted, added by the 1955 amendment, is to place into the statute the effect of this court’s holding in the Marshall case, and makes the borrower’s remedy in that respect one of defense and counterclaim where suit is brought to enforce the usurious obligation. Thus, it is clear that plaintiffs, having paid the notes in question, have no cause of action under 16-202 to recover back the alleged usurious interest or charges.
Plaintiffs allege that their cause of action is based upon 16-203 and “other existing statutes” to recover double the amount of the alleged excess. Section 26 (16-203) is substantially the same as the prior statute. The section reads:
“Usurious interest or charges; remedies. All payments of money or property made by way of usurious interest or charges, or of inducement to contract for more than the maximum amount authorized by law, whether made in advance or not, shall be deemed and taken to be payments made on account of the principal and the maximum amount of interest or charges authorized by law per annum, and the courts shall render judgment for no greater sum than the balance found due after deducting the payments of money or property made as aforesaid: Provided, That no bona fide endorsee of negotiable paper purchased before due shall be affected by any usury exacted by any former holder of such paper unless he shall have actual notice of the usury previous to his purchase. It is further provided that double the amount of such excess incorporated into negotiable paper may in such cases, after payment, be recovered back by action against the party originally exacting the usury, in any court of competent jurisdiction.”
It is clear that plaintiffs’ petition does not state a cause of action under 16-203. That section gives a cause of action to a borrower against the party originally exacting the usury to recover back from such party double the amount of such excess where the instrument has been negotiated to a bona fide endorsee without notice of the alleged usurious charges, and the borrower has paid the full amount of such charges to the endorsee. (Marshall v. Beeler, supra.) That is not the case here.
Sections of the Consumer Loan Act thus far examined do not give plaintiffs a cause of action to recover the charges alleged to be •usurious. We turn now to Sections 4 and 28 of the act (16-404 and 16-425) which are, however, of particular importance and are the “other existing statutes” as alleged in plaintiffs’ petition. Thereunder, plaintiffs contend, the note set forth in the second cause of action is void in its entirety and that they may recover the principal and all interest paid the defendant, notwithstanding they paid siich amounts in full. That part of 16-404 here pertinent reads: ,
“Loans of $2,100 or less; license required to engage in business when; exemptions from act; evasions; invalidity of certain loan contracts, (a) Scope; prohibiting engaging in the business of making loans of two thousand one hundred dollars {$2,100) or less, except after'having obtained a license; exemptions. . On and after August 1, 1955, no person shall engage in the business of making loans or advances of money on credit in amounts of two thousand one hundred dollars ($2,100) or less and contract for, charge, or receive directly or indirectly on or in connection with any such loan or advance, any charges whether for interest, compensation, consideration, or expense which in the aggregate are greater than the ■ interest or charges' otherwise permitted .by section 16-202 of the General Statutes of 1949, as amended, except as provided in and authorized by this act. . . .
“(b) Evasions. The provisions of subsection (a) shall apply to any person who seeks to evade its applications by any device, subterfuge or pretense whatsoever.
“(c) Invalidity; penalty. Any contract of loan in the making or collection of which any act shall have been done' which violates subsection (a) of this section shall be void and the lender shall have no right to collect, receive, or retain any principal, interest, or charges whatsoever.” (Emphasis supplied.)
We think it clear the legislature intended this section to mean that no person shall engage in the business of making loans in amounts of $2,100 or less, and contract for, charge, or receive, directly or indirectly, in connection with any such loan or advance, any charges whether for interest, compensation, consideration, or expense, which in the aggregate are greater than the rate allowed by 16-202, unless such person elects to become a licensee under the act (16-406,) in which case he may make loans or advances of money and contract for and receive interest or charges as provided in 16-410. Further, with respect to installment loans authorized by 16-202 (b), we think the legislative intent is clear that such loans are governed by 16-404 if made by a person “engaged in the business of making loans,” since such loans may be made in an amount of $2,000 or less for a period not exceeding 30 months with interest or charges added or deducted in advance, at a rate not exceeding 8 percent per annum of the total amount of the loan from date until maturity of the final installment. Thus, installment loans authorized under 16-202 (b) fall within the limitation1 of loans of $2,100 or less provided in 16-404, and interest or charges made in connection with such loans may not in the aggregate exceed the interest or charges otherwise permitted by 16-202 and 16-404. It would seem, therefore, that with respect to the second cause of action, subsection (c) of 16-404, by implication at least, if not by express terms, would give plaintiffs a cause of action whereby they might recover not only the usurious charges but the prinicpal of the note and lawful interest as well, if they alleged and proved that the defendant was “engaged in the business of making loans” and that the note referred to contained interest or charges in excess of that permitted by 16-202 (b) and 16-404. Since no such allegation was made, the conditions for the assertion of 16-404 to the installment loan referred to in the second cause of action are not present, and plaintiffs did not allege a cause of action under 16-404 (c).
Plaintiffs’ right to recover the usurious charges, i£ any, on both causes of action may be based upon other grounds to which we now refer. Section 16-425 (a) provides:
“Penalties, (a) Any person who shall contract for, or receive interest or charges on any bond, bill, promissory note or other instrument of writing, at a rate exceeding the maximum amount authorized by law shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not more than five hundred dollars ($500) or by imprisonment for not more than six (6) months, or both.” (Emphasis supplied.)
That provision was not in effect at the time the Marshall case was decided, and therein lies the difference between Marshall and the instant case. That section was incorporated as Section 28 of the Consumer Loan Act and became the law of this state for the first time in 1955. Its enactment was a step forward by the legislature to strengthen our laws against the selfish demands of money lenders and to provide for their prosecution and punishment for contracting for, or receiving usurious interest or charges in connection with the loan or forbearance of money. In interpreting what is now 16-202 and 16-203 this court in the Marshall case pointed out that those statutes recognized that parties to a usurious transaction “are not in pari delicto, because the statute was enacted for the protection of the debtor.” (p. 43.) It was also recognized in Marshall that where a statute in relation to usury declares usurious contracts void in whole or in part, or punishes a violation of its provisions by the infliction of fines or penalties upon the person talcing it, the debtor may recover back the usurious payments, (p. 39.) However, since statutes in effect at the time of Marshall did not impose criminal sanctions for the taking or receiving of usury, it was held the debtor could pay the excessive interest, refuse to plead usury as a defense, and the transaction was not void. In other words, prior to 1955 the exacting of usury was considered a mere contractual matter of concern to nobody but the parties themselves, except the right of the state to enjoin continuous usurious lending upon the ground that it was a public nuisance and injurious to the welfare of the people (State, ex rel., v. Miller, 177 Kan. 324, 279 P. 2d 223, 52 A. L. R. 2d 691). However, as between the parties, if a borrower wanted to contract for and pay interest in excess of 10 percent he could waive the usury law by not claiming its benefits, in which event the contract was not void, but was made voidable at the election of the debtor. He could voluntarily pay the usurious charges or he could compel the lender to commence an action to enforce the obligation, thereby giving him the election of pleading the statute, forfeiting the excess of 10 percent, and recover an amount equal thereto to be deducted from the principal and lawful interest. But, 16-425 (a) changed the policy of this state with respect to the usurious loaning of money and made it unlawful for any person to contract for, or receive interest or charges at a rate exceeding the maximum amount authorized by law, and upon conviction, provided for a fine or imprisonment, or both.
The question of usury appears to be purely one of fact (Lynn v. McCue, 94 Kan. 761, 147 Pac. 808; State, ex rel., v. Miller, supra), and, as previously indicated, plaintiffs alleged in both causes of action that the interest or charges in question were usurious and excessive. That, however, was denied by the defendant. If we consider those allegations to be true, which we are enjoined to do in ruling upon the motion for judgment on the pleadings upon appellate review (Hirt v. Bucklin State Bank, supra; Whitaker v. Douglas, supra; Dearborn Motors Credit Corporation v. Neel, supra), then the defendant contracted for and received interest or charges at a rate greater than is authorized by 16-202 (a) and (b) and therefore violated 16-425 (a) — a misdemeanor.
The primary purpose of the Consumer Loan Act is preventive rather than punitive, and should be construed so as to accomplish its remedial purpose. Accordingly, its provisions should be liberally construed in favor of the borrower and should not be more strictly construed as to the lender than its language and objectives demand. The tendency is to permit recovery where the statutes declare the contract void in whole or in part, or punishes a violation of its provisions by the infliction of a fine or penalties, upon the person who takes it. (Annotation 59 A. L. R. 2d 522.) While we recognize that decisions of this court are such that where a statute provides a violation thereof shall be a misdemeanor, a . contract made in direct violation of the same is illegal and there can be no recovery thereon although such statute does not in express terms prohibit the contract or make it void (Pinney v. Bank, 68 Kan. 223, 230, 231, 75 Pac. 119; Bourbon County Comm’rs v. Miller, 132 Kan. 52, 294 Pac. 863; National Bank v. White, 133 Kan. 490, 493, 1 P. 2d 257; Roddy v. Hill Packing Co., 156 Kan. 706, 715, 137 P. 2d 215), nevertheless the gist of the criminal offense defined by 16-425 (a) is the contracting for or receiving of interest or charges at a rate exceeding the maximum amount authorized hy law. Thus, it is only the excessive interest or charges which are made illegal, not the contract itself.
Under the circumstances here alleged, it would be unjust and unconscionable to permit the defendant to retain the usurious interest or charges contracted for and received, and the law imposes a duty to repay such unjust and unmerited enrichment and provides a remedy to the borrower by an action for money had and received, to recover the amount of such unlawful payments. It would be futile to say that conduct of the defendant which is unlawful and the road to prison on the criminal side of the court, is lawful on the civil side of the court and would preclude plaintiffs from recovering the fruits of the defendant’s crime. We import no such abortive intention to the legislature-
For the reasons stated above, it is our conclusion that a borrower who has paid excessive or usurious interest or charges to a lender upon a note- or other written instrument may recover back such excessive or usurious interest or charges from the lender, notwithstanding his previous voluntary payment. This conclusion in no way conflicts with Marshall v. Beeler, supra, but rather is to be considered as providing for a remedy in addition to the one therein prescribed. .
Material issues of fact were joined by the pleadings upon which a valid judgment might be based, and the learned trial judge erred in sustaining the motion for judgment upon the pleadings and entering judgment for the defendant. It follows that the order of the trial court should be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Price, J., concurs in the result. | [
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