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The opinion of the court was delivered by
Fatzer, J.:
This is an appeal from the judgment of the district court of Leavenworth county denying petitioner’s application for a writ of habeas corpus.
The facts may be stated briefly: In October, 1957, petitioner was charged by information in the district court of Harvey county with three counts of obtaining money by false pretenses. During "the course of the trial, counts two and three of the information were dismissed on motion by the State. The jury found petitioner guilty on count one. Pursuant to such conviction, he was sentenced under the Habitual Criminal Act (G. S. 1949, 21-107a) to a term of ten to thirty years in the Kansas State Penitentiary at Lansing, where he is presently confined. Petitioner was represented by court appointed counsel throughout the proceedings in the district court. Following his conviction, no appeal was taken from the judgment or the sentence imposed.
In his petition for the writ, petitioner alleged that he was unlawfully deprived of his liberty for the following reasons:
“All Case Records and Order of Committment and Judgement and Sentence imposed are in violation of Due Process of Law and is an invasion upon the rights of your Petitioner, and does violate the Fourteenth (14) Amendment and Article Ten (10) of the Constitution of the State of Kansas, all of which will be proven upon proper hearing.”
The answer and return of the respondent, the warden of the Kansas State Penitentiary, denied all the allegations of the petition not thereafter admitted and alleged that petitioner was lawfully restrained of his liberty pursuant to his conviction in the district court of Harvey county, and that the sentence as adjudged by that court had not expired nor had it been commuted by the governor. Duly certified copies of the journal entry of judgment, information and commitment order were attached to the answer and made a part thereof.
On December 12, 1958, trial was had in the district court of Leavenworth county upon the issues joined. Petitioner was present in person. His petition was denied and he was remanded to the custody of the respondent, following which he duly perfected this appeal.
Petitioner appears to rely upon five grounds for his release from custody. We shall take them up in the order presented.
The first is that he was taken into custody in Fort Smith, Arkansas, on a warrant which charged him with the crime of forgery rather than the crime of obtaining property by false pretenses, the offense for which he was convicted after being returned to Kansas. The point is not well taken. The record shows that petitioner was in fact arrested in Arkansas and returned to Kansas to stand trial but it does not disclose any evidence to support the other allegations. For all that appears in the record, petitioner voluntarily returned to Kansas with the arresting officer. He cannot now be heard to complain that he was arrested in that state on a charge different from the one for which he was prosecuted in this state. It is the well established rule that the jurisdiction of a district court of this state to try a person on a charge of having committed a public offense does not depend upon how he came to be in the state (Stebens v. Hand, 182 Kan. 304, 306, 320 P. 2d 790; Carrier v. Hand, 183 Kan. 350, 351, 327 P. 2d 895). See, also, Pettibone v. Nichols, 203 U. S. 192, 51 L. Ed. 148, 27 S. Ct. 111 and Lascelles v. Georgia, 148 U. S. 537, 37 L. Ed. 549, 13 S. Ct. 687.
The next ground relied upon is that he was held in the Harvey county jail for five days before he was brought before a magistrate for arraignment. The trouble here is that the allegation is not supported or corroborated by any competent evidence and this court is committed to the rule that the unsupported and uncorroborated statements of the petitioner in. a habeas corpus proceeding do not sustain the burden of proof or justify the granting of a writ where, as here, the judgment rendered is regular on its face and entitled to a presumption of regularity and validity (Cunningham v. Hoffman, 179 Kan. 609, 611, 296 P. 2d 1081, and cases therein cited).
Assuming, arguendo, that the allegation is true, it still would not afford grounds for a writ of habeas corpus. An analogous situation was presented in Rutledge v. Hudspeth, 169 Kan. 243, 218 P. 2d 241, where the petitioner was held in jail for five days before a warrant was read to him. It was said:
“. . . A petition for a writ of habeas corpus by one being under a sentence after a plea of guilty is a collateral attack upon that judgment. In order for such an attack to be successful it must be made to appear that the judgment is void. Such a judgment carries with it a presumption of validity. (See Miller v. Hudspeth, supra.) We considered an argument analogous to this in Wears v. Hudspeth, 167 Kan. 191, 205 P. 2d 1118. There a petitioner, who was held as a parole violator, asked for a writ and argued amongst other things that he was entitled to a writ because he was held prior to his delivery to the authorities at the penitentiary at a jail other than the one designated by the trial court. We said:
“ ‘Obviously this claim is wholly devoid of merit. Its short and simple answer is that such incarceration, which we pause to note is denied by respondent and merely supported by petitioner’s uncorroborated statement, has long .since ended and its legality is not now subject to consideration in a habeas corpus proceeding.’
“What would have been our action if we had been asked for a writ while petitioner was being held without a warrant we need not say. Without conceding there was anything unlawful about the five days’ incarceration without a warrant it may safely be said that such illegality does not render void the subsequent judgment of the trial court.” (1. c. 244, 245.) (Emphasis supplied.)
See, also; Scott v. Hudspeth, 171 Kan. 320, 232 P. 2d 464.
Petitioner also makes the unsupported contention that he was denied counsel during the alleged' delay in arraignment. There is nothing in the law of this state guaranteeing counsel at that stage of the proceedings. Nor does such a situation constitute a violation of due process under the federal constitution (Cicenia v. LaGay, 357 U. S. 504, 2 L. Ed. 2d 1523, 78 S. Ct. 1297).
It should perhaps be noted in passing that Mallory v. United States, 354 U. S. 449, 1 L. Ed. 2d 1479, 77 S. Ct. 1356, cited and relied upon by petitioner, dealt with the interpretation of the federal rules of criminal procedure and held that a confession extracted during an unnecessary delay in arraignment was not properly admitted into evidence at the trial of a 19-year-old boy of limited in telligence. We do not question the soundness of that decision, but federal rules of criminal procedure are not applicable to state criminal proceedings. Furthermore, there is no confession involved in the instant case.
Petitioner’s third ground is that he was prejudiced and deprived of a fair .trial because his court appointed attorney was inexperienced. At the outset, it may be noted that such a complaint is not uncommon among persons who have been convicted of crime, for as was said by this court, “No thief e’er felt the halter draw, with good opinion of the law.” (Trugillo v. Edmondson, 176 Kan. 195, 203, 270 P. 2d 219.) There is no constitutional nor statutory guaranty for the assistance of the most brilliant counsel (United States v. Thompson, 56 F. Supp. 683, 688; Miller v. Hudspeth, 164 Kan. 688, 707, 192 P. 2d 147).
In the event that counsel is so incompetent or dishonest or so improperly conducted defendant’s case as to amount to practically no representation, then a court should grant relief by use of a writ of habeas corpus (Thompsett v. State of Ohio, 146 F. 2d 95, 98; Miller v. Hudspeth, supra, p. 708), but that is not the situation here. It appears that the court appointed counsel was experienced and had practiced law for a period of approximately two and one-half years, including military duty. This practice included defending persons accused of crime. Under such circumstances, it cannot be said that petitioner’s representation was so deficient or unfair as to justify his release by writ of habeas corpus.
Petitioner’s fourth ground is that the evidence was insufficient to convict him of the crime with which he was charged. Even if such were the case, it may not be raised or questioned by habeas corpus proceedings. Such proceedings are not a substitute for a review of trial errors by appeal and do not serve the function of a motion for a new trial. The remedy for correction of trial errors committed in the'course of a prosecution for crime is not by habeas corpus, but, rather, by a motion for a new trial, and if denied, by appeal to the supreme court (Lee v. Prather, 146 Kan. 513, 71 P. 2d 868; Strong v. Edmondson, 177 Kan. 247, 248, 277 P. 2d 585; Cunningham v. Hoffman, supra, p. 611).
The last ground relied upon by the petitioner is that the journal entry of judgment in his conviction proceedings was defective in that it did not set out the statutory citation of the offense of which he was convicted and sentenced as required by G. S. 1949, 62-1516. Respondent admits the alleged defect in the journal entry but denies that it is a ground for release by writ of habeas corpus. We agree with the respondent. Petitioner has not served his sentence and therefore is not entitled to his release. The sentence was not void — the journal entry was merely incomplete and subject to correction (Browning v. Hand, 184 Kan. 365, 366, 336 P. 2d 409, and cases therein cited). Furthermore, the journal entry has been corrected, as evidenced by a certified copy of an order of the district court of Harvey county dated April 23, 1959, and filed with this court.
Petitioner has shown no ground for his release and the judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Price, J:
This was a proceeding in habeas corpus to determine • the care and custody of Kenneth Roy Weeks, a minor child.
Kenneth was born on February 2, 1955. His parents were Leonard and Mary Margaret Weeks. Leonard died on August 2, 1955, while serving with the armed forces in Korea.
At this point the identity and relationship of the various parties to this action should be stated.
Oral C. Weeks is the father of Leonard, being the paternal grandfather of Kenneth.
Wauneta Borkert is the sister of Oral C. Weeks, being the great-aunt of Kenneth.
Margaret Main is the mother of Mary Margaret Weeks, being the maternal grandmother of Kenneth.
Ilene Bolinder is the half sister of Leonard, being the paternal aunt of Kenneth.
After Leonard’s death Mary Margaret and Kenneth lived in the home of her mother, Margaret Main, in Herington. In November, 1955, she and Kenneth moved to an apartment of their own in the same city. Her conduct and neglect of Kenneth were such as to bring about an investigation by the authorities. The grandmother, Margaret Main, thereupon took charge of the child and removed blm to her home. He remained there until about Christmas, at which time, due to a business transfer of Margaret Main’s second husband, he was placed in the care of Wauneta Borkert, his great-aunt, in Council Grove.
On December 29, 1955, Oral C. Weeks filed a petition in the probate court of Morris county alleging that Mary Margaret had abandoned Kenneth, and requesting that he and his second wife be appointed as guardians of the child. At the hearing thereon Oral C. Weeks was found to be a proper person to be appointed guardian of the person and estate of Kenneth, and it was ordered that letters of guardianship be issued to him upon his taking the oath and giving bond in the amount of $1,000. For some reason or other, not clearly shown by the record, Oral C. Weeks did not qualify as guardian and letters of guardianship were not issued to him.
At or about this time Oral C. Weeks removed Kenneth from the Borkert home and took him into his own home where he remained for about sixty days until he was returned to the Borkert home by the sheriff. The basis of this action is not clearly shown.
On October 4,1956, llene Bolinder, the paternal aunt of Kenneth, joined by her husband, John, commenced this action in the district court of Morris county, the respondents being Wauneta Borkert and her husband, Elvin, and Oral C. Weeks and his second wife, Catherine. Their petition set out some of the facts of the “shifting and scrambled” custody of Kenneth, as heretofore briefly related, and alleged that the mother, Mary Margaret, had abandoned him. The grandmother, Margaret Main, and her second husband, were later made parties respondent.
On October 15j 1956, eleven days after this action was filed, the probate court of Morris county made an order appointing one Floyd Smith, not related to any of the parties, as guardian of the person and estate of Kenneth. This “order” was made without petition or notice to anyone and without vacating the former order appointing Oral C. Weeks.
After a number of hearings in this case at which all parties were present in court in person and by counsel, and after hearing the testimony of numerous witnesses, the trial court found that the welfare of Kenneth would best be promoted by giving his care and custody to the petitioners Bolinder, who reside on and operate a large farm a short distance from Alta Vista in Wabaunsee county. In rendering judgment the court made thirty-two findings of fact setting out in minute detail the facts and circumstances in connection with all contending parties.
The respondents Borkert have appealed and assign four specifications of error. Each will be discussed briefly.
The first is that the court erred in holding that it had jurisdiction, and with respect to this the Borkerts contend that as the probate court assumed jurisdiction of the child in the guardianship proceeding filed by Oral C. Weeks that court continued to retain jurisdiction of the child to the exclusion of the district court.
There are at least two good reasons why this contention cannot be sustained. In the first place, no letters of guardianship were issued to Oral C. Weeks, petitioner in that proceeding, or to anyone else. The subsequent ex parte action of the probate court in “appointing” Floyd Smith was of no consequence insofar as this habeas corpus action was concerned. Secondly, assuming that prior valid guardianship proceedings had been had in the probate court, in Johnson v. Best, 156 Kan. 668, 135 P. 2d 896, it was held:
“A proceeding in habeas corpus, instituted by a mother to recover custody of her minor child from one having been appointed guardian thereof, is not an action to remove a guardian, within contemplation of the provisions of the probate code, but is a proceeding, authorized by the civil code, to test the legality of the restraint of the child’s liberty, over which proceeding a district court has jurisdiction.” (Syl. 3.)
and said
“The code of civil procedure provides the right to test the legality of restraints and we know of no provision in the new probate code which was intended to disturb that particular provision of the civil code by limiting its exercise solely and exclusively to probate courts.” (p. 672.)
See also Loucka v. State Department of Social Welfare, 163 Kan. 1, 179 P. 2d 791.
In connection with this specification, complaint also is made of the fact no “service” was had on the minor and that no guardian ad litem was appointed for him. While it would have been entirely proper for the court to have appointed a guardian ad litem — its failure to do so, under the facts and circumstances, was not erroneous. The child was in court, together with all parties to the action, except the mother, whose whereabouts were unknown and upon whom publication service was had. Heilman v. Heilman, 181 Kan. 467, 812 P. 2d 622, although not a habeas corpus proceeding, was a custody action. In the course of the opinion it was said:
“We first discuss the failure of the trial court to appoint a guardian ad litem to represent the minor child at the custody hearing. The only authorities relied upon in support of the grandmother’s contention are our statute, G. S. 1949, 60-408, an excerpt from 27 Am. Jur., Infants, § 140, p. 859, and the case of Pierson v. Brenneman, 171 Kan. 11, 229 P. 2d 1019, none of which is in point or has any bearing on the matter. The mentioned statute and the case clearly apply only to questions relating to service of process on minors as litigants, and the same is true of the textbook citation.
“Here the minor child, although being the ‘subject’ of the litigation, was not a party litigant. He was present in court, as were his mother and grandmother to whom a divided custody order previously had been granted. Perhaps in a given case, and under peculiar and unusual circumstances, it would be proper to appoint a guardian ad litem to represent a minor child at a custody hearing, but there is nothing in the case before us to indicate the court erred in not following such procedure. The grandmother’s contention as to this matter is entirely lacking in merit and cannot be sustained.” (pp. 470, 471.)
The fourth specification of error is that the court erred in permitting the amendment of the records and changing the order of the court after the term had expired.
As heretofore stated, service by publication was had on the child’s mother. It was regular in every respect and in conformity with the statute. The publisher of the newspaper filed the proof of publication and swore to it before the clerk of the district court (G. S. 1949, 60-2528). That official, however, at the time, neglected to place her name and seal upon the document. It appears the court quite properly refused to sign the journal entry of judgment awarding custody until the clerk completed the jurat, which was done at a subsequent term. Assuming the Borkerts are in position to raise the question, no error can be predicated on this procedure. Valid publication service was had, no one was prejudiced by the “irregularity” on the part of the clerk, and this contention is completely lacking in merit.
The second and third specifications of error are that the court erred in overruling the demurrer to petitioners’ evidence and in overruling the motion for a new trial.
In connection with the first-mentioned ruling, it is contended petitioners’ evidence failed to establish anything reflecting adversely on the Borkerts — therefore nothing was shown to justify a change of custody. Concerning the denial of the motion for a new trial, the Borkerts again urge matters covered by the other specifications of error.
It has been held that the use of habeas corpus has been broadened to include an inquiry as to the custody of minor children by a court having equity jurisdiction where two or more parties, or groups of parties, contend for such custody; that in such use of habeas corpus the legal rights of the contending parties are of no consequence or, at most, are of but little consequence; that the primary and controlling question in such a case always is the present and future welfare of the child; that legal questions presented are considered only as they bear, if at all, upon the question of what disposition of the child is for the child’s best interest, and that this is to be determined by the court upon all of the facts and circumstances disclosed by the evidence. (Paronto v. Armstrong, 161 Kan. 720, 724, 171 P. 2d 299.)
And that is precisely what confronted the trial court in this case. It is conceded by all parties that the child had been abandoned by its mother, and the court had before it the claims of the various relatives, all of whom apparently were sincere in their interest in the child. It would serve no useful purpose to detail the evidence concerning the ages of the contending parties, their homes, station in life, their economic status, or numerous other matters — all of which were considered by the court in arriving at a decision as to what appeared to be for the child’s best interest and welfare, present and future. We have studied the record and are convinced the trial court’s decision was reached only after a most painstaking and conscientious consideration of all of the many factors involved. The findings are supported by the evidence and nothing has been shown to justify this court’s interference with the judgment rendered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Parker, C.
J.:
This was an action by the duly appointed statutory (G. S. 1949, 59-705 and 59-2232) representative of the estate of a deceased intestate to recover damages under the wrongful death statute. Plaintiff recovered and the defendant appeals.
The facts giving rise to the accident are not in dispute and can be stated thus:
On May 24, 1955, James R. Thomas, who with his wife and four minor children resided on a farm three and one-half miles north of Oskaloosa on Highway 59, purchased a television set from Lee M. Fraker of Winchester, who was engaged in the business of television sales and service.
On the same date Fraker went to the Thomas home for the purpose of installing the television set and erecting the television mast and antenna. He contacted Thomas and proceeded to assemble the television mast which, when assembled, was a twenty-five foot rod, one end being referred to as the base and the other end as the top. After assembling the mast Fraker accompanied by Thomas went around to the north side of the farm house. He placed the base end of the mast against the foundation of the house at the point where such mast was to be erected and then put the mast on the ground so that it was perpendicular with the foundation of the house and extended north of the building twenty-five feet.
At the time in question a 7,200 volt transmission high line of the defendant extended from a pole located on the east side of Highway 59 in front of plaintiff’s farm yard and across such highway to the west and then across the farm yard for a span of two hundred sixty-six feet to a high line transformer pole located to the west and north of the back of the house. The high line ran twenty feet north of the house at the place where the television mast was lying upon the ground so that the mast was directly under defendant’s transmission line, the top portion thereof extending five feet north of such line. Fraker, with Thomas present, then lifted the mast without accident to a point where it was perpendicular with the house, thus determining that it could be installed without coming in contact with the high line. Fraker, who subsequently testified without refutation that such action did not lengthen the mast, then placed the antenna upon the mast. After doing so he took the mast and the antenna and placed it in the same position the mast had been in when he first tested for clearance.
Thereupon Fraker and Thomas, with the Thomas children assisting, proceeded to attempt to place the mast and antenna in its proper position. In doing so Thomas took his position at the top or north end of the mast and antenna. Fraker took a position nearer the middle of the mast and the children at the base thereof so that they could help in placing the base end in a hole which had been dug for that purpose.
Having placed themselves as just indicated, Fraker and Thomas lifted the mast and antenna from its horizontal position and proceeded to push it upward in an arc perpendicular to the house for the purpose of placing such mast and antenna in its proper position. It is conceded that while engaged in this operation Thomas was killed as a result of coming into contact with electricity.
Following the death of her husband the plaintiff, Agatha Thomas, was appointed as the statutory representative of his estate. Thereafter she brought this action by filing a petition which is not included in this record. Subsequently she filed an amended petition wherein she alleged facts similar to those heretofore stated; asserted that the antenna either came in contact with or came near the high voltage wire or wires owned and maintained by the defendant; stated that as a result of such contact her husband received a violent shock and died as a result thereof; charged, among other acts of negligence not presently involved, that defendant wrongfully, unlawfully and negligently at the time mentioned and prior thereto, failed to provide for the clearance of its high voltage wire or wires above the ground in accordance with the provisions of “Wire Stringing Rules” of the Kansas Corporation Commission; averred that said acts, without fault or negligence on his part, were the proximate cause of her husband’s death; and prayed for the recovery of damages alleged to have been sustained by herself and her children as a result of his wrongful death.
Upon the overruling of its demurrer to the amended petition defendant filed an answer. In that pleading it admitted it was engaged, among other things, in the business of furnishing electricity; averred that if the plaintiff, in fact, had sustained damages as alleged in her amended petition, the same were due to no fault, blame or negligence on the part of it, its agents, servants or employees but were due to the negligent acts of plaintiff’s decedent or others than defendant, its agents, servants or employees; and prayed that plaintiff take nothing by reason of her amended petition.
With issues joined as just related the cause came on for trial by a jury. Prior to or during the trial the parties stipulated, subject to a reservation that the stipulations went to the matter of measurements after the accident occurred (1) that the defendant’s transmission lines extending from the highway to the transformer pole back of the house carried a voltage of 7,200; (2) that the decedent was killed as a result of coming in contact with electricity; (3) that the span between the defendant’s high line pole to the transformer pole back of the house was two hundred sixty-six feet; (4) that the lines at the scene of the accident, the house, the transformer and the poles were substantially the same at the time of the trial as they were at the time of the accident; and (5) that since the date of the accident defendant’s wires had not been changed. Moreover, although not expressly stipulated, it is to be noted that during the progress and trial of the case defendant admitted that after the accident at least one of the two wires of the transmission lines leading to its high line transformer pole was four inches lower than required by the rules of the Corporation Commission. This, it may be added, was a conclusive admission for purposes of the trial and must be considered as binding on the defendant (In re Estate of Carrell, 183 Kan. 491, 496, 327 P. 2d 883).
There is some controversy between the parties regarding how high the wires, leading from the pole on the east side of Highway 59 across plaintiff’s farm yard to the high line transformer pole near the house, should have been at the time of the accident. If defendant introduced any evidence on this subject, as some arguments advanced by its counsel tend to imply, it was not included in its abstract or in the plaintiff’s counter-abstract and is not before us.
The principal evidence adduced by plaintiff on the subject just mentioned, as well as other technical matters which throw much light on the existing factual picture, came from the lips of David E. Shad, a consultant engineer, whose qualifications as an expert are not challenged. Mr. Shad was first shown plaintiff’s Exhibits 3 and 4, consisting of page 17 of the Corporation Commission’s Rules regarding installation of wires effective on May 24, 1955. These rules were then introduced in evidence.
For reasons indicated the testimony of this witness, as abstracted by the defendant, will be lifted and quoted verbatim from its abstract which reads:
“He testified that referring to the regulations a high wire which extends a distance of 266' between poles should be 21.16' from the ground; that the over-all length of the mast with the antenna attached would be approximately 26'. He computed there would be a 3' clearance between a line and the antenna, assuming that the line was 21.16' above the ground starting with the antenna on the ground so that the base end of said antenna was 20' South of said line. That electricity is generally distributed to a house by two wires from the highline to the transformer and two or three wires from the transformer to the house. The bottom wire on the particular system that he observed out there is commonly known as a neutral conductor; that both wires have voltage in them that change depending upon the load . . . depending upon whether or not there is a limb across the wire; and depending on the resistance of the ground.”
Direct-Examination:
“Q. Now I want to ask you another question. Assuming that the wire was ninteen feet high and assuming that you laid this television mast and antenna on the ground, and assuming that you measured a distance twenty feet north and lifted this mast and antenna and travelled, moved it in an arc from the ground to the south, would you have an opinion whether or not that antenna and mast would come in contact with that wire which was nineteen feet from the ground. Answer me yes or no.
“A. May I look at that sketch?
“Mr. Russell: Now, if Your Honor please, we object as repetitious. He has already told him.
“Mr. Doherty: That is not the same measurement. The other measurement was twenty-one feet and sixteen hundredths.
“A. No.
“Q. By no, you mean it would not come in contact?
“A. Yes.
“Q. Now, from your study of those rules and regulations, and your experience as a consulting electrical engineer, would you have an opinion as to which of the wires the height definition of the Corporation Commission referred to, the high wire or the lower wire? Answer me yes or no whether you have an opinion.
“A. Yes.
“Q. In your opinion which wire would it apply to?
“A. According to my interpretation of these rules, my opinion would be that both wires were required to have the clearance in this.
“Q. All right. Will you explain to the Court and jury how you arrived at that conclusion?
“A. Well, the Corporation rules introduce certain definitions and their definition states that voltage, in this commission order, means the highest effective voltage between any two conductors of the circuit concerned, except that in the grounded circuit and it has some exceptions but the exceptions do not apply to the case involved here. And that definition of the voltage between the two wires would fall in the seven hundred fifty to fifteen thousand volt class, and on that basis then, when they speak of voltage and labelled requiring clearance, they are talking about both wires associated together to that particular circuit.
“Q. Is that, in your opinion, because oftentimes a low wire becomes hot through accidents?
“A. Yes, sir. The purpose of tire clearance rules is to provide clearance for traffic and safety of personnel and everything else, and the bottom wire of the system it’s quite possible is hot and it would be a point — there has been a lot of discussion and some change in mind since these rules were written, but at the time of my interpretation of these rules it would require both wires of that to be.”
Cross-Examination:
“Q. Is it your testimony, on direct examination in this lawsuit, that the ground wire carries the same voltage as the high wire?
“A. I don’t believe I made any statement to that effect, No.
“Q. What is the difference?
“A. You say what is the difference? The difference is the difference in voltage. It may or may not be the same voltage as the top wire.
“Q. The ground wire may have practically no voltage in it, is that correct, and usually does not, is that right?
“A. Normally is would be expected to have little voltage.”
Re-Direct-Examination:
“Q. One question. Mr. Russell asked if normally you would expect to find very little voltage in a low wire and I believe you said that was correct, is that right?
“A. Yes.
“Q. Well, then, if you would expect normally to find very little voltage in a low wire and some man came in contact and was electrocuted, you would think there was something wrong with the system, wouldn’t you?
“A. I would think that the system was not normal, we’ll say.”
In passing it is to be noted Frank Edwards, acting county engineer of Jefferson County, another of plaintiff’s witnesses testified that, according to his measurements, at a point where it looked like they attempted to erect the television antenna directly north of the house the height of the lowest wire of defendant’s transmission line was sixteen feet.
When, at the close of all the evidence, the case was submitted to the jury it returned a general verdict in favor of the plaintiff along with its answers to submitted special questions which read:
“1. Do you find that deceased, James Thomas, was careless or negligent while assisting in raising the mast with attached antenna? No.
“(a) If your answer to question number one above is yes, state what deceased’s negligence or carelessness was.
“(b) If your answer to question number one above is yes, did deceased’s negligence or carelessness cause or contribute to his death?
“2. Do you find that defendant was guilty of negligence which was the sole and proximate cause of deceased’s death? Yes.
“(a) If your answer to question number two above is yes, state what defendant’s negligence was. Failure to install and maintain lines according to State Corporation Commission specifications.
“3. Do you find that the mast or antenna came in contact with defendant’s 7,200-volt high line? No.
“(a) If your answer to question number 3 is yes, then state the point of contact between defendant’s high fine and the mast or antenna.”
Having set forth, as briefly as the state of the record permits, the facts required to give readers of this opinion a proper understanding of what this case is about, we now turn to the issues.
Since we have decided the case must be returned to the court below for a new trial, where issues now raised may depend on different evidentiary facts and circumstances, we believe it would serve no useful purpose to here detail or labor questions advanced by defendant, raised at different stages of the proceeding, to the effect the record discloses no evidence whatsoever on which to base its liability for negligence. It suffices to say that after an extended review of the entire record; a careful consideration of all the evidence, including the stipulations and admissions to which we have referred, as well as other evidence not included in the foregoing factual recitation; and a study of decisions cited by the parties in support of their respective positions, we have concluded that in the face of the record presented it can neither be said nor held, as defendant contends, that the failure of any evidence of negligence on the part of the defendant establishes as a matter of law that (1) the demurrer to the plaintiff’s evidence; (2) the demurrer to all of the evidence; (3) the motion for a directed verdict; (4) tire motion for judgment notwithstanding the verdict; and (5) the motion of defendant for judgment on answers to special questions should have been sustained by the district court. This, we may add, hold? true notwithstanding defendant strenuously argues that the evidence fails to disclose the height of the transmission lines prior to and at the moment of the accident. The trouble with all arguments advanced by it on this point, as we view it, is that inasmuch as it is conceded that one of such lines was lower than required by the rules of the Corporation Commission and that such lines had not been changed since the date of the accident, the jury, in the absence of proof to the contrary, had the right to assume such lines were of the same height after the accident as they were before.
Again, due to the disposition being made of the appeal, it is neither necessary nor required that we take up time or space in this opinion on questions raised by defendant regarding the conditions and circumstances under which contributory negligence precludes a plaintiff’s recovery in a negligence action. Specifically, defendant contends the evidence as a matter of law establishes contributory negligence on the part of the decedent (Thomas) which was the proximate cause of the accident. Mindful of the universal rule in this jurisdiction that the question whether a person has been guilty of contributory negligence must be submitted to a jury if the facts of record are such that reasonable minds, in the exercise of fair and impartial judgment, might reach different conclusions with re spect thereto and, having given this question the same consideration as those heretofore mentioned, we are unwilling to say the evidence in this case establishes contributory negligence on the part of the decedent as a matter of law.
In passing it should perhaps be stated that, although not identical from the standpoint of facts and circumstances involved, the conclusions announced in the two preceding paragraphs of this opinion are supported by what is said and held in one of our recent decisions. See Henderson v. Kansas Power & Light Co., 184 Kan. 691, 339 P. 2d 702.
The final claim of error advanced by defendant is that the trial court erred in overruling its motion for a new trial. The principal point raised on this claim is that the jury was guilty of such misconduct as to require the sustaining of its motion.
In view of the confronting facts and circumstances we pause here to note that a jury when accepted becomes a part of the court, and must necessarily act as a unit, and the misconduct of any juror which is sufficient to compel the granting of a new trial is misconduct of the entire jury. (66 C. J. S., New Trial, 162 § 47.)
It should also be stated that basically, whether the misconduct in question was prejudicial is a question of fact, and in the final analysis the result in each case is dependent upon its own facts, for it is only when the misconduct complained of can, in the light of all the circumstances, be said to have influenced the jury’s verdict and prevented a fair trial, that prejudice results.
Likewise, it should be noted, that in the consideration of a motion for a new trial for alleged misconduct on the part of the jury each application must be determined mainly upon its peculiar facts and circumstances and should be granted or refused with a view not so much to the attainment of exact justice in a particular case as to the ultimate effect of the decision upon the administration of justice in general. (39 Am. Jur., New Trial, 87 § 73.) And in connection with this particular subject it should be pointed out this court has said (1) that the important question in a motion for a new trial based upon the misconduct of a jury is to determine whether the complaining party was probably prejudiced by such misconduct (Bryant v. Marshall, 135 Kan. 348, 354, 10 P. 2d 868) and (2) that for a jury to consider independent facts, unsifted as to their accuracy by cross-examination, and unsupported by the solemnity attending their presentation on oath before a judge, jury, parties and bystanders, and without an opportunity to contradict or explain them can never be countenanced (Barber v. Emery, 101 Kan. 314, 319, 167 Pac. 1044).
It is equally true, as plaintiff contends, that the established rule in this state is that before a judgment will be reversed and a new trial granted because of misconduct of the jury it must affirmatively appear that the substantial rights of the party complaining have been prejudiced thereby. For recent decisions where this rule has been stated, discussed and applied by this court see Kaminski v. Kansas City Public Service Co., 175 Kan. 137, 259 P. 2d 207; Pulkrabek v. Lampe, 179 Kan. 204, 293 P. 2d 998; Randle v. Kansas Turnpike Authority, 181 Kan. 416, 312 P. 2d 235; Johnson v. Colorado Interstate Gas Co., 182 Kan. 474, 322 P. 2d 781; Domann v. Pence, 183 Kan. 135, 325 P. 2d 321; Logwood v. Martens, 183 Kan. 534, 331 P. 2d 553.
From what has been heretofore related it becomes obvious further facts and matters must be stated for purposes of determining the question now under consideration. Therefore those deemed essential for its disposition will be stated.
1. The case was submitted to the jury on November 13, 1957, at 1 P. M. The jury came back at 3:42 P. M. for additional instructions. At that time the court asked the foreman if the jury was making progress. His response was “Well, yes and no. It’s kind of — In fact I am not sure we’ll reach a verdict.” Thereupon the court released the jury until the next day.
2. The jury returned on November 14, 1957, and resumed deliberations at 9 A. M. At 9:22 A. M. it returned to the courtroom and requested the testimony of one witness (Mr. Fraker) be read in full. It went back to the jury room at 10:18 A. M. Within a short time thereafter, at 10:56 A. M., it returned to the courtroom with its verdict and answers to the special questions.
3. During argument in this court counsel for defendant asserted the special questions showed on their face that answers to questions 1, 2 and 3 disclosed erasure marks evidencing answers other than those appearing on the special questions had been erased and new answers made to such questions. Defendant then requested and received permission of this court to leave the original files of the Clerk of the District Court of Jefferson County with our Clerk, including the special questions and answers for our inspection. We have since examined the special questions and answers and while we cannot, of course, determine the reasons for their existence, it may be stated that examination definitely discloses erasure marks beneath the answers made by the jury to special questions 1 and 3.
4. Shortly after the verdict had been returned and the jury discharged one of defendant’s attorneys had a conversation with a member of the jury, Leonard J. Noll, in which such juror made statements disclosing misconduct on the part of the jury. Thereafter defendant filed its motion for a new trial, one ground of which was based on that premise.
5. Two hearings were held on the motion for a new trial. During such hearings all of the jurors were called as witnesses. The situation disclosed by their testimony can be highly summarized and, based on our view of its import, may be stated thus:
After the jury was discharged on the afternoon of November 13 juror Noll borrowed a book on electricity from a friend, took it home with him, and thereafter read from it extensively until the early hours of the next morning, paying particular attention to the arcing and jumping characteristics of electricity while being transmitted through electric transmission lines. The next morning, after the jury returned to the jury room to resume its deliberations, he proceeded, in the presence of all the jurors, to discuss with most, if not all, of them matters and things he had learned from the book about the subject in question.
Most of the jurors, if not all, remembered Noll making some statements about the matters just mentioned. The great majority of them testified that they did not pay any attention to his statements, but some admitted that they did so.
6. The defendant asserts there is no evidence respecting arcing or jumping of electricity from the transmission lines presented or submitted to the jury during the trial of the case. Plaintiff makes no denial of this assertion and our examination of the record fails to disclose any evidence of that character.
7. The instructions given to the jury by the trial court prior to the submission of the case disclose that the jury was told that no member thereof had the right to mention any matter or thing which might be known to him and which had not been testified to in open court.
With pertinent facts related it can now be stated that little, if any, time need be spent on the question whether the jury was guilty of misconduct under the existing facts and circumstances. Plaintiff, with commendable candor, concedes that it was. We may add that even if she had not done so we would have no difficulty in •reaching the same conclusion. Thus it becomes apparent the all decisive question involved in the present claim of error is whether it appears the substantial rights of the defendant have been prejudiced by reason of such misconduct. Such question, as we have previously indicated, must be determined in the light of the particular facts and circumstances of this case under the rules to which we have heretofore referred.
With salient facts of the case set forth at length, it is neither necessary nor required that we here labor our reasons for conclusions reached respecting the all-decisive question now under consideration. It suffices to say that, keeping in mind the jury’s misconduct was with respect to matters having a direct bearing on its answers to all the special questions, particularly those relating to defendant’s negligence and the decedent’s contributory negligence, we think this is a case where the misconduct in question permeates the findings and the general verdict, at least to the extent it must be said they were not reached by the jury after the fair and impartial consideration to which every litigant is entitled at the hands of the triers of fact in a court of justice. Therefore considering the over-all existing situation, as heretofore outlined, the majority of this court is convinced that the record presented makes it affirmatively appear the defendant’s substantial rights were prejudiced by the complained of misconduct of the jury and that, by reason thereof, the trial court should have sustained its motion for a new trial.
The judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Robb, J.:
The primary, or basic, suit involved in this appeal is one for divorce, but the question before us relates to the status of plaintiff’s attorney and his authority to represent plaintiff as such in the domestic relations matter. The trial court ordered that plaintiff’s attorney, pursuant to this court’s amended rules No. 41 and No. 54, was required to obtain local counsel and further ordered that unless he did so within a certain time, the petition and other pleadings and orders would be stricken. Plaintiff’s attorney failed and refused to comply and they were so stricken. It is from this order that plaintiff has appealed.
On March 10, 1959, plaintiff’s verified petition for divorce was filed in Wyandotte county and signed by Keith Martin, 5917 Woodson Road, Mission, Kansas, as attorney for plaintiff. An order allowing temporary alimony, attorney’s fee and a restraining order were entered on the same date.
Defendant moved to strike the petition and temporary order for the reason that Martin is a member in good standing of the Kansas City and Missouri state bar associations, that he regularly practices in that state and maintains his office at 2205 Bryant Building, Kansas City, Missouri; that Martin had no authority to file such petition or obtain such temporary order because he does not have associated with him as attorney of record a member of the bar of the state of Kansas, and the above pleadings were therefore filed in violation of rules No. 41 and 54 of the Supreme Court of Kansas, as amended, and G. S. 1949, 7-104.
On April 17, 1959, in its ruling on this motion the trial court stated,
“It is therefore, ordered that plaintiff’s attorney, Keith Martin, be and he is -required to obtain local counsel pursuant to amended court rules 41 and 54.
“It is further ordered that unless plaintiff’s attorney shall do so by May 1, 1959, the petition shall on May 1, 1959, be stricken, as well as other pleadings and orders.”
■ The plaintiff filed a notice of appeal as a result of this order and on May 4, 1959, the trial court entered an order dismissing plaintiff’s petition without prejudice to future prosecution and plaintiff amended her notice of appeal to include an appeal from the order of May 4,1959.
The testimony showed that after his graduation from the law school of the University of Kansas in August, 1947, Martin was admitted to the bar of Missouri, became associated with a law firm in Kansas City, Jackson county, Missouri, and has beén active in the bar association of the state of Missouri, as well as regularly practicing in the courts of that state since his admission there. In March, 1948, Martin was admitted to the bar of the state of Kansas and opened an office in Mission, Johnson county, Kansas, which he still maintains. He has been city attorney for Mission since 1951, is a member of the Kansas State Board of Tax Appeals, and has regularly practiced in the courts of Kansas since his admission to the bar of Kansas. He has also been áctive in the bar association of the state of Kansas as well as the Johnson County Bar Association.
There was testimony as to Martin’s high scholastic achievements and as to his legal ability but these facts, although highly commendable to him, will not be reiterated since they do not alter the admitted fact that he is a member of the Missouri bar and regularly practices in that state nor can such evidence have any determinative force with respect to the primary question now before us, namely, the correctness of the trial court’s order.
Under the judicial power that is given to it by article 3, section 1, of our state constitution, this court has from time to time promulgated necessary rules for the examination of applicants for admission to the bar of this state. (G. S. 1949, 7-103.) These rules of the Supreme Court, while not statutory law, appear under G. S. 1949, 7-122, and in the forepart of certain volumes of our Kansas Reports. The latest appearance is found in 183 Kan. xi, et seq., and the particular rules in question here are No. 41 and No. 54 which were amended on December 15, 1958. No. 41 was amended by addition of the following:
1 “Provided further however, The authority granted to practice law shall not be exercised except as provided under Rule No. 54 infra, when the licensee herein has been admitted to the Bar of another state or territory and is regularly engaged in the practice of law in such other state or territory.” (p. xviii.)
Rule No. 54, as amended, reads as follows:
“An attorney regularly practicing outside of this state and in good standing as a member of the Bar of the place of his regular practice may. be recognized as an attorney by the courts, commissions, and agencies of this state, for any action or proceeding, but only if he has associated with him as attorney of record in such action or proceeding a member of the Bar of this state qualified under the provisions of G. S. 1949, 7-104, upon whom service may be had in all matters connected with such action or proceeding proper to be served upon an attorney of record.” ,(p. xix.)
Pertinent parts of G. S. 1949, 7-104, provide:
“Any regularly admitted practicing attorney in the courts of record of another state or territory, having professional business in the Courts ... of-this state, may, on motion be admitted to practice for the purpose of said business only, in any of said courts . . . upon taking the oath as aforesaid and upon it being made to appear by a written showing filed herein, that he has associated and personally appearing with him in the action, hearing or proceeding an attorney who is a resident of and duly and regularly admitted to practice in the courts of record of this state, upon whom service may be had . . . as if personally made on such foreign attorney, within this state, and such foreign attorney shall . . . become subject to the order of and amenable to disciplinary action by the courts . . . Provided . . . said associate attorney shall be a resident of and maintain his law office within the judicial district in which said action is filed or pending. No . . . court . . . shall entertain any action . . . while the same is begun, carried on or maintained in violation of the provisions of this section. . . .”
The intent and purpose of the rules and the statute are clearly expressed in the terms thereof. Martin clearly and fully comes within and is subject to the foregoing rules and statute which are applicable not only to Martin, but to all lawyers who have professional business before the courts of the state of Kansas. Martin contends he has been singled out and that amended rule No. 41 contravenes the constitutional rights guaranteed to him under the due process and equal protection clauses of the fourteenth amendment to the federal constitution and in support thereof he cites the recent cases of Schware v. Board of Bar Examiners, 353 U. S. 232, 238, 77 S. Ct. 752, 1 L. ed 2d 796; Konigsberg v. State Bar, 353 U. S. 252, 77 S. Ct. 722, 1 L. ed 2d 810; and In re Patterson, 353 U. S. 952, 77 S. Ct. 869, 1 L. ed 2d 906. This court has been cognizant of these federal cases cited by Martin but a careful re-reading thereof convinces us they do not present situations comparable to our present one. Martin has not been singled out or made an example of and he has not been deprived of any right to practice law before the courts of this state but rather, by his own choice, he has brought himself within the amended portion of rule 41 which merely requires compliance with G. S. 1949, 7-104. Martin’s license to practice law before the courts of the state of Kansas has not been in dispute nor has he been disbarred. In Depew v. Wichita Association of Credit Men, 142 Kan. 403, 49 P. 2d 1041, statutory provisions’ having reference to qualifications and admissions of attorneys to practice law in Kansas were construed and held not to violate the fifth or fourteenth amendments or section 10 of article 1 of the federal constitution. Nor do they violate section 2 of our bill of rights. Such court rules and statutory regulations were held to be effective and directory when in accord with the inherent power of the judiciary because the licensees are officers of the court. (p. 406.)
Defendant calls our attention to a very interesting annotation on the subject of integration of state bar associations which further supports the position our court has taken that our rules and the pertinent statute are proper because they provide for a more efficient administration of the courts and thereby safeguard not only the public generally but particularly those who appear before the courts of this state. (Re Nebraska State Bar Asso., 114 A. L. R. 151, anno. 161.)
We have examined the other arguments and authorities cited but it would serve no purpose to extend the opinion with a discussion thereof.
The trial court in compliance with the above rules and statute required the plaintiff through her counsel within a certain time to comply therewith by associating with Martin an attorney who met the directions therein contained. The plaintiff refused to comply and insisted that Martin had previously represented her in legal matters both in Missouri and in Kansas, that she had faith in him, and that she would not have other counsel associated in the case. As a result of plaintiff’s position, the trial court in its sound judicial discretion dismissed her divorce suit.
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The opinion of the court was delivered by
Wertz, J.:
This was an action for the recovery of money under the terms of a written contract.
The pertinent facts may be stated as follows: Plaintiff (appellee) was a builder and defendant (appellant) a real estate agent. The parties entered into a written contract in March, 1957, whereby plaintiff was to build a house on lots owned by defendant for the purpose of resale. Plaintiff was to furnish $2000 and defendant was to assist in further financing the project by signing plaintiff’s notes at the bank for $7500 to pay for the materials and labor used in the construction of the dwelling. The house was to be constructed to meet F. H. A. approval and when completed by plaintiff, defendant was to attempt to sell or help plaintiff sell the property for $14,250, as shown on the conditional commitment issued by F. H. A., or at a price fixed by plaintiff. When so sold, defendant was to first receive $1000 for his lots, $500 as a real estate commission and for other services in obtaining a F. H. A. loan, and was to be reimbursed for the money advanced or guaranteed in the construction of the house.
The contract further provided that if construction work was stopped for more than ten days without satisfactory reason, plaintiff was to forfeit his interest in the property. It further provided that if plaintiff was unable to sell the house at F. H. A. approved value or at some other price which would pay defendant in full, or if plaintiff was unable to obtain a loan in Iris own name on the property on or before October 1, then defendant should have the right to take over the property and either sell it or secure a loan thereon, or rent or occupy it as his own. If defendant could sell the house within one year after taking possession, then the proceeds should be used, first, to pay defendant for money due him and, second, to pay plaintiff for the money invested and the labor performed and, third, the balance should be divided between the parties.
The evidence disclosed the plaintiff completed construction of the house in August and reported completion thereof to F. H. A., whose inspector approved the construction with the exception of two minor changes which would take but a day or two to correct and at a cost of approximately $100. Defendant agreed to and did have the corrections made so that plaintiff could leave on a trip to California.Subsequently and in October, defendant, without notice to or consultation with plaintiff, sold the house to a purchaser for $12,900, after making extensive alterations.
It was plaintiff’s contention that defendant had no authority to sell the house at less than the F. H. A. commitment price of $14,250 and that defendant was liable to him under the contract, which was based on such commitment price.
The defendant contended that the plaintiff forfeited his contract and that he, defendant, had a rigfrt to sell the property at the best price obtainable.
The trial court rendered judgment for the plaintiff. Defendant appeals and contends the trial court erred (1) in finding there was no forfeiture of the contract on the part of the plaintiff, and (2) in misconstruing the contract and holding the defendant had no right to sell the property at less than the F. H. A. commitment price of $14,250 without consent of plaintiff.
Defendant’s first contention rests wholly upon a question of fact. The contract provided that if construction was stopped by plaintiff for more than ten days without satisfactory reason, defendant had the right to complete the construction and plaintiff would forfeit his interest in the property. The contract required the plaintiff to build a house on defendant’s lots to meet F. H. A. requirements. The record discloses and amply sustains the trial court’s finding that plaintiff, without delay, performed his obligations under the contract to construct the house on the property in question to meet F. H. A. approval, and that F. H. A. approval was obtained, except for two items,' as shown by the evidence, pertaining to a drain under the house and flashing; that as to those items strict performance was waived by agreement of the parties and there was no forfeiture of plaintiff’s rights under the terms of the written contract.
Defendant’s second contention that the court did not properly construe the contract is without merit. The contract is clear and unambiguous and its terms are not in dispute. It provided that upon completion of the house defendant would attempt to sell or would help plaintiff sell the property at the F. H. A. approved value of $14,250, or at a price fixed by the plaintiff. There is nothing in the contract to indicate that without the consent of plaintiff defendant had the right to sell the property at less than the mentioned F. H. A. commitment price. The general rules applicable to interpretation of contracts were properly applied by the trial court.
The defendant has failed to make it appear that the judgment of the trial court was erroneous and it is therefore affirmed.
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The opinion of the court was delivered by
Fatzer, J.:
The defendant, Theodore L. Handke, was convicted on a charge of obtaining $3,000 from Herman F. and Bettie Pankey by false pretenses in violation of G. S. 1949, 21-551. He appeals from the overruling of his motion for a new trial, the judgment of conviction, and the sentence of confinement in the State Penitentiary for a term not exceeding five years.
The defendant is a resident of Leavenworth, and was engaged in the business of building houses. From November, 1956, to April, 1957, he entered into construction contracts with numerous persons in Topeka and Kansas City under the name of Handke Construction Co., and later, Crest Homes. Several homes were built by him in Leavenworth from 1953 to 1956. On June 26,1957, defendant went to Atchison and contacted Mrs. R. H. Abbuehl, whom he employed to receive telephone calls on his behalf from prospective buyers or people who wanted houses built. She communicated that information to defendant, who either telephoned her every morning or stopped at her house. He would not give her his address but did give her his telephone number. He told her that the Built-Right Construction Company was the name of the company that would do the building.
Through this medium the defendant contacted the complaining witnesses, Herman F. and Bettie Pankey, husband and wife, and called upon them at their home on June 30, 1957, where they discussed the construction of a house. Defendant showed them some plan books containing pictures of houses; When they had picked out the house they wanted, he said he would have the plans drawn up in his office. He told the Pankeys that he was building houses in Topeka and Kansas City; that he had three crews of men working for him in Topeka and Kansas City, one crew to construct the basement and foundation,- one crew to construct and rough-in the house, and one crew to do the finishing work; that he had built houses on Gutherie Circle, a part of Sunnyhill Subdivision in Atchison; that he owned property out by the hospital, by St. Joseph’s church, at 12th and Mound Streets, as well as three lots in Gutherie Circle and they could have their choice, and that he would commence work immediately and would build the house and have them moved into it in 60 to 90 days.
The Pankeys selected a lot in Gutherie Circle and the parties entered into a construction contract which provided for the building of a house by defendant for the sum of $12,500. The contract was a printed form provided by the defendant. After the contract was signed and at the defendant’s request the Pankeys gave him a check for $3,000 as a down payment. The defendant told them he needed the money to purchase building materials so construction of the house could begin immediately, otherwise he would have to borrow money himself, which would delay commencement of construction. The contract provided that defendant would have one year in which to build the house, and at the time the agreement was signed Pankey objected to this provision but the defendant said there was no reason to change it; that he owned the company and would keep his word and build the house within 60 to 90 days. Pankey read the contract before he signed it but his wife did not.
Not hearing from the defendant for some time after the contract was signed, Pankey went to Leavenworth on July 12, 1957, to see the defendant and talk to him about “some things he had heard about him,” but was unable to locate him. On July 22,1957, Pankey made another trip to Leavenworth to see the defendant and this time saw a note on his office door stating that he was on vacation and would re-open the office on August 10,1957.
The next day, July 23, 1957, Pankey consulted the county attorney of Atchison county and that same day they went to Leavenworth to find the defendant, but could not locate him. The Pankeys' did not talk with defendant again during July, but did receive a telegram from him on July 31,1957, and later a letter stating that he would send the blueprints of their house before too long. Later they received a questionnaire for an FHA loan, and on August 10,1957, they received the blueprints.
On August 3, 1957, a complaint was filed charging the defendant with obtaining money by false pretenses from Herman Pankey, and a warrant was issued for his arrest. On August 9, 1957, the defendant was arrested and placed in jail where he remained until August 30, 1957, at which time a preliminary hearing was held and he was discharged. Following his discharge, and on the same day the same charges were re-filed and he was re-arrested but was released on bond. At the second preliminary hearing on April 4, 1958, he was bound over for trial at the next regular term of the district court for a violation of G. S. 1949, 21-551.
On April 4, 1958, an information was filed containing one count charging the defendant with obtaining $3,000 on July 1, 1957, from Herman and Rettie Pankey by false and fraudulent misrepresentations and pretenses. On April 24, 1958, an amended information was filed, alleging the same offense but more detailed, containing seven separate false and fraudulent misrepresentations and pretenses. The defendant then filed a plea in abatement upon grounds that he had not been bound over for trial for any alleged crime against Rettie Pankey, which was overruled, and upon trial by a jury the defendant was found guilty.
The questions presented in this appeal will be disposed of in the order in which they were raised. It is first contended that since the amended information charged the defendant with obtaining money by false pretenses from a person (Rettie Pankey) whose name did not appear on the complaint or warrant when the preliminary hearing was held, he was denied the right to have a preliminary examination on that charge contrary to the provisions of G. S. 1949, 62-805, and the district court erred in overruling his plea in abatement. We think the contention is without merit.
In the early case of State v. Smith, 13 Kan. 274, 296, the defendant was arrested on a charge of embezzling a certain sum of money belonging to the county of Leavenworth. The information charged him with embezzling a larger sum of money belonging to several designated funds in the treasury of that county. Defendant’s plea in abatement upon the ground that he did not have a preliminary examination as to the embezzlement of any money belonging to any person other than Leavenworth county was overruled, and this court held there was no error in such ruling. Furthermore, it has been said, that an information is to be framed according to the facts developed at the preliminary examination and it is not required to correspond to the complaint (State v. Wisdom, 99 Kan. 802, 803, 162 Pac. 1174).
One of the principal purposes of a preliminary examination is to give a defendant reasonable notice as to the character of the alleged offense and to apprise him of the nature of the evidence he will be required to meet when he is prosecuted in the district court. It is not necessary that all of the details and technical averments re quired in an information be set forth in the papers used at the preliminary examination, and the defendant should take notice, from the evidence introduced by the state on such examination as well as from the papers in the case, of the nature and character of the offense charged against him (Cunningham v. Hoffman, 179 Kan. 609, 611, 612, 296 P. 2d 1081; State v. Rangel, 169 Kan. 194, 217 P. 2d 1063; State v. Johnson, 70 Kan. 861, 868, 79 Pac. 732).
In the instant case the defendant was well aware of the fact that Herman and Bettie Pankey were husband and wife; that each participated in the negotiations leading up to the signing of the contract and in the giving of the $3,000 check as a down payment. The contract was signed by both Herman and Bettie Pankey and the $3,000 check was a personalized check with their names printed on its face. In its brief the state asserts, and it is not denied by defendant, that there was an abundance of testimony the $3,000 check was drawn on the Pankeys’ joint account. Under such circumstances, it cannot be said that the defendant was not given reasonable notice of the character and nature of the offense with which he was charged or that he was in any way surprised that Bettie Pankey was named in the amended information as one of the defrauded persons (State v. Wooden, 110 Kan. 315, 203 Pac. 722). Moreover, the complaint, warrant, and amended information charged the defendant with having committed only one offense and that offense may be alleged in the information in such a manner as to guard against the contingencies of the testimony at trial (State v. Spaulding, 24 Kan. 1).
Defendant next contends that the tidal court erred in denying his motion for a mistrial after one of his witnesses was arrested for perjury during the trial. As a general rule, it is prejudicial and reversible error for the judge to order the arrest of a witness for perjury in the presence of the jury and during the trial (23 C. J. S., Criminal Law, § 996, p. 357), however, that is not the situation presented. Here, the witness was arrested during the noon recess, after his testimony had been completed, outside the presence of the jury and without the knowledge of the court. Further, it appears that the trial was completed on that same afternoon. Under such circumstances, it has been held that the arrest of a witness does not constitute prejudicial error requiring a reversal of the verdict and judgment (Young v. United States, 107 F. 2d 490; Nolan v. Commonwealth, 261 Ky. 384, 87 S. W. 2d 946; Elkins v. State, 29 Okla. Cr. 175, 181, 182, 233 Pac. 491; State v. Williams, 124 La. 779, 50 So. 711; Steel v. State, 82 Tex. Cr. Rep. 483, 200 S. W. 381; 23 C. J. S., Criminal Law, § 996, p. 358). See., also, State v. Marshall, 95 Kan. 628, 148 Pac. 675; State v. Ketter, 121 Kan. 516, 519, 247 Pac. 430. Moreover, it was not made to appear the jury was ever aware of the witness’ arrest. Without prolonging the discussion on this point, we conclude that no prejudicial error resulted which would require a reversal of the judgment.
Defendant next contends the evidence did not establish that he obtained money by false pretenses from the Pankeys and he was not guilty of a crime as defined by G. S. 1949, 21-551. He argues .the state failed to prove the following vital elements of the crime for which he was convicted: (1) that there were false and material representations or statements of a past or existing fact made by defendant; (2) that there was a reliance by the Pankeys upon any of such false representations or statements, and (3) that there was an actual defrauding.
At the outset, it may be stated that to constitute the offense of obtaining money by false pretenses, the state must aver and prove the following four elements: (1) there must be an intent to defraud; (2) there must be an actual fraud committed; (3) false pretenses must have been used for. the purpose of perpetrating the fraud, and (4) the fraud must be accomplished by means of the false pretenses made use of for the purpose, that is, they must be the cause, in whole or in part, which induced the owner to part with his money or property (State v. Metsch, 37 Kan. 222, 15 Pac. 251; State v. Matthews, 44 Kan. 596, 25 Pac. 36; State v. Clark, 46 Kan. 65, 66, 26 Pac. 481; State v. McCormick, 57 Kan. 440, 442, 443, 46 Pac. 777; State v. Dreiling, 147 Kan. 482, 484, 78 P. 2d 4). The rule is stated in 35 C. J. S., False Pretenses, § 6, p. 644, as follows:
“Generally speaking, to constitute the crime of obtaining property by false pretenses there must be a false representation or statement of a past or existing fact, made by accused or someone instigated by him, with knowledge of its falsity and with intent to deceive and defraud, and adapted to deceive the person to whom it is made; and there must be, further, a reliance on such false representation or statement, an actual defrauding, and an obtaining of something of value by accused or someone in his behalf, without compensation to the person from whom it is obtained. . .
With respect to the first element argued by the defendant, it may be admitted that representations or statements must relate to past or existing material facts and that representations or statements relating to future events or promises are not sufficient (In re Snyder, Petitioner &c., 17 Kan. 542, 556; State v. Cowdin, 28 Kan. 269, 273; State v. Briggs, 74 Kan. 377, 379, 86 Pac. 447; State v. Beezley, 119 Kan. 300, 302, 239 Pac. 998). Piowever, the mere fact that a false pretense of an existing or past fact is accompanied by a future promise will not relieve the defendant or take the case out of the operation of the statute (State v. Cowdin, supra, p. 274; State v. Gordon, 56 Kan. 64, 67, 42 Pac. 346; State v. Briggs, supra, p. 380; State v. Terrill, 87 Kan. 745, 125 Pac. 65; State v. Maihes, 108 Kan. 488, 492, 196 Pac. 607), and, therefore, even though defendant may have made false representations as to future promises or events, he will not be relieved if he also made material false-representations as to existing or past facts. Furthermore, representations as to future promises or events may be considered along with those relating to existing or past facts (State v. Cowdin, supra, p. 274) and it is not necessary to prove that all of the representations alleged to have been made were actually made or that they were all false (State v. Hetrick, 84 Kan. 157, 113 Pac. 383; State v. Addington, 158 Kan. 276, 147 P. 2d 367), any one will suffice.
Did the defendant make false and material representations of past or existing facts? The evidence amply warrants the conclusion that at the time the contract was entered into and the down payment made on July 1, 1957, the defendant did not have building going on in Topeka; that he did not have three crews of men working for him; that he had no intention of having a house constructed for the Pankeys within 60 to 90 days; that he did not contemplate immediate construction; that he did not intend to use the $3,000 paid to him to purchase building materials since he negotiated the check to his wife who deposited it in her personal checking account and drafted checks for personal living expenses and for a family vacation to New Mexico, and that he did not own property situated in the vicinity of the hospital, St. Joseph’s church, or on the corner of 12th and Mound Streets. Clearly, those were false representations relating to past or existing material facts. It is a false pretense where a man represents himself to be in a situation or business in which he is not (State v. Briggs, supra, p. 380).
Did the defendant’s false representations induce the Pankeys to part with their money? We think they did. It is well settled that the persons defrauded must have relied upon the false pre tenses made, but it is not necessary to a conviction that the false pretenses be the sole inducement to the obtaining of money or property (State v. Briggs, supra, p. 380; State v. Faulkner, 139 Kan. 665, 668, 33 P. 2d 175; State v. Barger, 148 Kan. 590, 596, 83 P. 2d 648), and the Pankeys need not have relied solely upon the false pretenses. It is sufficient if such pretenses contributed to or were a part of the moving cause which induced them to part with their money; each testified they gave the money to defendant in reliance upon the representations made by him and that testimony was competent to establish the element of reliance (State v. Hetrick, supra). See, also, Bice v. Rogers, 52 Kan. 207, 34 Pac. 796; State v. Kirby, 62 Kan. 436, 63 Pac. 752.
Was there an actual defrauding? Defendant asserts that Pankey, by his own acts in causing the defendant’s arrest and imprisonment for some three weeks within the 90-day period made it impossible for him to build the house within that period and there was not an actual defrauding. The defendant was not arrested until some 40 days after the Pankeys made the down payment and during that time he had done nothing toward construction except to have a bulldozer move some dirt around. He did not even attempt to obtain the required building permit. Under such circumstances, it cannot be said that there was not an actual defrauding, or that the Pankeys made it impossible for defendant to build the house.
Defendant next contends the trial court erred in overruling his motion to strike the testimony of several witnesses from Topeka and Kansas City. These witnesses were allowed to testify, over defendant’s objections, that he had entered into construction contracts with them which were similar to the Pankey contract; that he had made similar representations to them, that is, that he would build a house for each of them within 30 to 90 days; that they had each made a down payment (the twenty-two Topeka contracts totaled approximately $26,000 in down payments, and more than eighteen contracts were executed in Kansas City with substantial down payments), and that he had failed to perform his part of the contracts or had only partially performed, and had made no refunds. With respect to partial performance of Topeka contracts, he commenced construction of only three basements, and the construction of one house to rough-in. The basements constructed had mechanic’s liens filed against them for labor and material which were not liquidated by the defendant, and the purchaser completed the “roughed in” house himself. No construction was commenced on any of the houses contracted for in Kansas City except one.
The short answer to this contention is that evidence of other transactions, similar to the one for which a defendant is being prosecuted, is admissible to show that he was well aware of what he was doing, to show his usual method of business, and to show his deliberately willful and guilty intent to falsify for the purpose of defrauding the complaining witnesses (State v. Maihes, supra; State v. Briggs, supra, p. 382; State v. Nash, 110 Kan. 550, 204 Pac. 736; State v. Momb, 150 Kan. 674, 677, 678, 95 P. 2d 349; State v. Beezley, supra). For a discussion of the general rule on this subject see State v. Myrick, 181 Kan. 1056, 1059, 317 P. 2d 485 and Anno. 80 A. L. R. 1308-1334. We pause to note, the defendant made no objection to the instructions given by the district court and he has not abstracted them; therefore, we assume the instructions given were correct and fully informed the jury as to how it might consider such testimony in accord with the above mentioned rule (State v. Barger, supra, p. 596; Rierson v. Southern Kansas Stage Lines Co., 146 Kan. 30, 69 P. 2d 1).
The defendant’s last contention is that it was error to permit witnesses, particularly the Panlceys, to testify, over his objections, with respect to the negotiations leading up to the signing of the contracts in question and particularly with respect to the representations that he would build the houses in 30 to 90 days, inasmuch as such testimony varied the material terms of the various written construction contracts and was inadmissible by virtue of the parol evidence rule. The point is not well taken. In Griesa v. Thomas, 99 Kan. 335, 161 Pac. 670, it was held that:
“The ordinary rule that a written contract speaks for itself and that parol evidence to show tire oral statements, representations and negotiations of the parties which led up to the contract is inadmissible has no application to written contracts procured by the fraudulent representations of one of the parties and which were relied upon by the other.” (Syl. ¶ 4.)
In Stegman v. Professional & Business Men's Life Ins. Co., 173 Kan. 744, 751, 252 P. 2d 1074, it was said:
“. . . An invariable qualification of the rule which makes parol evidence inadmissible to vary the terms of a written instrument is the one which permits such testimony where a contract is induced or procured by fraud. (Cases cited.)” (1. c. 751.)
See, also, Logan v. Collinson, 114 Kan. 620, 220 Pac. 291; Dimmock v. Ploeger, 125 Kan. 461, 264 Pac. 1044. As previously indicated, the evidence was sufficient to establish false and fraudulent representations on the part of the defendant and the testimony was clearly admissible.
We have thoroughly reviewed the record and find no error requiring a reversal.
The judgment of the trial court is affirmed. | [
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|
The opinion of the court was delivered by
Jackson, J.;
This opinion covers three proceedings brought for judicial review of a single order of the State Corporation Commission. The commission’s order was made under the jurisdiction conferred upon it by the statute regulating the production and conservation of natural gas (G. S. 1949, Chapter 55, Article 7). The order concerned the application of the Southwestern Exploration Com pany to attribute another 160 acres to a gas well located on a quarter section in Haskell County. The lease sought to be attributed is some ten miles distant from the well and in Seward County.
After due notice and hearing the commission allowed the application. As shown in the above caption, three separate proceedings for review were filed by the appellees herein and the Southwestern Exploration Company intervened therein. These matters were consolidated for trial in the district court and have been consolidated on appeal to this court. The district court after hearing the arguments of the parties and reviewing the record before the commission set aside the commission’s order. The commission and the intervenor have now perfected their appeals to this court.
A historical review of the statutes and facts will be helpful before taking up the questions raised in this appeal. The corporation commission was first given authority over the production and conservation of natural gas by Laws of 1935, Chapter 213, and this statute was amended by Laws of 1945, Chapter 233, which now is found in G. S. 1949, Chapter 55, Article 7. It will be noted that section 55-706 of the act was amended in 1957 and appears in the supplement to the statute, but this amendment has no application to the instant case.
In 1944, the corporation commission issued what is known as the basic proration order for the Hugoton field. This order was made after rather extensive investigation and the commission found that one gas well could adequately and sufficiently drain 640 acres of land without causing waste and therefore, fixed 640 acres as the unit of land to be attributable to a gas well for full allowable operation. Paragraph “g” of this basic order is important in this case, and the text of paragraph “g” is appended to this opinion. It will be noted that if a gas well does not have as much as 640 acres attributable to it, it shall be rated by the fraction of acres based upon 640 acres. In this basic order, it was provided that as to wells for the future, acreage might be attributable to the well if “contiguous or adjoining.” There is no other provision for attributing acreage except as to wells existing at the time of the order. It is well known that the commission upon application and hearing, has in numerous cases attributed acreage which was not contiguous or adjoining, but the basic order has never been amended in this particular.
A short statement of facts will show how the present controversy arose. Sometime prior to February 1, 1956, the intervenor, South western Exploration Company, hereinafter referred to as Southwestern, drilled their gas well on a quarter section in Haskell County which is described in the record, but which we shall refer to as the Herron tract. Although this gas well was a producing well, it could not be put into production without having an allowable assigned thereto by the corporation commission. By an application filed in February of 1956, Southwestern attempted to attribute to the Herron tract and the well thereon some 480 acres located some twenty-two miles from the Herron tract. This application was denied by the commission by order of February 28, 1956. Thereafter, by order dated April 4, 1956, the Herron 160 acres was attributed to the well thereon and there is no question concerning this order.
Later, Southwestern filed an application to attribute to the Herron tract a quarter section located in Stevens County some thiry-four miles distant from the Herron tract. This application was allowed by the commission by order of May 29, 1956, and the Herron well was thus given a rating of 320 acres. There was no appeal from this order and it is not questioned in this appeal.
On October 4, 1956, Southwestern made another application by which they sought to attribute to the Herron tract a quarter section located in Seward County which is known as the Prater tract. The Prater tract is approximately ten miles distant from the Herron tract. A hearing was had upon this application and the Prater tract was attributed to the Herron tract by order of the commission dated November 8, 1956. After petitions for rehearing had been denied, the appellees herein filed their appeals to the district court.
After a hearing on the matter in the district court, the district court held that the order appealed from was invalid in that it was in violation of the general basic proration order for the Hugoton field and therefore, set the special order aside. The principal question on this appeal is as to the correctness of the order of the district court.
It may be noted that not all of the appellees are in agreement as to the order appealed from. Only the appellees in case No. 41,317 contend that the special order could not be issued because it was contrary to or an exception to the provisions of the general proration order. The other appellees, the intervenor and the corporation commission all contend that special orders in the nature of exceptions to paragraph “g” of the basic order may be granted. It is pointed oút that under the provisions of the statute, the same notice is given for the hearing on a special order as was given for the making of the general order. The commission further points out that the basic order contained a “saving clause” which reads as follows:
“The Commission hereby retains continuing jurisdiction óf tire subject matter hereof and of the parties hereto for the purpose of issuing from time to time such further order, amendments, additional order, rules and regulations as may be necessary and proper in the premises.”
' The commission further points out that' under the general rules and regulations for the conservation of natural gas, rule 82-2-200 reads as follows:
“Special Rules, Regulations and Orders will be issued when required and shall prevail as against General Rules, Regulations and Orders if in conflict 'therewith.”
It will also be noted that the statement made in the case of White Eagle Oil Co. v. State Corporation Comm., 168 Kan. 548, 214 P. 2d 337, to the effect that the basic proration order for the Hugoton gas field had been filed with the revisor of statutes as provided by- G. S. 1949, 77-405 was in error, and that said order has never been filed. The commission points out that it has no statewide application and therefore, is not perhaps eligible for filing.
At the time this case was before the district court, the court had several review proceedings pending, all of which- involved various questions relating to action by the corporation commission on exceptions to the basic proration order for the Hugoton gas field. In the findings of fact and conclusions of law in this record, the district court referred to the detailed opinion filed in a companion case entitled Day v. State Corporation Commission which likewise is now before this court on appeal and which is being- decided this day, see Day v. State Corporation Commission, No. 41,102. Since this court believes that the legality of exceptions to the basic order can more easily be decided in this opinion, we shall set out here a part of the opinion of the learned trial judge in the record in the Day case. The opinion reads in part as follows:
“The Commission legislates by exceptions when it allows or grants an exception to the Basic Order without first amending the Basic Order to provide for an exception according to a standard or within a frame work and boundary for its guide and for the guide of all producers and owners of gas interests in the Hugoton Gas Field. If the Commission can make exceptions to the rules contained in the Basic Order then it could likewise make exceptions to the requirements and restrictions contained in the Statutes.
“The Commission may amend the Basic Order and its other rules, from time to time as needed, and thus provide for the granting of exceptions just the same as the Legislature can amend or repeal statutes. The granting of exceptions without amending its rules amounts to a quasi-judicial repeal or amendment of the Basic Order without exercising its legislative authority in adopting new rules to replace the rules amended or repealed. Persons taking or producing gas from the Hugoton Gas Field have the right to and must know the restrictions, if any, that are imposed as a prerequisite to the taking of gas. The Commission by its granting of exceptions to the Basic Order, without amending the order, has made it impossible for any producers or operators in the Hugoton Gas Field to know what they can or cannot do without going through all of the exceptions orders made by the Commission.
“As applied by the Commission, the exceptions are the rules. Since such exceptions are based on individual instances, no standard or guide for exceptions are established to guide such producers, except such as can be determined after the examination of each exception order. The making of rules by means of granting exceptions amounts to no rules whatsoever. As contended by the Commission, it is the making of laws or rules as the 'occasions arise, which certainly is not a guide for anyone wishing to avail himself of the privilege of producing gas in the Hugoton Gas Field. It amounts to rule by man, rather than rule by law. It is true that the Commission is very busy and no doubt over worked and it would take considerable time for the Commission to send notices and take testimony as they would have to in amending the Basic Order, or any of its other rules to take care of what they may consider a hardship case. However, unless this is done, the people of Kansas have no rule or guide to conduct them in their operations in the Hugoton Gas Field. If a person had an oil or gas lease covering 160 acres in the Hugoton Gas Field and wanted to drill a well and unitize it with other lands in order that he would have a full 640 acre producing allowable and he went to any lawyer in this state or to the Commission, its attorneys, or any of its employees, to find out what other lands he could unitize with the said lease, he would be unable to get this answer under this practice of granting exceptions as practiced by the Commission. A lawyer could only tell him to acquire leases in the Hugoton Gas Field on 480 additional acres, then file an application for an exception to the Basic Order and if no one appears in opposition, he might get an exception order. The only rules that could safely guide him are incorporated in the Basic Order and they do not provide for the exception which the Commission attempted to grant in this case.
“If the Commission feels that the ‘adjoining or contiguous’ provisions in Section ‘g’ are not sufficient to take care of these cases, they could, on their own or other motion, call a hearing for the purpose of amending such section and then change the Basic Order to provide for exceptions with a frame work, standard or guidé that would be applicable to all producers and landowners in the Hugoton Gas Field.
“If the Commission can by means of orders, grant exceptions to the Sec tion ‘g’ of the Basic Order and mainly to the words ‘contiguous or adjoining’, it can also grant exceptions in the same manner and to the same extent to all of the various other provisions in this Basic Order and the statutes and thus by individual exceptions repeal piecemeal all the general rules and guides of the Basic Order and the statutes without substituting other general rules and guides in place thereof.
“Under such a conception the Basic Order serves no purpose. Paragraph granting the exception herein to specifically named parties and affecting specifically described land, is a ‘Rule, Regulation and Order’ as such words are used in Rule 82-2-200 of the Conservation Code, the Statutes of Kansas and the Basic Order.
“Under such a conception the Basic Order serves no purpose. Paragraph ‘g’ of the Basic Order provides that gas leases must be adjoining and contiguous in order to receive a production allowable and no applicable exception is provided for therein. Under such an interpretation every section of the Basic Order can be repealed, amended and ignored by the Commission through the means of individual exceptions.
“The granting of exceptions by the Commission, without rules providing for exceptions wherein such rules act as a standard, frame work and guide within which to apply such exceptions, is special legislation and unconstitutional.”
This court fully agrees with the learned judge of the district court that it was erroneous and contrary to the general rules of administrative law for the commission to promulgate a general order for the guidance of the people interested in the Hugoton gas field and then to embark on a practice of granting or denying exceptions to the basic order without amending that order to advise the public as to what the “ground rules” are to be. We think such a practice is unlawful and agree with the trial court’s order setting aside the order here being reviewed. We further direct attention to the power of the courts in reviewing orders made by the commission under G. S. 1949, 55-707 and 55-606.
However, we disagree with the conclusion of the trial court that such orders granting exceptions without amending the basic order were made without jurisdiction and were unconstitutional as special legislation. It would appear that the district court was influenced in this conclusion by the case of H. F. Wilcox Oil & Gas Co. v. State, 162 Okla. 89, 19 P. 2d 347, 86 A. L. R. 421. The constitution of the state of Oklahoma differs quite radically in its provisions from our own state constitution. In Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 169 Kan. 722, at p. 733, 222 P. 2d 704, this court, speaking through the late Mr. Chief Justice Harvey, indicated that section 17, of article 2, of our constitution did not apply to orders of the corporation commission relating to the Hugoton gas field. Moreover, this court does not think it necessary to decide whether the commission is acting under delegated quasi-legislative power or under quasi-judicial power. All this court wishes to decide is that notwithstanding the fact that the commission gave the same kind of notice before issuing a special order as given before issuing a general order or regulation, a special order which is contrary to the basic rule or regulation for the Hugo-ton gas field constitutes error and is contrary to law. On the other hand, we do not think that such order would be void or unconstitutional simply because of the procedure followed.
It is clear that the lower court’s decision may be affirmed by this court although we do not agree with all of the reasons given for the decision, see Securities Acceptance Corporation v. Perkins, 182 Kan. 169, syl. ¶ 6, 318 P. 2d 1058.
From what has been said, it appears that the decision of the trial court as to the appeals herein should be affirmed. It is so ordered.
APPENDIX
Paragraph “g” of the Basic Order.
“g. That one well completed in the said formation can adequately and sufficiently drain 640 acres without causing waste and, considering the cost of drilling, equipping and operating one well in comparison with the estimated recovery per acre and the slow rate at which the production for said field can be ratably and non-wastefully marketed, the Commission finds that the basic acreage unit to be used in the proration formula hereinafter prescribed should be 640 acres, and that in no instance shall more than 640 acres be attributable to a well for the purpose of calculating the acreage factor except by specific order of the Commission as hereinafter provided. The acreage factor of a well shall equal the number of acres held by production from said well divided by 640. Expressed in a mathematical formula, said acreage factor may be set forth as follows:
Acreage Factor = Na of acres attributeMe 640
In the event that more than one well is located on any one lease, the acreage to be used in calculating the acreage factor of each well on such lease shall be determined by dividing the total number of acres by the number of wells, and the quotient thereof shall be the acreage used in making said calculation. To be considered as attributable to a well, the acreage shall be contiguous or adjoining, with the well located as near as practicable in the center thereof, and in no event nearer than 1,250 feet from any boundary line of the unit; except, however, that this restriction shall not apply to leases or tracts which have already been unitized in compliance with previous orders issued by the Commission, or to wells now in existence and located on tracts containing less than 640 acres.
“Such wells, now in existence, and located on tracts containing less than 640 acres, may be attributed acreage which is held by production from such well, if such acreage is located within a two-mile radius of the well, or upon application, and after notice and hearing, the Commission may authorize the inclusion of acreage as being attributable to a well now in existence if the acreage lies within a three-mile radius of the well and if, upon hearing, it is shown to the Commission that it is impossible or impracticable to unitize the tract upon which such well is located with other acreage lying within two miles thereof: Provided, however, That the Commission may, either on complaint filed, or upon its own motion, after notice and hearing, exclude any acreage from inclusion in any unit which, in its judgment, is not productive and which should not be considered as proven acreage.
“The term “held by production/ as used in this paragraph shall mean that acreage so held participates in the production upon a royalty basis and does not receive delay rentals.
“That there are located in the field certain so-called ‘short’ sections, according to the United States Governmental Survey, and that some of such sections contain materially less than 640 acres. Wherever possible, such sections should be unitized among themselves, or with other leases or tracts, in order to form units of approximately 640 acres: Provided,-however, That the short sections located along the Kansas-Oklahoma state line shall be unitized only with the tracts immediately north thereof and the units thus formed may contain more than 640 acres.
“In cases where it is impossible to create such units, the Commission may, upon proper application, authorize the unitization of such short sections containing materially less than 640 acres with other tract or tracts, and under such conditions the acreage attributable to any well or wells located upon such unit may be greater than the 640 acres hereinbefore provided. However, no such unit shall receive an acreage factor attributing more than 640 acres without an express order of the Commission, and no presumption shall arise from this order that such authorization will be granted in any specific instance, and in no instance shall any unit so formed be granted more than 800 acres. It is further provided, that'producers and owners of gas wells which were completed prior to January 30, 1940 (being the date upon which the first basic order of probation was issued herein), who also possess the right to produce natural gas from other lands and leases within the limits set forth in this provision, may attribute such lands and leases, not exceeding 640 acres, to a unit for production hereunder' (whether such leases are held by delay rentals or otherwise) for a term not exceeding one year from the date hereof. Within such period of one year the owner or producer of such wells shall file with the Conservation Director satisfactory evidence that the owners of the minerals háve become participants in the royalty payments as otherwise hereinafter required. Any such lands which are not within said period so unitized for purposes of sharing the royalties from the wells shall henceforth be excluded as a part of any such production unit.
“That there are located in the field certain so-called long’ sections, according to the United States Governmental Survey, and that such ‘long’ sections lie along the north (correction) line of Township 26 South in Hamilton, Kearny, and Finney counties, and that such long’ sections contain materially more than 640 acres. The Commission finds that, notwithstanding anything else in this order to the contrary, the acreage permitted to be attributable to any well drilled in accordance with rules in any one of such long’ sections may exceed 640 acres but shall not exceed 900 acres, and that the acreage factor for any well located in a long’ section shall be equal to the number of acres not in excess of 900 acres, attributed to such well divided by 640. Expressed in a mathematical formula, said acreage factor for such a well may be set as follows:
. , No. of acres attributable Acreage Factor =-^-
“In the event that more than one well is located in any of the so-called long’ sections, the acreage to be used in calculating the acreage factor of each well on such long’ section shall not exceed 640 acres. To have in excess of 640 acres considered as attributable to a well drilled on any such long’ section, only one well shall be drilled thereon in accordance with these rules, the acreage attributable shall be contiguous or adjoining and all such acreage attributable shall be located within the boundary lines of the long’ section on which the well is located. No acreage located without the boundary lines of such long’ section on which only one well is located shall be considered in figuring the acreage attributable to such well. The well, when only one well is to be drilled to any one long’ section, may be drilled, at the operator’s discretion, at any point within the long’ section not farther than 467 feet from the center -thereof; in no event shall the well be located nearer than 1,250 feet from the boundary line of the long’ section.
“Any well capable of producing natural gas, in existence at the time of the adoption of this order, located in any of the subject long’ sections, shall be considered as the well for such long’ section, regardless of its location within the section, and shall be entitled to have attributed thereto, when properly unitized, acreage within said section not in excess of 900 acres.” | [
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The opinion of the court was delivered by
Jackson, J.:
The appellee as plaintiff brought this action in the district court seeking to recover $15,000 compensatory damages and $5,000 punitive damages from appellants as defendants based upon injury to plaintiff’s rights under a ten year lease previously made between the parties. After a jury trial, plaintiff received a verdict for $7,595 actual damages without punitive damages. The trial court approved the verdict, overruled a motion for new trial, and entered judgment on the verdict.
The appellants have attempted to appeal from the above judgment but we are met at the outset by the motion of the appellee to dismiss the appeal pointing out that no proof of service of the notice of appeal has been filed as required by G. S. 1949, 60-8806.
At the time of oral argument, counsel for both appellee and appellants were commendably frank with the court concerning the manner in which the appeal in this casé was attempted to be perfected. On December 18, 1958, attorney for appellants served the notice of appeal on the attorney for the appellee, but did not ask that he acknowledge service of the same.
Counsel for appellants states that he filed the notice with the clerk of the district court and believes that he filed an affidavit signed by himself showing service on attorney for appellee. The notice of appeal was filed by the clerk of the trial court and transmitted to the clerk of this court, but no affidavit of proof of service was ever filed by the clerk of the district court or transmitted to this court (G. S. 1949, 60-3307). No proof of service of the notice of appeal is set out in the abstract of the appellants.
Appellants recognize that under the decisions of this court the above facts seem to show that this court has no jurisdiction over the subject matter of this appeal. Appellants suggest that because of the fact that it is now admitted that counsel for appellee received a copy of the notice of appeal our former cases should be distinguished. Those cases show clearly that unless the appeal be perfected in all particulars, as provided in section 60-3306, this court has no jurisdiction under the constitution and statutes of the state and is powerless to act in the matter. Attention is directed to Polzin v. National Cooperative Refinery Ass'n., 179 Kan. 670, 298 P. 2d 333, opinion on motion for rehearing, 180 Kan. 178, 302 P. 2d 1003; Thompson v. Groendyke Transport, Inc., 182 Kan. 616, 322 P. 2d 341; and the many cases cited in the opinions of the Polzin and Thompson cases.
It should be noted that in both the Polzin case and the Thompson case the notice of appeal was timely served upon the appellees. But in both cases no proper proof of service was timely .made as required by the statute.
In view of what has been said, the only possible holding this court is able to make in the instant case is to dismiss the appeal. It is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from orders of the court below striking certain allegations from plaintiff’s petition and amended petition in a tort action based on alleged acts of negligence of defendant doctor in the treatment of plaintiff as a patient.
Is there a final order which justifies appellate review thereof under the appropriate statutes? (G. S. 1949, 60-3302, First and Third; G. S. 1949, 60-3303.) Before this preliminary question is determined we must examine the record to ascertain what the sequence of events was.
Plaintiff’s first claim is that the trial court, upon defendant’s motion, erred in striking certain portions of the original petition by reason of their being barred by the statute of limitations. (G. S. 1949, 60-306, Third.) Due to the length of the portions of the petition that were stricken, we shall not repeat them in full but it is sufficient to say that we think the trial court did not abuse its sound discretion in sustaining the motion to strike. Such motion was addressed to the sound discretion of the court and we do not deem it necessary to disturb that ruling. Supporting authorities for this position are G. S. 1949, 60-741; Manwaring v. Reynolds, 108 Kan. 777, 196 Pac. 1086; Vitt v. McDowell Motors, Inc., 180 Kan. 800, 308 P. 2d 115; Byerley v. Braucher, 180 Kan. 816, 308 P. 2d 144; 4 Hatcher's Kansas Digest, rev. ed., Pleading, § 4; 8 West’s Kansas Digest, Pleading, § 11.
Plaintiff filed his amended petition pursuant to permission granted in the order pertaining to the petition. Since we are concerned only with paragraphs II and III, those are all we will set out herein, but it should be mentioned that no other definite and essential allegation of the relationship of doctor and patient is contained in the petition.
“II
“On the evening of January 14, 1953, Plaintiff slipped and fell, hitting his right leg fracturing the fibula a few inches below the knee and fracturing the tibia approximately three inches above the ankle. There was no compound fracture, the skin was not broken or fractured. . Plaintiff was taken to Saint Francis Hospital and Defendant was called to attend him. Defendant did then accept Plaintiff as a patient for diagnosis and treatment of his injuries.
“Ill
Defendant continued to treat the Plaintiff at various intervals and performed several operations on the leg. On instructions of Defendant, Plaintiff returned to a hospital on March 20, 1956. There was drainage from infection and an additional bone graft surgery was recommended by Defendant. On March 22, 1956, Defendant again operated on Plaintiff’s leg through an anterior incision, the fracture region was defined and the pseudo-arthrosis laid bare. Defendant prepared a bed for the graft material by removing a rectangular piece of the bone including the pseudo-arthrosis region anterior only. Defendant then closed the wound with dermal skin sutures, applied dressings and a long leg cast. Plaintiff was discharged from the hospital by Defendant with instructions to report to the office of Defendant for further treatment.”
Keeping within the bounds of the above-cited authorities and in view of what has already been said herein, we conclude the trial court erred in striking the above portions of the amended petition. This determination is supported by the provisions of G. S. 1949, 60-749, as follows:
“A material allegation in a pleading is one essential to the claim or defense, which could not be stricken out from the pleading without leaving it insufficient.”
Since the order of the trial court sustaining defendant’s motion to strike paragraphs II and III of plaintiff’s amended petition did, by elimination, affect plaintiff’s substantial rights in the action because it prevented him from properly alleging the elements essential to support his claim that he had been, and continued to be, a patient of the defendant doctor, the order was final and an appeal therefrom was proper. (Atkinson v. Sowersby, 165 Kan. 678, 198 P. 2d 158; Boettcher v. Criscione, 180 Kan. 39, 299 P. 2d 806.)
We have not overlooked but have disregarded some of the contentions made by the parties which may be of paramount importance after the issues are made up and the case is submitted to the trial court. We have determined only that the order sustaining the defendant’s motion to strike certain allegations of the petition was a proper exercise of the trial court’s sound judicial discretion and should be affirmed and that the order sustaining a like motion to the amended petition was error and should be reversed.
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal by the American State Bank of Oklahoma (plaintiff-appellant) from an order of the trial court dismissing its replevin action to recover an automobile upon default of installment payments. The automobile was financed by the bank in Oklahoma, but removed to the State of Kansas by the owner and sold to a bona fide purchaser who had no notice of the lien against the automobile.
The question presented on appeal is the construction of K. S. A. 84-9-103 (3) of the Uniform Commercial Code.
The facts may be briefly stated. On May 5, 1972, one Carl Ruff, an Oklahoma resident, purchased a 1972 Continental Mark IV automobile (serial number 2Y89A833786). Mr. Ruff financed this purchase by obtaining a loan from the American State Bank in Oklahoma in the amount of $8,500 in return for his promissory note in the amount of $9,777.36, which included interest, and an agreement securing the bank’s interest in the automobile. The security interest was duly perfected by filing a standard form Uniform Commercial Code financing statement with the county clerk of Tulsa County, Oklahoma.
At the time of the purchase, Mr. Ruff received a certificate of title for the automobile. However, there was no indication on the title certificate of the appellant’s security interest in the automobile. Oklahoma law does not require a notation of liens to be made on the certificate of title. 47 Okla. Stat. Anno. § 23.6 provides that on the sale or transfer of an automobile the vendor shall assign his title to the vendee “with a statement of all liens or encumbrances on said vehicle,” but the Oklahoma Supreme Court has ruled that an Oklahoma certificate of title “is not a muniment of title which establishes ownership,” and has indicated that a third party must be cautious about relying on such a certificate to show ownership. (Medico Leasing Company v. Smith, 457 P. 2d 548 [Okla. 1969]; Wren v. Bankers Investment Co., 207 Okla. 339, 249 P. 2d 712 [1952]; City Nat. Bank & Trust Co. v. Finch, 205 Okla. 340, 237 P. 2d 869 [1951]; and Adkisson v. Wattman, 202 Okla. 309, 213 P. 2d 465 [1949].)
After the purchase, but at a time not disclosed by the evidence, Ruff removed the automobile to Kansas without the bank’s knowledge. In March 1973, Ruff sold the automobile and assigned the certificate of title to Luther White (defendant-appellee). On March 8, 1973, White issued a check to the order of Ruff Tire in the amount of $2,294.41. Written in the left-hand margin of the check was the following: “Bal. paid in Full For 1972 Mark IV.” White answered in the request for admissions that at the time of the sale Ruff explained that the automobile was free of any liens; that he did not check with the county clerk of Tulsa County, Oklahoma, to see whether the bank had filed a financing statement on the automobile; however, he expected the State of Kansas to check with the appropriate authorities before issuing a new Kansas title.
Apparently Ruff continued to make payments to the appellant bank until August 1973, when he defaulted, and according to the terms of the note the entire remaining balance of $6,805.75 became due and owing.
Thereafter the bank made demands upon Ruff for payment of the note or possession of the automobile, but he has refused to do either.
On November 16, 1973, approximately eight months after the sale in Kansas, the bank instituted this action seeking to replevin the 1972 Continental Mark IV automobile.
At no time did the appellant bank perfect its security interest in Kansas, within four months as required by K. S. A. 84-9-103 (3).
After the petition, answer, request for admissions and the bank’s response thereto had been filed, the bank moved for summary judgment (K. S. A. 60-256) claiming there was no fact in dispute; that the only question remaining was a question of law; and that the appellant bank was entitled to judgment as a matter of law.
The appellee White moved for a dismissal of the action on the following grounds:
“1. Kansas should not recognize Oklahoma statutes as against the rights and privileges of Kansas citizens when such statutes are against public policy, generally oppressive, and conflict with the intent of Kansas statutes.
“2. The facts in this case fall within the exception to the comity recognition of foreign recorded security interests, because the evidence shows plaintiff had knowledge of and consented to the removal of the automobile to Kansas and failed to perfect its security interest in this state.
“3. Defendant, as a buyer in ordinary course of business, takes free and clear of a security interest created by his seller whether defendant knew of the security interest or not.”
The trial court sustained the appellee’s motion to dismiss for the reasons stated in its memorandum:
“It is found by the Court that the security interest covering the vehicle involved was legally perfected according to the statutes of the State of Oklahoma, and that K. S. A. 84-9-103 applies to this transaction. However, we must look to this transaction as a whole, and it is the finding of the Court that the failure of the plaintiff to perfect the security interest in this state within a 4-month period after the removal of the property from the State of Oklahoma requires that the motion of the defendant to dismiss be, and it is hereby, sustained.”
The pertinent portion of K. S. A. 84-9-103 (3) provides:
“If personal property other than that governed by subsections (1) and (2) is already subject to a security interest when it is brought into this state, the validity of the security interest in this state is to be determined by the law (including the conflict of laws rules) of the jurisdiction where the property was when the security interest attached. ... If the security interest was already perfected under the law of the jurisdiction where the property was when the security interest attached and before being brought into this state, the security interest continues perfected in this state for four months and also thereafter if within the four month period it is perfected in this state. The security interest may also be perfected in this state after the expiration of the four month period; in such case perfection dates from the time of perfection in this state. If the security interest was not perfected under the law of the jurisdiction where the property was when the security interest attached and before being brought into this state, it may be perfected in this state; in such case perfection dates from the time of perfection in this state.” (Emphasis added.)
Under the appellant’s construction of 84-9-103 (3), supra, if secured property is removed to this state from a jurisdiction where a valid perfected security interest exists, that security interest will be absolutely perfected in this state for a period of four months, and consequently a purchaser during the four-month period following the removal of the secured property to this state, tabes the property subject to the foreign security interest. According to the appellant this case must be remanded to the trial court for a finding of fact as to when the automobile was removed to the State of Kansas so that it can be determined whether or not the appellee purchased it within four months of its removal to this state.
The appellee’s position is that a buyer of property secured according to the laws of another state, within four months of its removal into this state, would acquire an interest junior to that of the original secured party during the four-month period; however, upon the expiration of the four-month grace period, if the out-of-state security interest has not by that time been perfected within the second state, the buyer’s junior interest matures into the superior interest.
Under the rule of comity prior to the adoption of the U. C. C., this state recognized that “where a chattel mortgage had been properly filed and thereby priority of lien preserved, upon removal of the mortgaged property to another state, it was not necessary in order to preserve the lien that the mortgage be filed in the state to which removal had been made.” (Hess-Harrington, Inc. v. State Exchange Bank, 155 Kan. 118, 122 P. 2d 739, Syl. ¶ 1; and Home Finance Corporation v. Cox, 190 Kan. 553, 376 P. 2d 884), but if the mortgagee had notice of the removal of the chattel to Kansas, he had to record here. (Home Finance Corporation v. Cox, supra.) This was in line with the generally accepted view (78 C. J. S. Sales §568, p. 281) though there were a few jurisdictions that placed the risk of loss upon the conditional vendor. Consequently, under the general rule the mortgagee’s security interest remained perfected, after removal to the second state, for an indefinite period of time and the purchaser for value without notice of the security interest was not protected. It is in this context that the promulgation of 84-9-103 (3), supra, must be examined.
The Official U. C. C. Comment is:
. . Subsection (3) proceeds on the theory that not only the secured party whose collateral has been removed but also creditors of and purchasers from the debtor in this state should be considered. The four month period is long enough for a secured party to discover in most cases that the collateral has been removed and to file in this state; thereafter, if he has not done so, his interest, although originally perfected in the state where it attached, is subject to defeat here by those persons who take priority over an unperfected security interest (see Section 9-301). Under Section 9-312 (5) the holder of a perfected conflicting security interest is such a person even though during the four month period the conflicting interest was junior. Compare the situation arising under Section 9-403 (2) when a filing lapses.”
The following Kansas Comments are consistent with the Official Comment:
. If the security interest was perfected where the property was located when the security interested attached, it remained perfected in this state for four months after the collateral was brought here. Thereafter, the secured party had to perfect his interest in Kansas. If not perfected before the expiration of the four-month period, the subsequent perfection of a security interest in Kansas dated from the time of perfection in this state; there was no ‘relation back.’ Kansas has held a chattel mortgage perfected in the state where the property was located and the mortgage executed would be recognized (National Bank v. Massey, 48 K. 762, 30 P. 124 (1892)), but if the mortgagee had notice of the removal of the chattel to Kansas, he had to record here. Home Finance Corp. v. Cox, 190 K. 553, 376 P. 2d 884 (1962). The Code assumes the secured party will or should learn of removal of the property within four months, and must then perfect his interest. This policy may better protect creditors and purchasers in this state than did the prior Kansas law.”
One of the earlier decisions construing 84-9-103 (3), supra, is Churchill Motors v. Lohman, Inc., 16 A. D. 2d 560, 229 N. Y. S. 2d 570 (1962). There a security interest in an automobile was perfected according to Rhode Island law by execution of the sales contract and delivery of the automobile (filing in Rhode Island was unnecessary). Thereafter, the automobile was removed to Pennsylvania where it was sold within four months. The New York Supreme Court made the following observations concerning the policy behind 84-9-103 ( 3):
“As will be seen upon a reading of the quoted subsection, the draftsmen of the code decided that the conditional vendor ought to try to keep track of the location of the property covered by the conditional sale agreement and, if he discovered that the property had been taken to another State, he ought to take reasonably prompt steps to give notice to the public of his interest in accordance with the law of that State. On the other hand, subsequent purchasers and lienors in the State to which the property had been taken would have to take the risk of there being an outstanding security interest in the State from which the property had come, if they purchased the property or acquired a lien upon it shortly after it had been brought into the State and before the vendor had had an opportunity to discover the facts and to perfect his security interest in accordance with the law of the State. A four-month period was chosen as a reasonable period within which the vendor ought to be able to locate the property and to perfect his security interest in the State to which the property had been taken. . . .” (pp. 562, 563.)
It was argued in Churchill, as the appellee argues in the instant case, that if the conditional vendor fails to' file a security interest within four months after the removal, his security interest would lapse and become subordinate to the interest of an individual who purchased the automobile within the four-month period. But the court in Churchill responded:
. . Under the provisions of the Uniform Commercial Code, the conditional vendor’s interest continued to be a perfected interest for four months. At the end of that period, it ceased to be a perfected interest and became an unperfected one but there is no provision which forfeits the four-month period of protection because of the failure to file prior to its expiration. The four-month period under the Uniform Commercial Code is thus different from the 10-day grace period allowed under the New York conditional sales law for the original filing of a conditional sale contract (Personal Property Law, § 65). Under the New York statute, if the contract is filed within 10 days, the interest of the vendor is deemed perfected from the beginning but if he fails to file within 10 days, then the security interest of the vendor remains unperfected from the time of the original sale. (See the provision for a similar 10-day grace period for filing with respect to a purchase-money security interest in subsection [2] of section 9-301 of the Uniform Commercial Code.) In contrast with this, the four-month period provided in subsection (3) of section 9-103 of the Uniform Commercial Code is not a grace period for filing; it is an absolute period of protection of the vendors security interest designed to give him adequate time to make an investigation and to locate the property. If the vendor fails to file within the four-month period, the protection of his security interest ceases upon the expiration of that period and his unperfected security interest is thereafter subject to being defeated in the same way in which any unperfected security interest may be defeated under the code. A subsequent purchaser for value without notice of the unperfected security interest would take a title superior to it (Uniform Commercial Code, §§9-301, 9-307, 1-201, subsection [9]). But a prior purchaser who had purchased during the four-month period of statutory protection is not retroactively given a superior title. He is not in the same position as a subsequent purchaser who acquired his interest after the expiration of the four-month period. . . .” (Emphasis added.) (pp. 566, 567.)
Cases in accord with Churchill’s four-month absolute period of protection interpretation include: The First Nat'l. Bank of Bay Shore v. Stamper, 93 N. J. Super. 150, 225 A. 2d 162 (1966); Community Credit Co. v. Gillham, 191 Neb. 198, 214 N. W. 2d 384 (1974); Morris v. Seattle-First Nat’l Bank, 10 Wn. App. 129, 516 P. 2d 1055 (1973); Newton-Waltham Bank v. Bergen Motors, 68 Misc. 2d 228, 327 N. Y. S. 2d 77 (1971); Pascack Valley Bank & Trust Co. v. Ritar Ford, Inc., 6 Conn. Cir. 489, 276 A. 2d 800 (1970); Al Maroone Ford v. Manheim Auto Auc., 205 Pa. Superior Ct. 154, 208 A. 2d 290 (1965); and see 42 A. L. R. 3rd 1168, 1187.
We believe the Churchill opinion reflects the proper interpretation of 84-9-103 (3), supra. Recognizing that uniformity of decisions construing the U. C. C. is as desirable as the adoption of the U. C. C. itself, we conclude that Churchill and the cases following it should control the disposition of the instant case. Under this construction, the adoption of the U. C. C. in Kansas has merely modified former substantive case law (as previously discussed) by limiting the period of time during which a foreign lienholder would have absolute priority over a Kansas purchaser to a period of four months, unless further affirmative action is taken in Kansas under the U. C. C. to perfect the security interest.
The appellee cites Vernon, Recorded Chattel Security Interests in the Conflict of Laws, 47 Iowa Law Rev. 346, 377-78 (1962); and J. White and R. Summers, Uniform Commercial Code, 848-850, § 23-18 (1972). These writers interpret 84-9-103 (3), supra, as the appellee would have it construed.
K. S. A. 84-9-103 (3) declares, with certain exceptions not applicable to the case at bar, that if personal property is already subject to a security interest when brought into this state, “the validity of the security interest in this state is to be determined by the law (including the conflict of laws rules) of the jurisdiction where the property was when the security interest attached.” It is conceded the appellant fully complied with the Oklahoma law in perfecting its security interest by filing, and that notation of the outstanding security interest on the certificate of title was unnecessary. We are therefore obligated under the statute to attribute full faith and credit to the appellant’s perfected security interest, and we may not require more from the appellant in perfecting its security interest than is required by its own state. We have construed 84-9-103 ( 3), supra, as providing four months of absolute protection, after removal from the State of Oklahoma, when the security interest was properly perfected in the original state, and there is no allowance in the statute for deviating from that rule simply because the original state did not require notation of outstanding security interests on the certificate of title. It should be noted in Churchill, supra, Rhode Island (where the security interest had been perfected) did not even require filing of the security interest, much less a notation of the outstanding security interest on the title.
The appellee calls our attention to Kansas Senate bill No. 27. It is argued this bill contains clarification of the legislative intent behind 84-9-103 (3), and that we should consider this bill in construing 84-9-103 (3) as it existed when the events giving rise to the instant case occurred.
Section 6(2) (d) of Senate bill No. 27 reads as follows:
“If goods are brought into this state while a security interest therein is perfected in any manner under the law of the jurisdiction from which the goods are removed and a certificate of title is issued by this state and the certificate does not show that the goods are subject to the security interest or that they may be subject to security interests not shown on the certificate, the security interest is subordinate to the rights of a buyer of the goods who is not in the business of selling goods of that kind to the extent that he gives value and receives delivery of the goods after issuance of the certificate and. without knowledge of the security interest.”
As of this date the bill has been passed by the legislature and approved by the governor. Section 38 provides that the Act shall take effect and be in force from and after January 1, 1976, and its publication in the statute book.
The foregoing amendment of 84-9-103 (3) is the direct result of the final report of the Review Committee for Article 9 of the Uniform Commercial Code (1971). The report contains the following comment concerning the amendment:
“F-23. The effect of lapse after four months of a security interest perfected without local filing on rights arising within the four months is not specifically covered in the present Code, but is referred to in existing Comment 7 to Section 9-103. Subparagraph (1) (d) (i) of the proposed revision makes clear that after lapse the security interest is deemed unperfected as against a person who became a purchaser after the removal. First National Bank of Bay Shore v. Stamper, 93 N. J. Super. 150, 225 A. 2d 162 (1966) held in substance that a buyer during the four month period was a converter of the car, at the suit of a bank whose security interest was perfected in the state from which the car was removed. The case entirely fails to consider the effect of the subsequent lapse of the security interest of the bank for failure to reperfect after the four months. While technically the conversion was complete at the moment of purchase, it is to be hoped that the proposed clarification of the effect of lapse will cause similar cases to be analyzed in the future in terms of priority, not of conversion. (Other aspects of the Stamper case are discussed in paragraph G-15 of this Statement).”
(Comment G-15, p. 240 of the final report discusses the applicability of 9-103 (4) to the Stamper factual situation. There is no contention 9-103 (4) is applicable to the case at bar.)
A statute does not operate retroactively, but operates prospectively, unless the intention of the legislature is clearly expressed by the statute that its provisions are to be applied retrospectively. (Allen v. City of Ogden, 210 Kan. 136, 499 P. 2d 527; and Smyth v. Adjutant General, 214 Kan. 715, 522 P. 2d 372.) Furthermore, under K. S. A. 1974 Supp. 77-201, First, the repeal of a statute does not affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed.
Having construed 84-9-103 ( 3) as allowing the appellant bank four months of absolute protection, after the removal of the auto mobile to this state, it is necessary to remand the case to the trial court for an evidentiary hearing to determine the date the automobile was removed from Oklahoma to Kansas, to ascertain whether or not the appellee acquired his interest in the automobile during the period of absolute protection.
The judgment of the lower court is reversed with directions to proceed as above indicated.
Fromme, J., not participating. | [
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|
The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in an action which was instituted by a California resident for alimony, separate maintenance and property division in the district court of Graham County, Kansas.
The underlying question is whether, on the facts and circumstances herein presented, a decree granting the wife a divorce in the State of California is entitled to full faith and credit.
Martha King, appellant herein and plaintiff below, was married to George W. King, appellee herein and defendant below. They are the same parties who appeared before this court in King v. King, 183 Kan. 406, 327 P. 2d 865. There both parties asked for a divorce and for a division of property in the district court of Graham County, Kansas. The trial court on September 24, 1957, denied a divorce and refused to make a division of the property. On appeal this court affirmed the judgment of the trial court.
On the 15th day of July, 1958, Martha, who had in the meantime moved to and had become a resident of California, filed an action in the district court of Graham County, Kansas, which is the matter here for consideration. Her petition was for alimony, separate maintenance and division of property.
Thereafter, but before any action was taken in this case, Martha filed an action for divorce in California. Service of summons in the California case was made upon George by the sheriff of Graham County, Kansas, in November, 1958. This was the equivalent of constructive service.
The next chronological event in the course of time was an answer and cross petition filed by George in the Graham County action on December 8, 1958. By his cross petition George requested a divorce from Martha.
On the 29th day of December, 1958, the California court entered a decree granting Martha a divorce by default. (Under California law the divorce decree does not become final for one year.)
On the 22nd day of January, 1959, Martha replied and answered the cross petition of George by setting forth the California divorce decree and requested the district court in Graham County to determine all property rights and indebtedness in Kansas pursuant to G. S. 1949, 60-1518.
George thereupon filed his motion to strike those portions of Martha’s answer and reply setting forth the divorce decree in California and the request for a determination of property rights and indebtedness in Kansas. The trial court pursuant to this motion struck the paragraph of Martha’s answer and reply setting forth the California divorce decree and the request for a determination of the property rights of the parties. It is from this order that Martha appeals.
In ruling upon a motion to strike, the facts alleged must be taken as true. (See, Turner v. Benton, 183 Kan. 97, 325 P. 2d 349.) Therefore, for purposes of this appeal, it must be assumed that the facts recited in the answer and reply of Martha, which were stricken by the trial court, were true — that Martha was a resident of California, that the California court had jurisdiction and duly entered a decree divorcing Martha from George on the 29th day of December, 1958.
It is clear under Kansas law that the action filed by Martha in Graham County, Kansas, pursuant to G. S. 1949, 60-1516, is an entirely different cause of action from one of divorce. (Wohlfort v. Wohlfort, 116 Kan. 154, 225, Pac. 746; Kraus v. Kraus, 171 Kan. 254, 232 P. 2d 233; Schaeffer v. Schaeffer, 175 Kan. 629, 266 P. 2d 282; and Jeffers v. Jeffers, 181 Kan. 515, 313 P. 2d 233.) Under the circumstances, Martha being a resident of California could not have filed an action for divorce in Kansas by reason of the lack of residency. (Asling v. Asling, 88 Kan. 331, 128 Pac. 185; Long v. Long, 113 Kan. 459, 214 Pac. 1116; and Wible v. Wible, 153 Kan. 428, 110 P. 2d 761.) She was free to file an action for divorce in California after she had filed her petition in Kansas for alimony, separate maintenance and division of property.
The recognition which the courts of one state can be compelled to give to a divorce decree rendered by a court of a sister state depends upon what is decided upon the subject by the Supreme Court of the United States under Article 4, Section 1 of the Constitution of the United States, providing that “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”
There are several leading cases on the question of the recognition which the Constitution demands, where the divorce decree is rendered at the domicile of one party only. (Atherton v. Atherton, [1901] 181 U. S. 155, 45 L. Ed. 794, 21 S. Ct. 544; Haddock v. Haddock, [1906] 201 U. S. 562, 50 L. Ed. 867, 26 S. Ct. 525; and Davis v. Davis, [1938] 305 U. S. 32, 83 L. Ed. 26, 59 S. Ct. 3.)
On the facts presented in the instant case Haddock v. Haddock, supra, is in point. There the parties were married in New York where both lived at the time. The husband went to Connecticut, established his domicile there, and secured a divorce in that state, the absent wife being served by publication only. Later the wife brought a separation suit against Haddock in New York. He set up, in defense, the decree he had received in Connecticut. This was rejected by the court in the New York proceedings. Upon appeal to the United States Supreme Court, it was held that there was no violation of the requirement of full faith and credit. It is •important to note the Atherton decision, decided five years earlier in 1901, reached the contrary conclusion on the ground that the divorce which was denied full faith and credit by the sister state was granted at the matrimonial domicile of the husband and wife. In the Haddock case it was not. Mr. Justice Holmes dissented in the Haddock case. He said: “I cannot see any ground for distinguishing between the extent of jurisdiction in the matrimonial domicil and that, admitted to exist to some extent, in a domicil later acquired.” He prophesied: “I think that the decision not only reverses a previous well-considered decision of this court but is likely to cause considerable disaster to innocent persons and to bastardize children hitherto supposed to be the offspring of lawful marriage.”
The Haddock decision did not decide that New York or any other state could not recognize the Connecticut decree. It was expressly said that Connecticut could divorce the husband, a citizen of Connecticut, and that decree would be effective in that state. What the court did hold was that the full faith and credit clause did not compel recognition by New York.
Actually the decisions of the state courts have not been very greatly affected by the Haddock decision. That the decree of the court at one party’s domicile should be recognized was the majority view of the state courts prior to the decision in the Haddock case, and has continued to be the prevailing doctrine since. The minority of the states which refused to recognize the foreign decree given under the same circumstances as that in the Haddock case continued to do so; It was thus a doctrine of comity in such situations and not the full faith and credit clause of the Federal Constitution which enjoined upon the several states the duty of recognizing and giving effect to the divorce decrees based upon constructive service, when the decree was obtained in conformity with the law of the state in which the judgment was rendered.
Immediately following the Haddock decision the following statute, which took effect March 21, 1907, was enacted in Kansas:
“Any judgment or decree of divorce rendered upon service by publication in any state of the United States in conformity with the law thereof shall be given full faith and credit in this state, and shall have the same force with regard to persons now or heretofore resident or hereafter to become a resident of this state as if said judgment had been rendered by a court of this state, and shall, as to the status of all persons, be treated and considered and given force the same as a judgment of the courts of this state of the date which said judgment bears.” (Laws of 1907, Ch. 184, § 1.)
The first case to be decided by the Supreme Court of this state after the passage of the above statute was McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546, wherein Mr. Justice Burch speaking for the court graphically described the effect of the Haddock decision. At page 43 of the opinion it is said:
“The decision in Haddock v. Haddock was rendered on April 12, 1906. It immediately arrested public attention throughout the nation, and, whether warranted or not, great anxiety was felt in many quarters respecting the social consequences which might follow from it. For the purpose of averting any possible disaster, due either to the decision itself or to misapprehension of its doctrine, and for the purpose of establishing the law and policy to be observed by the courts of this state, the legislature enacted the following statute, . . . [Laws of 1907, Ch. 184, § 1.]
“It is perfectly clear that this statute was intended to make the recognition and enforcement of foreign divorce decrees based upon substituted service obligatory in this state. The option left by the decision in Haddock v. Haddock to each state to give to such decrees within its own borders whatever efficacy they may be entitled to, consistent with its public policy, was exercised by the legislature, and such decrees were placed upon the same basis as the judgments of our own courts . . .” (Emphasis added.)
By the foregoing statute Kansas went far beyond all other states of the union in compelling recognition of foreign decrees of divorce based upon constructive service.
By amendment (Laws of 1935, Ch. 220, § 1) the evils which were prone to occur under the foregoing section of the statute were corrected. The amended statute, now appearing as G. S. 1949, 60-1518, provides:
“A judgment or decree of divorce rendered in any other state or territory of the United States, in conformity with the laws thereof, shall be given full faith and credit in this state; except, that in the event the defendant in such action, at the time of such judgment or decree, was á resident of this state and had not been served personally with process, or did not personally appear or defend the action in the court of such state or territory, all matters relating to alimony, and to the property rights of the parties and to the custody and maintenance of minor children of the parties, shall be subject to inquiry and determination in any proper action or proceeding brought in the courts of this state within two years after the date of the foreign judgment or decree, to the same extent as though the foreign judgment or decree had not been rendered.”
After quoting the foregoing statute in Fincham v. Fincham, 174 Kan. 199, 255 P. 2d 1018, the court stated:
“The history and purpose of this statute is well set out in an article by Hal E. Harlan, then a state senator and a member of the Judicial Council, in the Kansas Judicial Council Bulletin of April, 1934 (page 5). It is partially set out in Wear v. Wear, 130 Kan. 205, 222, 285 Pac. 606, and referred to in Kirby v. Kirby, 143 Kan. 430, 55 P. 2d 356. Under this statute it has become and is the settled policy of this state to recognize foreign decrees of divorce as being effectual to terminate the marriage relation of the parties, if such decree is procured in harmony with the statutes of the state where rendered . . (p. 207.) (Emphasis added.)
' The Haddock case has since been overruled in Williams v. North Carolina, 317 U. S. 287, 87 L. Ed. 279, 63 S. Ct. 207. See, also, the second chapter of the Williams case, 325 U. S. 226, 89 L. Ed. 1577, 65 S. Ct. 1092. This does not, however, affect our legislative history or mandate and the law in Kansas has not been changed by this subsequent decision of the United States Supreme Court, except that foreign divorce decrees in the situation of the Haddock case must now be given full faith and credit under the Federal Constitution.
It was recognized in Omer v. Omer, 108 Kan. 95, 193 Pac. 1064, and supported by ample authorities, that the pendency of an action in the court of one state is not a bar to the institution of another action between the same parties and for the same cause of action in a court of another state, nor is it the duty of the court in which the latter action is brought to stay the same pending a determination of the earlier action, even though the court in which the earlier action is brought has jurisdiction sufficient to dispose of the entire controversy.
It is settled in this jurisdiction that a divorce decree rendered in any other state or territory of the United States is res judicata as to the question of divorce in Kansas. This point of law was presented in Kirby v. Kirby, 143 Kan. 430, 55 P. 2d 356, where the court said:
“Neither is it of consequence that before the action in the supreme court of1 the District of Columbia was finally determined, an action in Kansas was filed for the same relief, in which personal service was obtained. The pend-ency of the first action was not a bar nor a cause for stay of the proceedings in this state, and had its judgment been rendered before judgment was rendered in the D. C. court, it would have been good. (Omer v. Omer, 108 Kan. 95, 193 Pac. 1064.) But the fact that an action was pending in Kansas at the time the judgment was rendered in the D. C. court did not prevent that judgment from being pleaded as res judicata in Kansas. (U. P. Rly. Co. v. Baker, 5 K. A. 253, 47 Pac. 563.) And the weight of authority in other jurisdictions is to the same eifect. In 9 R. C. L. 374 (Divorce and Separation, § 164), it is said:
“ ‘A valid decree of divorce rendered in another jurisdiction than that in which the subsequent decree is sought is a bar to the subsequent proceedings. And the general rule applies also where the decree of divorce was rendered in proceedings instituted after the proceedings were commenced in which it is sought to be availed of as a defense. Such a case is simply one of concurrent jurisdiction in the courts of two states, and the judgment or decree -first rendered dissolving the marriage relation concludes the question in the court of the other jurisdiction. The foreign decree of divorce must, however, have been a valid decree of divorce, entitled to full faith and credit in the jurisdiction in which the subsequent decree is sought.’” (p.438.) (Emphasis added.)
In Fincham v. Fincham, supra, a married couple lived in this state and had property here. After considerable litigation the wife filed a petition for divorce in this state and prior to the service of summons upon the husband, either by personal service or constructive service, the husband, who had established a residence in the State of Arkansas, filed a petition for divorce in that state where he procured a decree of divorce from his wife on constructive service in harmony with the laws of that state. The court held the Arkansas decree was entitled to full faith and credit in this state and had the effect of dissolving the marital relations between the parties, irrespective of the fact that at the time the decree of divorce was rendered in Arkansas the wife had pending in a court of this state an action for divorce and alimony.
It was also held in Willoughby v. Willoughby, 178 Kan. 62, 283 P. 2d 428, where a married couple lived in this state and had property here, that a Nevada divorce decree procured by the husband from his wife upon constructive service in harmony with the laws of that state was entitled to full faith and credit in this state insofar as it had the effect of dissolving the marital relations between the parties. The wife’s action in this state pursuant to 60-1518, supra, for alimony and a division of property empowered the trial court of this state to adjudicate alimony and property rights to the same extent as though the foreign decree had never been entered, and the court was not called upon to determine the question or the merits of the divorce.
Mindful in the instant action that Martha sought only alimony, separate maintenance and a division of property, which is an entirely different cause of action from one of divorce, the facts are analogous to those in the Fincham case.
The appellee relies on Hepner v. Hepner, 115 Kan. 647, 223 Pac. 1095, where the wife instituted an action for alimony and the husband went into Oklahoma, secured a divorce from his wife, and pleaded the Oklahoma divorce as a bar to the action for alimony. It was held the Kansas court having prior jurisdiction of an action by a wife against her husband for alimony could not be ousted of its jurisdiction over the parties and subject matter by the institution of a later action in another state by the husband against the wife for a divorce, nor because such later action proceeds to judgment by default in the husband’s favor. It was said the judgment in Oklahoma was not a bar to the wife’s prior action for alimony where the wife did nothing to abandon her right to litigate her cause to a conclusion in a court of prior jurisdiction.
When the Hepner case was decided in 1924 the court, was attempting to relax the rigor of 60-1518 as it existed prior to 1935 as construed in McCormick v. McCormick, supra. Although the Hepner opinion did not mention the statute, it brushed off the McCormick decision as not being in point because the Missouri court which granted the divorce had prior jurisdiction. After the amendment of 60-1518 in 1935, the Oklahoma decree in the Hepner case could have been given full faith and credit and the wife could also have maintained her action for alimony in Kansas. The theory upon which the Hepner case was decided has not been followed in cases involving a foreign divorce decree after the amendment of the statute. (See, Kirby v. Kirby, supra; and Fincham v. Fincham, supra.)
In conclusion we hold that the question of divorce between Martha and George is determined by the California divorce decree, if supported by evidence, it being entitled to full faith and credit, and the district court of Graham County has authority in the original action filed by Martha for alimony, separate maintenance and a division of property to hear and determine all questions as to property rights and indebtedness of the parties in Kansas pursuant to 60-1518, supra, without the filing of a new and separate petition.
In the Fincham case it was held that the wife was entitled to be heard as to her rights for alimony in any proper action or proceeding brought within two years after the decree of divorce in the Arkansas case. The court further held that her pending action for divorce and alimony was such a proper action or proceeding within the meaning of 60-1518, supra, to determine these matters, saying:-
“. . . Obviously the legislature did not pinpoint a specific procedure, no doubt for the reason that if they did so the question might arise in some other procedure than the specific one designated by the statute, in which a bad result would be obtained.” (p. 208.)
Either party may proceed under the provisions of G. S. 1949, 60-1518, where a divorce decree entered in another state is given full faith and credit and the conditions of this section of the statute are otherwise fulfilled. A proper action or proceeding in Kansas is not limited to the defendant in the foreign action. The provisions of the statute were construed in Stricklin v. Snavely, 175 Kan. 253, 262 P. 2d 823, where it was held that a wife who obtains a valid decree of divorce in conformity with the laws of another state on publication service only, in which action her husband then residing in Kansas did not personally appear or defend, is not precluded from instituting an action in Kansas to have her own individual interest in property set aside to her, where the property was accumulated by the parties during the marriage relationship as a result of their joint efforts and title thereto is held by them jointly. While the wife’s action in Kansas was not brought within the two-year limitation period in the statute, the court said she could have maintained it under the statute within the two-year period for such relief as the statute authorizes.
In the instant case the judgment of the trial court was invoked on questions of law as applied to the well-pleaded facts attacked by the motion to strike. For this purpose the well-pleaded facts alleged in Martha’s answer and reply must be taken as true and a court is not justified in reaching out to make additional facts a part of the pleadings under attack. (Wendler v. City of Great Bend, 181 Kan. 753, 316 P. 2d 265; White v. Thompson, 181 Kan. 485, 312 P. 2d 612; see, also, Whitaker v. Douglas, 177 Kan. 154, 277 P. 2d 641; Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P. 2d 731; and Wahl v. Walsh, 177 Kan. 176, 277 P. 2d 623.) An order sustaining a motion to strike is appealable as a final order if it in effect deprives the defending party of a meritorious defense which, if supported by evidence, would defeat all or part of the petitioner’s cause of action. (Boettcher v. Criscione, 180 Kan. 39, 299 P. 2d 806; Wendler v. City of Great Bend, supra; and cases cited therein.)
We therefore hold the trial court erroneously struck a meritorious defense from Martha’s answer and reply in the instant case which, if supported by evidence, would defeat the cross petition of George alleging a cause of action for divorce from Martha. This is an appealable order. (In re Estate of Reed, 157 Kan. 602, 142 P. 2d 824; Atkinson v. Sowersby, 165 Kan. 678, 198 P. 2d 158; and White v. Thompson, supra.)
The judgment of the lower court is reversed.
Parker, C. J., not participating. | [
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|
The opinion of the court was delivered by
Parker, C. J.:
This is a workmen’s compensation case in which the Commissioner during a review and modification proceeding granted claimant a modified award. Upon appeal to the district court by the respondent and insurance carrier such modified award was denied and claimant appeals.
The following detailed statement is required in order to insure a proper understanding of the appellate issues involved.
During the month of October, 1956, Douglas Wayne Smith received injuries arising out of and in the course of his employment by Perry Jones, Inc. The claim was originally heard in March, 1957, before the Commissioner in which the claimant sought an award based upon the injuries sustained. In June, 1957, the Commissioner granted an award and ordered compensation paid at the rate of $32. per week, such amount not to exceed 415 weeks and also granted a sum of $2,500 for medical expenses. Upon appeal to the district court and on September 25, 1957, judgment was rendered affirming the Commissioner’s rulings and award with the proviso that any future compensation would be subject to review and modification.
On September 27, 1957, the respondent and the insurance carrier filed an application for review and modification with the Commissioner. In substance the application alleged that the claimant had returned to full time employment; that the award was excessive and that the amount awarded claimant should be set aside and total compensation due determined. During the hearing on this application the parties stipulated that claimant had been paid 45 weeks , compensation amounting to $1,440. At the close of such hearing, the Commissioner made certain findings. Those here important read:
“In addition to the stipulations of the parties, the Commissioner finds that: (1) the claimant returned to gainful employment and was released by the doctor on July 9, 1957, which ended his temporary total disability; (2) that after July 9, 1957, the claimant, as a result of his accidental injury sustained on October 17, 1956, suffered a permanent partial disability of 20 per cent, payable at the rate of $12.70 per week for a period not to exceed a total of 415 weeks. Compensation now due and owing for 24 weeks of compensable temporary total from January 22, 1957, to July 9, 1957, in the sum of $1301.40 and 42 weeks of permanent partial at $12.70 per week to April 29, 1958, credit to be given on future compensation in the sum of $125.90 which has been paid. The balance of the compensation awarded should be paid at the rate of $12.70 per week until this award is fully paid, or until the further order of the Commissioner. ...”
The Commissioner’s order which, together with the findings, stipulation and summary of evidence was filed May 2, 1958, reads in part:
“The award of June 13, 1957, is hereby modified in favor of the claimant, Douglas- Wayne Smith, and against the respondent, Perry Jones, Inc., and the insurance carrier, Allied Mutual Casualty Company, for 24 compensable weeks of temporary total disability at $32 per week, followed by a 20 per cent permanent partial general disability with not to exceed the remaining 391 weeks at the rate of $12.70 per week, subject to review and modification as provided by law. Compensation heretofore paid in the sum of $1440 is to be deducted from the total due and owing the claimant. The balance of the compensation awarded herein is ordered paid at the rate of $12.70 per week until fully paid or until the further order of the Commissioner.”
On May 5, 1958, the respondent and the insurance carrier perfected an appeal to the district court, specifying as error the modified award as promulgated by the Commissioner.
Thereafter and following a hearing in conformity with G. S. 1957 Supp., 44-556, that tribunal announced its findings and decision and entered judgment in accord therewith.. All of these are incorporated in the journal entry of-judgment. So far as here pertinent that instrument, which is approved by counsel for the parties, reads:
“This is the second time that this case has been before the Court and this appeal results from a decision made by the Workmen’s Compensation Commissioner after a petition for re-examination and review had been heard.
“I have carefully examined the evidence given before the Workmen’s Compensation Commissioner and after consideration of all of it I have con-, eluded that the petitioner and plaintiff in this case is not entitled to any more compensation at all. I cannot believe that it is proper for a workman to draw full compensation benefits and still work on a job and draw full pay.
“It Is Therefore . .. . Adjudged and Decreed that the Award of the Workmen’s Compensation Commissioner be set aside and a further award for future compensation be denied. . . .”
Thereupon the claimant perfected the instant appeal.
In approaching what the court has determined is the all decisive question involved in this appeal it may be conceded at the outset that the rule in this jurisdiction, so often repeated as to hardly require reference to our decisions, is that it is the function of the trial court to pass upon the facts in a compensation case and that under G. S. 1957 Supp., 44-556, this Court is limited on appellate review to “questions of law” which, ordinarily in the final analysis, simply means that its duty is to determine whether the trial court’s factual findings are supported by any substantial competent evidence. And added that, in applying this rule, we have expressly held that the existence, the' extent, and the duration of an injured workman’s incapacity is a question, of fact for the trial court,to determine. For comparatively recent decisions of like import see Alexander v. Chrysler Motor Parts Corp., 167 Kan. 711, 714, 207 P. 2d 1179; Daugherty v. National Gypsum, Co., 182 Kan. 197, 204, 318 P. 2d 1012; and decisions there cited.- For'other decisions,-só numerous that they should riot be here cited, where the rule :is stated, and applied to questions of fact different than the one herein above indicated see West’s Kansas Digest,. Workmen’s Compensation, §§ 1939, 1940 & 1969. ' . - '
' Notwithstanding the foregoing; rule it does not follow that this court’s jurisdiction in compensation cases to review questions of law is limited to a review of whether the trial court’s factual findings are supported by any .substantial competent evidence. This is particularly true where it appears the findings are based on-.a pure question of law.' In that situation-the state of the evidence is of no consequence and the question of law presented on appellate review is whether the' basic premise on which the trial court founded the findings was erroneous or proper as a matter of law.
In the face of the record presented of the evidence taken before -the Commissioner at the time of the hearing on the application for modification and' review of the original award it appears that, notwithstanding the undisputed medical testimony adduced on'behalf of both the appellant and appellees discloses the appellant had sustained permanent partial general disability as a result of the injuries he had sustained, in the accident in question ranging from five - to twenty per cent and, so far as we have been able to find, reveals no other substantial evidence to' the contrary, the trial court concluded the appellant was not entitled to any compensation at all because it could not believe it was proper for a workman to draw full compensation benefits and still work on a job and draw full pray. It is settled that under the involved conditions and circumstances the review of an award, permitted by what is now G. S. 1957- Supp'., 44-528, does not authorize a relitigation of the question whether the employee’s injuries were incurred under such circumstances as to make the employer liable (Falcone v. Hamilton Coal & Mercantile Co., 122 Kan. 187, 250 Pac. 1068; Brewington v. Western Union, 163 Kan. 534, 538, 183 P. 2d 872). Hence, we must assume the district court; held (1) that, even though'the undisputed evidence disclosed the appellant had sustained some permanent partial .general disability as a result of the' injuries received in the involved accident, he was not entitled to an award' for such disability be cause, sometime after sustaining those injuries, he had, as disclosed hy other substantial competent' eyidence, gone back to similar work on other jobs at a rate of pay equal to that he was receiving .froip appellee, Perry Jones,-InqÍ3-, at the time, of the accident; and '(2) that, under such circumstances, he was precluded as a matter of law from drawing full pay for permanent partial general disability benefits under the Workmens Compensation Act.
Thus we come to the all decisive question involved in this appeal. Did the trial court err in its decision wherein it held the appellant is not entitled to any more compensation at all because it did not believe it is proper for a workman to draw full compensation benefits and still work on a job and draw full pay? This question, in our opinion, presents purely a question of law which, under the provisions of G. S. 1957 Supp., 44-556, is within our jurisdiction. . -.
Conceding there is some lack of uniformity in our reported cases touching on the point now under consideration, we believe the question just posed is answered in our recent decision of Daugherty v. National Gypsum Co., 182 Kan. 197, 318 P. 2d 1012, where it is said and held:
“. . . Permanent partial disability of an injured workman based upon substantial medical testimony is compensable notwithstanding he may earn as much or more after his injury in the same or other employment. The rule is based upon the fact that partial general body disability is a definite loss to the injured workman, and is a deterrent to his obtaining and retaining work in the open labor market (Beal v. El Dorado Refining Co., supra [132 Kan. 666, 672, 296 Pac. 723]; McGhee v, Sinclair Refining Co., supra [146 Kan. 653, 658, 659, 73 P. 2d 39]; Rupp v. Jacobs, supra [149 Kan. 712, 717, 88 P. 2d 1102]; Davis v. Braun, supra [170 Kan. 177, 183 223 P. 2d 958]).” (p. 203.)
Application of the rule announced in Daugherty v. National Gypsum Co., supra, to which we adhere, means the all decisive question heretofore stated must be given an affirmative answer, as appellant contends, and we so hold.
It follows the judgment must be reversed and the cause remanded for final disposition with directions to proceed in accord with the provisions of the Workmens Compensation Act and the conclusions herein announced. 1
In view of such conclusions there is no occasion for discussion or disposition of other contentions advanced by appellant.'
The judgment is reversed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is a highway condemnation appeal.
The facts and proceedings, as disclosed by the record presented, giving rise to the appeal are not only informative but important to its decision and should be detailed.
Early in 1958 the State Highway Commission instituted a proceeding, under G. S. 1949, 26-101 and G. S. 1957 Supp., 26-102, to condemn 38.19 acres of land located in Harvey County, on which there was a growing crop of wheat, for the acquisition of a highway right of way.
At the time of the institution of the proceeding several parties had an interest in the property.
Under the terms of a valid and existing divorce decree Orlando and Esther Andres held legal title to the land, their interest being 60% and 40%, respectively, in the event such land was condemned; each also owned an undivided interest in the growing crop of wheat.
Willis Andres, a brother of Orlando, was farming the land and, under the terms of an existing lease, owned a % interest in the growing crop.
After giving proper notice to interested parties the appointed appraisers made their appraisement of the involved real estate and filed their report thereof on April 29, 1958, with the clerk of the district court. Such report, omitting a description of the real estate and other language of no importance thereto, reads:
“Orlando L. Andres, 101 N. Broadview, Wichita, Kansas; Esther Andres, 127 S. Pine Street, Newton, Kansas; subject to the tenancy of Willis G. Andres, RFD 5, Newton, Kansas.
“Appraisement :
“* Land Taken $20,240.70
“Total $20,240.70
“* Includes crop loss of $1145.70 for wheat to be impounded and payable only in the event the crop is not harvested. If harvested-this amount to be returned to the State Highway Commission.”
On April 29, 1958, the full amount of the appraisement was paid' into the hands of the clerk of the district court of Harvey County by the condemner.
On May 3, 1958, the condemner filed a motion, seeking an order of the court to impound funds then on deposit for the other tracts (also listed in the appraisers’ report but not here involved) and “Tract No. 1 — Orlando L. Andres, et al, Wheat Crop, $1145.70.” Among other things such motion stated: “ — that impounding of the stated amounts is necessary to secure the rights of the State Highway Commission in the funds so designated as awards for wheat — .”
On May 26, 1958, upon motion of the condemner, the court made the following order:
“Tract No. 1: Wheat award of $1145.70 as shown in Appraisers’ Report should be and is released to the owners and tenant as therein named, and said ownership of said crop on said tract is decreed in the State Highway Commission, petitioner, in said action.”
We pause here to note that much of what has been heretofore related has reference to what was done in the first stages of the condemnation proceeding and hence, although required for factual and certain post trial purposes, is of little importance to the trial in district court wherein the question of the sufficiency of the appraisers’ award was determined.
In this jurisdiction it is well-established no action is pending in a condemnation matter until an appeal has been taken from the appraisers’ award; and that until that time it is not a judicial proceeding but merely an inquisition (State Highway Commission v. Griffin, 132 Kan. 153, 155, 294 Pac. 872; Glover v. State Highway Comm., 147 Kan. 279, 286, 77 P. 2d 189; State v. Boicourt Hunting Ass’n., 177 Kan. 637, 644, 282 P. 2d 395; Kansas Homes Development Co. v. Kansas Turnpike Authority, 181 Kan. 925, Syl. ¶ 1, 317 P. 2d 794; Smith v. Kansas Turnpike Authority, 183 Kan. 158, 159, 325 P. 2d 63, citing cases).
The effect of taking an appeal, pursuant to the provisions of 26-102, supra, is also settled. See Moore v. Kansas Turnpike Authority, 181 Kan. 840, 317 P. 2d 384, which holds:
“Following Federal Land Bank v. State Highway Comm., 150 Kan. 187, 92 P. 2d 72, whenever, under Laws 1937, ch. 226 § 1 (G. S. 1955 Supp., 26-102 [G. S. 1957 Supp., 26-102]), an appeal is taken to the district court, either by the petitioner or by the landowner or by a lien holder from an appraisement made in proceedings in eminent domain had under G. S. 1949, 26-101, et seq., the effect is to bring to the district court in its entirety the question of the sufficiency of the award, and the trial of that issue in the district court is conclusive on all of the parties, subject only to their right of appeal to the supreme court.” (Syl. ¶ 2.)
And page 929 of the opinion in Kansas Homes Development Co. v. Kansas Turnpike Authority, supra, where it is said:
“. . . The question of the sufficiency of the award is before the district court on appeal and all parties having an interest in the land, including the district as in the instant case, should assert their interest in the action pending in the district court, and their rights, if any, may be established in that action. (Moore v. Kansas Turnpike Authority, supra; Collingwood v. Kansas Turnpike Authority, [181 Kan. 838, 317 P. 2d 400] supra; Jenkins v. Kansas Turnpike Authority, [181 Kan. 862, 317 P. 2d 401] supra.)
The status of an appeal and the manner in which it shall be tried when an interested party appeals from an award of the appraisers in a condemnation proceeding, such as is here involved, is equally well-established. See 26-102, supra, which expressly directs, and Glover v. State Highway Comm., 282, supra, and Federal Land Bank v. State Highway Comm., 150 Kan. 187, 92 P. 2d 72, which hold, that when a written notice of appeal is filed with the clerk of the district court “an action shall be docketed and tried the same as other actions.”
On May 28, 1958, Orlando filed a notice of appeal from the April 29 appraisal of Tract 1, “in which report damages were allowed in the amount of $19,095.00 for the taking of the above described real estate for public use.” This appeal was docketed in the district court as case No. 13,745.
On the same date Esther filed a separate notice of appeal which according to the counter abstract, appears to have recited she was appealing from the appraisal of Tract No. 1 awarding damages for “Land taken (including crop loss of $1145.70 for wheat) $20,-240.70.” Her appeal was docketed in district court as case No. 13,753.
From the same source it appears that on June 11, 1958, which, it is to be noted, was after each of the above-mentioned appeals had acquired the legal status of an action within the meaning of that term as used in the statute (26-102) and the decisions last cited, the district court made an order of distribution as to Tract 1, wherein it directed that out of the total amount paid in by the condemner, pursuant to the appraisers’ award, the sum of $1145.70, allowed by the appraisers for the wheat crop, be paid 2/3 to the tenant (Willis Andres) and 1/6 to Orlando and 1/6 to Esther, and the balance of such award, amounting to $19,095.00, be divided and paid 60% to Orlando and 40% to Esther, as per the divorce decree. It further appears payments were made to the respective parties in accord with this order. The record fails to disclose that any objections, either as to form or substance, were made to this order and the condemner makes no claim of error with respect thereto.
On November 6, 1958, the condemner moved to consolidate the separately docketed appeals of Orlando and Esther under 26-101, supra, and the case of Moore v. Kansas Turnpike Authority, supra. This motion was granted and such appeals were properly consolidated for trial (See Moore v. Kansas Turnpike Authority, Syl. ¶ 1, supra).
On November 19, 1958, after the call of the consolidated appeals for jury trial, certain matters with respect to the cause were discussed in open court in the presence and hearing of the prospective jurors. At that time counsel for Esther moved to dismiss her appeal, “with reference to the crop — the crop only; the crop damage awarded — leaving the only issue the value of the land taken.” He then inquired “Is that correct?” Counsel for Orlando replied “Yes, sir.” Counsel for the condemner, who were present and to whom the inquiry of counsel for Esther had also been directed, made no response. The court then said “Very well Gentlemen.” Thereupon all parties having announced ready for trial, a jury of twelve was examined, empanelled and sworn to hear the cause.
It is neither necessary nor required that we labor at any length the opening statements, the evidence adduced or the instructions submitted to the jury during the trial. However, for purpose of disclosing the theory on which the cause was tried and submitted to that body it may be said:
That with respect to the opening statements and the evidence the landowners’ counter abstract contains certain statements which, without denial on the part of the condemner, read:
“There was no mention of growing crops in the opening statement^ of the landowners or Condemnor. The Landowners expert witnesses made no mention of the growing wheat on said land on May 21, 1958, and testified that the best use to which the land was adaptable was industrial or commercial, gave their reasons and their opinions as to value.
“The Condemnor’s expert witnesses, in stressing their opinion that farming was the best use to which the land was adapted, made mention that there was a growing crop on said land on the date of taking, but never attempted to place a dollar value on said crop. Each of condemnor’s witnesses stated their opinion as to the per acre value of said land.”
And that our independent examination of the instructions leads to the inescapable conclusion, the jury was instructed, in accord with the trial court’s theory that the question of the value of the wheat crop was not an issue in the case, in such manner as to lead it to believe its obligation was to determine the value of the land actually appropriated and taken for highway purposes, without giving any consideration whatsoever to the value of the wheat crop growing on such land at the time it was taken and/or appropriated by the condemner.
That the case was tried and determined on the theory just mentioned is evidenced by the verdict submitted by the court and • returned by the jury on November 21, 1958, which reads:
“We, the jury empanelled and sworn in the above entitled case, do upon our oaths find for the appellants in the sum of $631 50/100 per acre.” (Emphasis supplied.)
In this connection we note that, since they were the only persons appealing from the appraisement, it must be assumed the term “appellants,” as used in the verdict, is limited to Orlando and Esther as the owners of the land.
On the same day the verdict was returned the trial court, after accepting, approving and making it a part of its judgment, discharged the jury. Then, following a request by the landowners for a computation of the amount of the judgment, it found in substance:
That the 38.19 acres of land was condemned by the Commission, which tract was owned on the date of appropriation by the appellants, Orlando and Esther.
That the appraisers appointed to appraise the land awarded the appellant landowners the sum of $19,095.00 for the land taken.
That the verdict for the taking of the 38.19 acres of land was in the amount of $24,116.98, of which $19,095.00 had been paid, leaving a balance of $5,021.98, for which sum appellants, Orlando and Esther, were entitled to judgment.
Thereupon, and based on such findings, the trial court rendered the following judgment:
“It Is Therefore Considered, Ordered, Adjudged and Decreed on this 21st day of November, 1958, that the appellants, Orlando L. Andres and Esther J. Andres, have judgment against the State Highway Commission for the sum of $24,116.98 for the 38.19 acres of land taken by the said State Highway Commission from appellants, of which amount $19,095.00 has been paid, leaving a balance due of $5,021.98.”
The day after rendition of the judgment the condemner filled a motion for a new trial. Two days later it withdrew such motion. The result of the action last indicated is that trial errors are not subject to review in this appeal. See Andrews v. Hein, 183 Kan. 751, 753, and cases there cited, 332 P. 2d 278. See, also, Atkinson v. State Highway Commission, 184 Kan. 658, 662, 339 P. 2d 334.
On January 19,1959, the Commission perfected the instant appeal under a notice which, for present purposes, may be said to have stated it was appealing from the judgment made and entered by the trial court on November 21, 1958, wherein the trial court found “(1) that the Commissioners awarded $19,095.00 for the value of the land taken; and (2) that only the sum of $19,095.00 has been paid leaving a balance of $5,021.98 unpaid; and wherein judgment in favor of said plaintiffs in the sum of $5,021.98 was rendered by said Court and wherein the amount of said judgment was incorrectly computed by said Court upon the verdict.”
Before turning to questions raised on appeal it should be stated its obligation to the Bench and Bar impels the court to point out that its action in setting forth the facts at length in this opinion is due to a desire on its part to insure a proper understanding of what the case is about and is in no sense to .be construed as indicating a view the procedure of record in either the initiatory proceeding or in the trial of the action is to be considered as a model to be followed in future eminent domain cases.
The first contention advanced by appellant is that the trial court erred in not taking judicial notice at the time of entering judgment that the original award of the appraisers was in the sum of $20,-240.70 for the value of appellees’ land taken in this appeal.
In approaching this contention it may be conceded, at the outset, that in the post trial proceeding required for the trial court to render judgment on the verdict for the proper amount due, where— as here — payments had been paid into court by the condemning authority, pursuant to 26-102, supra, the court should look to the record in order to determine the amount previously paid in by the condemner, as well as the purpose and/or purposes for which it was paid in and disbursed to the parties. However, it does not follow, as appellant would seem to suggest, that in that proceeding the court was limited to consideration of the award or any particular portion thereof in determining the amount for which its judgment was to be rendered. In its determination of that question it had the right to look at the entire award and all other portions of the record in the inquest proceeding that might throw light on that subject. Moreover, it had the right to take into consideration the purposes for which amounts paid in had been disbursed, pursuant to its orders, without objection, after the appeals from the award had acquired the legal status of an action.
Turning to the record as presented we find (1) the appraisement, which includes crop loss of $1,145.70 for wheat to be impounded; (2) the condemner’s motion filed in the inquest proceeding, requesting that the $1,145.70 for the wheat crop be impounded and stating that the impounding of such amount was necessary to secure the rights of the Commission in funds so designated as awards for wheat; (3) the court’s inquest order of May 26, 1958, based on motion of the condemner, stating that the wheat award of $1,145.70, as shown in the appraisers’ report, should be and is released to owners and tenant therein named, and the ownership of the crop on said tract is decreed in the petitioner, Commission; (4) the trial court’s order of June 11, 1958, directing that out of the total amount paid in by the condemner the sum of $1,145.70, allowed by the appraisers for the wheat crop, be paid 2/3 to the tenant (Willis Andres) and 1/6 to Orlando and 1/6 to Esther and the balance of such award amounting to $19,095.00 be divided .and paid 60% to Orlando and 40% to Esther; (5) that payments were made to the respective parties in accord with such order without objection or claim that the order was erroneous; and (6) that on the trial of the action in district court the case was tried and submitted on the theory the wheat crop on the land appropriated had been condemned and paid for, as separate and distinct from the land itself, and was not involved in the action.
Under the foregoing conditions and circumstances, and others related in the opinion, we do not believe it can be successfully argued that the trial court erred in the post trial proceeding wherein it held, in substance, that the appraisers’ award was to be construed as awarding the holders of the legal title to the land involved the sum of $19,095.00 for the land and the landowners and the tenant the sum of $1,145.70 for the growing wheat crop. Of a certainty, when viewed in the light of all such conditions and circumstances, it cannot be said the appellant has made it affirmatively appear that portion of its judgment was erroneous. In that situation the established rule (See e. g., State, ex rel., v. Henderson, 179 Kan. 142, 292 P. 2d 718), that a presumption of validity attaches to a judgment of the district court until the contrary is shown, and before this court will set aside a judgment it must affirmatively be made to appear by an appellant that the judgment is erroneous, has application. It follows the first contention cannot be upheld.
Appellant’s second contention is that the trial court erred in rendering a judgment which reduced the original award of the appraisers by an amount which represented crop damage, when the jury’s verdict, based on the evidence and instructions at a trial de novo encompassed all of the damages the appellees had suffered, including the crop damage. What has been heretofore stated and held establishes that the two basic premises on which appellant founds this Hydra-headed contention are fallacious, hence it requires no further discussion.
The third contention presented and argued is that the trial court erred in entering a judgment altering the jury’s verdict. The short and simple answer thereto is that in the post trial proceeding, to which we have heretofore referred, the court gave full weight to the verdict and merely determined the amount due and payable to the appellees under its terms, after giving appellant credit for the amount it found had been theretofore paid in and disbursed on the land to which appellant had acquired title and possession under and by virtue of the condemnation proceeding.
In conclusion it should be stated we note, but do not pass upon, portions of the record and contentions made by the parties regarding appellant’s motion for judgment upon the general verdict, filed three days after the judgment had been rendered; and its motion for additional time to file objections to the journal entry and to defer consideration of such journal entry, filed six days after that instrument, signed by the trial judge and approved by counsel for the appellees, had been filed in the office of the clerk of the district court, allegedly in violation of Rule 49 of this court relating to district courts. All parties concede neither motion was ever ruled upon by the district court. In that situation it suffices to say the merits of the motions, although interesting from an academic standpoint, have no place in this appeal and that questions raised by the parties with respect thereto present no issues which are subject to appellate review.
The judgment is affirmed.
Schroeder, J., not participating. | [
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The opinion of the court was delivered by
Parker, C. J.:
This was an action to recover money, alleged to be due and payable under the terms of a written contract. Defendants prevailed and the plaintiff appeals.
On November 7, 1951, the J. R. Watkins Company of Winona, Minnesota, entered into an agreement with Shirley Hanson of St. John, Kansas, as purchaser, providing that such purchaser was to buy goods, manufactured and/or sold by the company, for purposes of sale in the locality in which she was then engaged, or intended to engage, in the business of selling such products. At the time of the execution of the purchase agreement there was attached thereto a surety agreement, executed by Roy Wilson and Guy Carter, as sureties, whereby such sureties unconditionally promised, agreed and guaranteed to stand good for the products Watkins sold to Hanson and for which Hanson failed to pay, in accord with the terms of the purchase agreement.
In passing it is to be noted the contract between the company and'Hanson contained a provision that upon termination of their business relations the company would repurchase from Hanson any products she had on hand and that upon receipt thereof the company was to credit her account with the reasonable value of all products returned therefore.
On June 13, 1956, the company commenced an action against Hanson, and Wilson and Carter, as sureties, by filing a petition in the district court, alleging in substance that Hanson had failed to pay for goods purchased and received from the company and that by reason for her failure to do so she and both sureties were indebted to the company in the sum of $925.18.
In response to the petition the parties defendant filed a verified answer wherein they denied generally any liability whatsoever on the account sued on and, among other things, alleged as their principal defense that, at the termination of their business relationship, the defendant Hanson had returned to the company previously purchased products sufficient to more than satisfy any balance owing upon her account.
Sometime after the filing of the answer one of the sureties (Guy Carter) died. Thereupon, in open court,- plaintiff dismissed its action as against such surety. Thereafter, and with issues joined as related, the cause came on for trial by jury in the district court.
At the trial plaintiff’s evidence consisted of lengthy depositions of two witnesses who described in detail the transactions between the company and Hanson; the character of the goods, wares and merchandise sold to Hanson; the amount due for such products; the payments made thereon; and the amounts to which it claimed Hanson was entitled to credit for returned merchandise. In the main defendants’ proof consisted of evidence showing the products returned by Hanson to the company and the amounts which should have been credited to her account by reason thereof.
With respect to evidence adduced by the parties relating to products returned by Hanson, for which she was entitled to credit, it may be said, it appears from an incomplete and confusing record, that the testimony was highly conflicting but nevertheless sufficient to go to the jury. On the one hand the company’s evidence was to the effect there were only two shipments of merchandise returned by Hanson and that it had given her all credits to which she was entitled under the terms of the contract. On the other the defendants’ evidence was to the effect that the company had failed to give Hanson full credit for all merchandise returned in the -two shipments admittedly received; that Hanson had made a third shipment of merchandise to the company at Memphis, Tennessee, for which she had not been given or allowed any credit; and that had the company allowed her full credit for all merchandise returned, at its fair and reasonable value as fixed by the contract, such merchandise would have more than satisfied the balance claimed by the company against the defendants.
At the close of all evidence the trial court instructed the jury and then submitted the cause to it for its decision, along with two special interrogatories. In dire time the jury returned a general verdict in favor of the defendants along with its answers to the submitted special questions. In the answer to question No. 1 it found that Hanson had returned goods (describing them) to the company’s place of business in Memphis, Tennessee, on or about January 10, 1954, and, in tire answer to question No. 2, it found the value of the goods, returned by such defendants to that location, amounted to $708.43.
Following the return of the verdict and answers to special questions the plaintiff filed a motion for a new trial. Thereafter that motion was overruled and judgment was rendered upon the verdict in favor of defendants and against the plaintiff. This appeal followed.
At the outset we pause to point out that appellant’s assignments of error are limited to alleged trial errors and his contentions with respect thereto will be given consideration without regard to the order in which they are made in its brief.
One specification of error is that appellant was entitled to a new trial because of misconduct on the part of counsel for appellees in making untrue and prejudicial remarks in final argument to the-jury. The record of the proceedings in the court below fails to disclose (1) the nature of the argument complained of; (2) any objection to argument by counsel for appellees at the time it was made; and (3) any request to the trial court for a ruling on such argument or an instruction to the jury concerning it. Under such circumstances appellant’s position on this point lacks merit and cannot be upheld. The established rule is that misconduct of counsel in argument to the jury is not available as a ground for the sustaining of a motion for a new trial or the reversal of a judgment where no objection was made to it and no request was made for a ruling thereon, or for an instruction to the jury concerning it. (Mai v. City of Garden City, 177 Kan. 179, 277 P. 2d 636; Shreve v. Kansas Turnpike Authority, 181 Kan. 406, 312 P. 2d 595.) The fact counsel for appellant has seen fit to include in his brief an affidavit setting forth his version of the statements complained of affords no basis whatsoever for a contrary conclusion. On appeal from an order overruling a motion for a new trial an appellate court is limited to questions raised at the time it was presented in the court below.
Misconduct on the part of the trial judge is also assigned as error. The abstract contains no reference to the misconduct complained of and faffs to disclose that appellant took exception thereto during the trial or called it to the attention of the trial court on the hearing of the motion for a new trial. In that situation, under our decisions (See, e. g., American Automobile Ins. Co. v. Clark, 122 Kan. 445, 252 Pac. 215; Sawtelle v. Cosden Oil & Gas Co., 128 Kan. 220, 228, 277 Pac. 45; Ghumm v. Josch, 133 Kan. 16, 298 Pac. 751; Hill v. Southern Kansas Stage Lines, 143 Kan. 44, 53 P. 2d 923; Tovey v. Geiser, 150 Kan. 149, 159, 160, 92 P. 2d 3; and Colin v. DeCoursey Cream Co., 162 Kan. 683, 689, 178 P. 2d 690), this claim of error is not subject to appellate review.
Another claim of error is that the trial court erred in admitting testimony of the witness, Shirley Hanson, into the record, which was not supported by competent evidence, particularly defendants’ (appellees’) Exhibit “A.” A careful and extended examination of the abstract which, under the rules of this court appellant was required to print in such form as to reproduce portions of the record necessary to read in order to arrive at a full understanding of the questions presented for review (Watkins v. Layton, 182 Kan. 702, 709, 324 P. 2d 130), fails to disclose the witness Hanson’s evidence or the defendants’ (appellees’) Exhibit “A.” Moreover there is nothing in the abstract to even indicate, let alone warrant a conclusion, that error in the admission of this evidence was presented to the trial court as a ground for the granting of the motion for a new trial. Under such conditions there are at least two rules which preclude appellate review of the claim of error now under consideration. One is to be found in Watkins v. Layton, supra, which holds that on appeal to this court error is never presumed and it is incumbent upon the party complaining to establish affirmatively that error was committed. The other appears in In re Estate of Jones, 174 Kan. 506, 257 P. 2d 116, where, in disposing of a somewhat similar claim with respect to error in admission of evidence (see pages 514 and 515 of the opinion), it is held that when it does not affirmatively appear that a question raised on appeal was presented to and determined by the trial court, this court does not consider it on review. See, also, Holton v. Holton, 172 Kan. 681 (Syl. ¶ 2), 243 P. 2d 222.
It is also urged that the trial court erred in preventing the appellant from reading into the evidence before the jury some twenty pages of the deposition of witness Boalt, a Vice President of the company. The record presented is wholly insufficient to permit an adequate review or discussion of this claim of error and it suffices to say that what we find there fails to affirmatively establish error on the part of the trial court in excluding the evidence complained of.
Directing our attention to the fact that in returning its general verdict the jury not only made a general finding in favor of the appellees but added thereto the words “Not Guilty,” and conceding it made no objection to such verdict at the time of its return or until after the jury had been discharged, appellant contends that the addition of such words must be regarded as nullifying the verdict. Long ago that question was answered and decided, contrary to ap pellant’s position, in Hanson v. Kendt, 94 Kan. 310, 146 Pac. 1190. Moreover this court is committed to the rule that, absent any objections to a verdict until after.the jury is discharged, a litigant is deemed to have waived any objections he might have thereto and cannot urge them for the first time upon a motion for a new trial or on appeal. See Banbery v. Lewis, 173 Kan. 59, 69, 244 P. 2d 202, and authorities there cited.
Appellant’s final claim of error is that the trial court erred in giving instruction No. 4 which, although it is not set forth in the abstract of record, we shall quote from its brief. It reads:
“Instruction No. 4: you are instructed that the defendant Roy Wilson would not be liable under his surety agreement for any merchandise purchased by Shirley Hanson from Herbert Coleman widow, nor the cost of any insurance by Shirley Hanson, and should you find that the defendant Shirley Hanson is indebted to the plaintiff company upon the accounts sued upon in this action, your verdict as to the liability of defendant Roy Wilson would be $220.74 less than that of the defendant Shirley Hanson.”
One answer to this claim is that no objection was made to the foregoing instruction when given and that under the existing circumstances it became the law of the case. See Fisher v. Central Surety & Ins. Corp., 149 Kan. 38, 43, 86 P. 2d 583; Montague v. Burgerhoff, 152 Kan. 124, 128, 102 P. 2d 1031; Coryell v. Edens, 158 Kan. 771, 772, 150 P. 2d 341; Ehrhart v. Spencer, 175 Kan. 227, 234, 263 P. 2d 246, and numerous decisions cited in West’s Kansas Digest, Appeal & Error, § 215; Hatcher’s Kansas Digest [Rev. Ed.], Appeal & Error, §§ 344, 345. Even so, we are not disposed to decide this claim of error entirely on that basis. It will be nóted the general verdict was returned in favor of the principal (Hanson) as well as the surety (Wilson). Moreover it goes without saying, that if Hanson had paid her account, as the jury found, there could be no liability on the part of the surety. Thus it appears we need not labor questions advanced by appellant touching error in the instruction. Assuming, without deciding, they have merit does not mean that appellant sustained any prejudice by the giving thereof. Indeed, as we have pointed out, appellant sustained no prejudice therefrom. It follows error, if any, in submitting such instruction does not require the granting of a new trial and affords no sound ground for disturbing the judgment. Under our statute (G. S. 1949, 60-3317) error complained of which does not prejudice the substantial rights of a party affords no sound basis for the reversal of a judgment and must be disregarded.-
Having determined all- issues o£ importance raised on appeal we find nothing in them or in arguments advanced in their support to warrant or permit a conclusion the trial court erred in overruling the motion for a new trial or in rendering judgment against the appellant in conformity with the verdict.
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The opinion of the court was delivered by
Foth, C.:
This appeal involves the “certificate of need” provisions of the Regional Health Programs Act, K. S. A. 65-2a01 et seq. That act provides, among other things, that any person proposing to construct a new hospital to be licensed under the state’s health laws must first secure a certificate of need (65-2a09). Such a certificate may be issued by either a regional “planning agency” established or designated under the act, or by an “appeals panel” on appeal from the action of a planning agency (65-2a06). Either the applicant for the certificate of need or any other health facility which believes its interests may be adversely affected by the decision of the appeals panel may appeal the decision of that body to the district court. (Ibid.)
The applicant for a certificate of need in this case was Extendicare, Inc., a Delaware corporation authorized to do business in this state, with headquarters in Louisville, Kentucky. Its stock is listed on the New York Stock Exchange. During the course of this litigation its name was changed to Humana, Inc., but it will be referred to herein as “Extendicare.” It sought a certificate of need to build a 400 bed proprietary hospital in Overland Park, at 105th Street and Quivira Road.
Opposing the application were the Olathe Hospital Foundation, Inc., commonly known as the Olathe Community Hospital, and Shawnee Mission Medical Center, Inc. Roth opponents are nonprofit corporations operating hospitals in Johnson county, and neither welcomed the proposed arrival of a stranger to be located about halfway between them.
The procedure employed in passing on Extendicare’s application will be discussed later at appropriate length. Highly summarized: The application was filed on November 10, 1972. The regional planning agency to which it was entrusted was the Mid-America Comprehensive Health Planning Agency (MACHPA), a nonprofit Missouri corporation designated by the Kansas state board of health as the planning agency for the counties of Johnson, Wyandotte and Leavenworth. It also serves as the Missouri planning agency for the counties of Jackson, Clay, Ray, Platte and Cass. MACHPA disapproved the application on March 28, 1973. Extendicare promptly appealed, and an appeals panel was convened. On May 16, 1973, that panel unanimously voted to grant the certificate. The Olathe Community Hospital and the Shawnee Mission Medical Center each appealed to the Johnson county district court, where the appeals were consolidated. On February 25, 1974, that court entered a memorandum opinion and order upholding the decision of the appeals panel, and finding independently that a certificate of need should be granted. The Olathe and Shawnee Mission hospitals have appealed to this court.
We are met at the outset by Extendicare’s motion to dismiss the appeal for lack of jurisdiction. The motion is based on the concept that the certificate of need legislation is an administrative enactment complete unto itself. It provides for an appeal to the district court, but makes no mention of an appeal to this court. In support Extendicare cites a number of cases where the legislature prescribed judicial review of administrative decisions by the district court but made no provision for review by this court, and we held that jurisdiction here was lacking. The leading cases are Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233, involving the workmen’s compensation act prior to 1929, and National Bank of Topeka v. State, 146 Kan. 97, 68 P. 2d 1076, involving inheritance tax orders. These, and nearly all other cases cited by Extendicare in support of its motion, were decided prior to the 1964 effective date of our present code of civil procedure. The only cited case decided under our present code is In re Waterman, 212 Kan. 826, 512 P. 2d 466. We there held that in the absence of statutory authorization the state could not appeal to the district court from an order of the juvenile court refusing to waive jurisdiction over a juvenile. Since the district court had no jurisdiction of the purported appeal, this court likewise had no jurisdiction of an appeal from the district court. We cited Norman and National Bank, but only by way of analogy for the proposition that the right to any appeal is purely a matter of statute.
The present statute conferring appellate jurisdiction on the courts generally is K. S. A. 60-2101. Subsection (a) provides that “[a] judgment rendered or final order made by a court or any other tribunal, board or officer exercising judicial or quasi-judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified by the district court.” If no other means for taking an appeal are provided by statute, the aggrieved party may simply file a notice of appeal with the tribunal from whose order he is appealing. The district court is then to “review tire same, either with or without additional pleadings and evidence, and enter such order or judgment as justice shall require.”
Subsection (b), dealing with this court, contains a broad grant of appellate jurisdiction:
“The supreme court shall have jurisdiction to correct, modify, vacate, or reverse any act, order, or judgment of a district court in order to' assure that any such act, order or judgment is just, legal, and free of abuse.”
We think this statute, in both its parts, reflects a legislative intent to furnish the complete gamut of judicial review to any decision of a judicial or quasi-judicial character. Thus, for example, in Powers v. State Department of Social Welfare, 208 Kan. 605, 493 P. 2d 590, we held that under 60-2101 (a) an appeal would lie to the district corut from a quasi-judicial decision of an appeals committee of the state department of social welfare, despite the total lack of any appeal provision in the statute creating the appeals committee (K. S. A. 75-3306). Once it was determined that the district court had jurisdiction we had no misgivings about determining the merits of an appeal from that court, even though there is nothing anywhere in the statutes specifically providing for further judicial review of such an administrative decision. We did the same, against analogous procedural backgrounds, in Neely v. Board of Trustees, Policemens & Firemens Retirement System, 205 Kan. 780, 473 P. 2d 72; and Lauber v. Firemens Relief Association, 202 Kan. 564, 451 P. 2d 488.
We have also exercised appellate jurisdiction without question in cases where the statute specifically provided for an appeal to the district court but, like this statute, was silent on an appeal to this corut. Kansas State Board of Nursing v. Burkman, 216 Kan. 187, 531 P. 2d 122; Morra v. State Board of Examiners of Psychologists, 212 Kan. 103, 510 P. 2d 614; Lira v. Billings, 196 Kan. 726, 414 P. 2d 13. Indeed, we even heard Extendicare’s own appeal to this court under the very statute now involved, at least to the extent of determining whether it had standing to appeal to the district court in the first instance. (Extendicare v. State Coordinating Council for Health Planning, 216 Kan. 527, 532 P. 2d 1119.)
Under what auspices have we asserted jurisdiction in such cases? Although the question was not raised and the jurisdictional premise was therefore not articulated, it was necessarily under the grant of 60-2101 (b), authorizing this court to review any “act, order, or judgment” of a district court. In most cases, and in this case, our jurisdiction is invoked by an appeal as of right under K. S. A. 60-2102 (a) (4) from a “final decision in any action.” It may be conceded that an appeal from an administrative agency is not an “action” in the sense that it is commenced in the district court by the filing of a petition and service of process. (See K. S. A. 60-203.) It may also be conceded, as will be noted later, that the decision of the appeals panel was purely administrative and not judicial or quasi-judicial. For our purposes that merely means that in the absence of specific statutory authority no appeal would lie to' the district court — i. e., 60-2101 (a) would not be applicable. Compare Thompson v. Amis, 208 Kan. 658, 493 P. 2d 1259. Nevertheless, the review of any administrative decision by the district court is a judicial proceeding, requiring the court to perform judicial “acts” and to enter judicial “orders” and “judgments.” If this court is to exercise its statutory jurisdiction to “assure that any such act, order or judgment is just, legal, and free of abuse,” then that jurisdiction must be invocable, either through the normal appellate process or through an extraordinary remedy. We believe that in this type of case the legislature intended us to exercise appellate jurisdiction.
We therefore hold that once an appeal from an administrative agency is properly taken to the district court, either under a statute specifically authorizing it or under K. S. A. 60-2101 (a), a further appeal is authorized under the statutes dealing generally with appeals from the district court.
In a response to a reply brief filed after our hearing in this case Extendicare also suggests for the first time that the appeal to this court was not timely. The state board of health and its coordinat- ' ing council for health planning were parties to this proceeding, and the notices of appeal were filed within the sixty days allowed by K. S. A. 60-2103 (a) where the state or an agency thereof is a party. The appeal was timely, we have jurisdiction, the motion to dismiss is overruled, and we shall proceed to the merits.
Before doing so, however, it is appropriate to determine just what we are reviewing and to define the scope of our review. The act we are dealing with calls for a first decision to be made by the regional planning agency for the area where the proposed facility is to be built. It then goes on to provide for appellate review by an administrative agency, the “appeals panel.” This term is defined in K. S. A. 65-2a01 (/):
“ ‘Appeals pane! means a board of appeals composed of two representatives from and designated by the coordinating council for health planning and one representative from and designated by each approved planning agency, exclusive of the region or regions involved in the appeal. Members of the appeals panel shall not be affiliated with any of the parties, persons, agencies or institutions who are involved in the appeal.”
The authority of the appeals panel, as well as of the planning agency, is set forth in 65-2a08:
“The planning agency, acting upon a request originally, or the appeals panel, acting as the appeals body, shall make one of the following decisions:
“(a) Approve the request in its entirety;
“(b) disapprove the request in its entirety;
“(c) approve the request subject to modification by the applicant, as recommended by the body involved.”
It may be seen that the appeals panel is given exactly the same authority as the planning agency. A similar statutory scheme in our ad valorem tax assessment procedures was examined in Mobil Pipeline Co. v. Rohmiller, 214 Kan. 905, 522 P. 2d 923. There statewide valuations were first made by the director of property valuation, subject to an appeal to the board of tax appeals. We held it was the board’s decision that was subject to the limited judicial review of an administrative decision, not that of the director. We said that “it is not the function of the district court to ascertain whether the Director of Property Valuation has considered all of the applicable indicators of value prescribed by the legislature . . ., but whether the State Board of Tax Appeals, after hearing all of the evidence and making findings of fact, has entered orders assessing the property which are unreasonable, arbitrary, or capricious.” (Syl. ¶ 13.) See also, Northern Natural Gas Co. v. Dwyer, 208 Kan. 337, 492 P. 2d 147. And compare Powers v. State Department of Social Welfare, supra, where judicial review was of the decision of the department’s appeals committee, and not that of the county board which had originally denied benefits.
Under 65-2a08 the appeals panel is to exercise its own judgment on a request. We therefore conclude that upon further review by the courts the decision of the appeals panel is the final administrative decision subject to judicial scrutiny.
The scope of judicial review in such a case is also well defined by our decisions. The appeal statute, K. S. A. 65-2a08, provides that on appeal from the appeals panel, “The district court shall try the appeal de novo and shall have the jurisdiction to affirm, modify, vacate, or reverse the approval or disapproval being appealed.” It also provides that when an appeal to the district court is taken, “The coordinating council shall, within twenty (20) days after being served, file with the clerk of the district court all records of the planning agency, appeals panel, and coordinating council in the case, including the evidence taken at previous proceedings.”
We have dealt before with legislative efforts to grant de novo trials where the subject of review is a purely administrative function such as the pre-licensing decision involved here. We have consistendy held that the constitutional separation of powers limits the courts to a limited form of judicial review. Lira v. Billings, supra; Rydd v. State Board of Health, 202 Kan. 721, 451 P. 2d 239. And cf., Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 436 P. 2d 828, 28 A. L. R. 3d 472; Lauber v. Firemens Relief Association, supra; and Neely v. Board of Trustees, Policemen’s & Firemen’s Retirement System, supra.
The general rule on the scope of judicial review, found throughout all our cases and covering our own responsibility as well as the district court’s, is succinctly stated in Foote:
“A district court may not, on appeal, substitute its judgment for that of an administrative tribunal, but is restricted to considering whether, as a matter of law, (1) the tribunal acted fraudulently, arbitrarily or capriciously, (2) the administrative order is substantially supported by evidence, and (3) the tribunal’s action was within the scope of its authority.”
“In reviewing a district court’s judgment, as above, this court will, in the first instance, for the purpose of determining whether the district court observed the requirements and restrictions placed upon it, make the same review of the administrative tribunal’s action as does the district court.” (Syl. ¶¶ 1, 2.)
There being no question of fraud or the scope of the authority of the appeals panel, the question is whether the order is substantially supported by evidence. Or, as the Shawnee Mission hospital puts it in its brief, “Certainly the key issue involved in this litigation is whether there is a need for a new 400-bed hospital in Johnson County, Kansas.”
The statute (65-2a06) specifies that:
“Every pre-licensing request for certificate of need shall include at least the following information which shall be used by the planning agency to determine if sufficient need exists for the proposed facility:
“(a) A description of the program and services to be provided;
“(b) the general geographic area to be served;
“(c) the population to be served, as well as projections of population growth;
“(d) the anticipated demand for the health service or services to be provided;
“(e) utilization of existing programs within the area to be served offering the same or similar health services;
“(f) projected cost estimates of capital expenditures and operating expenses;
“(g) projected staffing of the service;
“(h) schematic plan if construction is included in the application;
“(i) the anticipated benefits of the proposed program.”
Extendicaore’s application was made on forms furnished for that purpose by the state board of health, designed to meet these statutory requirements. In its order refusing the certificate MACHPA, the regional planning agency, focused on four supposed deficiencies. These were Extendicare’s claimed failure to (1) propose a reasonable service area, (2) prove physician support within a proper service area, (3) reasonably define the proposed hospital services, and (4) demonstrate the impact of the new facility on the existing institutions in the proposed service area.
The trial court made findings of fact on each of these claimed deficiencies.
“(19) The application of Extendicare, Inc. contained a designation of the ‘general geographic .area to be served,’ as required by statute. The designation of Johnson County as the ‘general geographic area to be served’ was a proper and acceptable delineation of service area. The court notes that most of the demographic data made available by MACHPA and others is established on a county by county basis. Johnson County, Kansas is an identifiable area with growth patterns and hospital needs that are readily definable by existing demographic data.
“(20) Although the Regional Health Planning statutes do not require a demonstration of physician support as a prerequisite to granting a certificate of need, adequate physician support was demonstrated for Extendicare’s proposed hospital.
“(21) The health care services to be offered by Extendicare’s proposed hospital were fully outlined in its application and before the appeals panel.
“(22) There is no reason to believe there would be an adverse effect on hospitals already located in Extendicare’s probable service area in Johnson County.”
The trial court’s finding on each of these questions was supported by evidence which had been before the appeals panel. As to the latter three items: Physician support was evidenced by an independent survey taken by the mayor of Overland Park showing some 82 physicians wishing to join the active staff of a new hospital in that city; the services to be offered were set out at length in the application itself; and although there is a dispute as to the exact extent of their occupancy the record is replete with data bearing on the present utilization of the other two Johnson county hospitals.
The most serious argument centers on what should be the “service area” of the new hospital. Extendicare said, in response to the statutory requirement, that the “general geographic area to be served” would be Johnson county. The appellants, and MACHPA before them, insist that all of the metropolitan Kansas City area must be considered in determining whether new beds are needed in Johnson county. The trial court answered this contention in its findings, all supported by the record:
“(31) Only 35 per cent of Johnson County residents needing hospitalization receive care in Johnson County, while 50 per cent of Johnson County residents needing care receive hospital care in Jackson County, Missouri, and 15 per cent in Wyandotte County. Thus, 65 per cent of the Johnson County residents requiring hospital care must go outside the county for treatment.
“(32) Summaries of medical trips to both doctors and hospitals analyzed by MACHPA established that from 85 to 93 per cent of the medical trips originating in Jackson, Leavenworth and Wyandotte Counties terminated in the county of origin, while in Johnson County the percentage is only 65. The court finds that the percentage of patients who are Johnson County residents in Shawnee Mission Medical Center is 84.2 per cent, and in Olathe Community Hospital 95.1 per cent. Johnson County residents compose only from 8.3 to 15.9 per cent of the patients in Wyandotte County hospitals. Medical trip summaries establish that Johnson County residents desiring medical treatment will obtain it in their own county if available, but that there are not adequate in-patient facilities in Johnson County to service its residents.
“(33) Presently there are 297 hospital beds in Johnson County, located in Shawnee Mission, Olathe and Gardner hospitals, or 1.4 beds per thousand population in Johnson County. Johnson County has 20 per cent of the 1.25 million population in the Kansas City area, but only 4.5 per cent of the hospital beds.
"(34) Johnson County has a current population in excess of 220,000 reflecting an increase of over 50 per cent during the 1960’s, and a projected population of about 300,000 by 1980. Population figures clearly indicate that the county will continue to experience heavy growth in and toward the southwest, where presently over one-half of the population now resides. The proposed location for the Extendicare hospital is in close proximity to the heavy growth area.
“(35) The court'finds that health planning may be a valid concept, but that planning takes many shapes and forms. The court further finds that MACHPA’s apparent health planning concept, namely that sufficient facilities in the Greater Kansas City metropolitan area mean no new facilities should be built in Johnson County, is not the only imaginable health planning concept, especially in view of the number of beds that fail to conform to minimum federal standards, particularly in Wyandotte County. The court further finds that locating health and medical facilities where the population is substantial and growing, while at the same time phasing out nonconforming facilities, is a valid health planning concept. Certainly, beds located in Jackson County, Missouri, are no answer to the needs of most Johnson County residents.
“(36) The court finds that an acceptable health planning concept must consider and provide for the health and medical needs of the service area, and that protection of existing health facilities from possible competition should not be undertaken in the name of planning at the expense of a public in need of hospital service.
“(37) There is a maldistribution of hospital beds in metropolitan Kansas City. There are large numbers of substandard hospital beds in Greater Kansas City, to wit: 1,714 beds.
“The ratio of hospital beds per thousand population in Johnson County is extremely low. The use of Johnson County as a service area and the following of other political boundaries is reasonable due to census, demographic and other socio-economic data being thus accurately computed and evaluated.
“The fact that two-thirds of Johnson County patients are hospitalized outside the county more nearly proves that hospital beds are not available in the area than the proposition none are needed.
“Any new beds to be built in Greater Kansas City should probably be built in suburban areas where the population is expanding rapidly. There is a need for the hospital proposed in the Extendicare application and no substantial evidence is before the court to cause the court to modify the magnitude of such facility downward from the 400-bed request.”
The trial court concluded on this basis, on facts which had been before both MACHPA and the appeals panel, that there was substantial evidence to support the finding of need by the appeals panel, while the decision of MACHPA denying the application was erroneous and without substantial support, and thus was arbitrary, capricious and unreasonable to the extent of being tantamount to constructive fraud.
Then, in deference to the statutory provision for a de novo hearing, the district court went on to conclude:
“The court, after a full review of all evidence in a trial de. novo on the record, makes an independent finding that there exists a need for the proposed 400-bed hospital facility in Johnson County and that the Extendicare application should be granted. Any alleged irregularities in the appeals panel proceeding are irrelevant in view of the trial de novo and independent finding of need. Therefore, a certificate of need should be granted to Extendicare, Inc.
“The parties have each requested the court to take judicial notice of certain matters and have made offers of proof on certain matters of new evidence. It appears that had all such evidence been received the findings and conclusions would be the same.
“The application of Extendicare in all particulars complies with the requirements of law and speaks the truth. There has been no error or infirmity shown to the court that can prevent the building of the hospital Extendicare, Inc. wants to build. A certificate of need should be granted under every evidentiary option open to the court and under each of the tests for considering such evidence.”
It must be apparent that whether there is a “need” for more hospital beds in Johnson county, and the extent to which available beds in Kansas City, Missouri, should be considered in determining that question, are at best subjects on which reasonable men might differ. The resolution of such questions is entrusted to the administrative officials. We said of an analogous situation, where zoning questions are entrusted to the city governing body, “The most that could be said from the standpoint of plaintiff and those he represents is that the matter may be fairly debatable. That being so, the court may not substitute its judgment for that of the city in order to change the decision on the debate.” (Arkenberg v. City of Topeka, 197 Kan. 731, 738, 421 P. 2d 213.)
On the “merits,” then, the trial court was correct in upholding the administrative decision of the appeals panel — the courts may not substitute their judgment to change the decision on the debate.
The appellants, however, launch a barrage of complaints of a procedural nature, each of which they claim requires reversal:
It is contended that the whole proceeding is void because Ex-tendicare’s original application was not “complete.” The statutes (65-2a02 and 2a03) require that an application be complete before it is considered by a planning agency, and authorize the agency to require additional information from an applicant before acting on it. In this case MACHPA made a series of demands for information which Extendicare met to the avowedly best of its ability. In particular, MACHPA was dissatisfied with Extendicare’s definition of the proposed service area. At length, although still expressing its dissatisfaction, MACHPA formally considered the application and rejected it. On this issue die trial court concluded:
“. . . Acceptance implies completeness. All information requested by the application form was prepared and presented, and the application was accepted and considered by MACHPA. Extendieare’s application for a certificate of need was complete and legally sufficient.”
We concur. On the one hand, MACHPA could not postpone a decision indefinitely by making unwarranted demands for unobtainable data. On the other, if MACHPA had a legitimate need for more information it should not have accepted the application as it did — apparently on the advice of counsel. Appellants do not now point to any substantial deficiencies in Extendicare’s application and we discern none. It was, in the trial corut’s words, “complete and legally sufficient.”
The Olathe hospital attacks the composition of the appeals panel. K. S. A. 65-2a01 (f), quoted above, requires one representative from each “approved planning agency” in the state (other than an agency involved) and two from the state coordinating council. Extendicare’s appeal was filed April 16, 1973. The appeal was heard on May 16, 1973, the last day for doing so. The director of the coordinating council for health planning of the state board of health notified the six approved planning agencies (other than MACHPA) to designate a representative, and two were designated from the council itself. The designee of one agency didn’t appear for the hearing, so the appeals panel consisted of seven members. Prior to the hearing the members of the panel were furnished with transcripts of the MACHPA proceedings and the documentary evidence introduced at the MACHPA hearings. Its vote, as previously noted, was unanimous.
The present contention is that two of the agencies represented had received only conditional approval which had expired prior to the hearing, while three others which were approved on the Friday before the Wednesday hearing were not represented. The method by which the agencies selected their representatives is also challenged. In addition, it is said that the terms on the coordinating council of the two representatives from that body had expired, and they were not reappointed (retroactively) until some time after the hearing. Also, it is claimed the members of the appeals panel did not take a separate oath of office to serve in that capacity, or file statements of their substantial interests.
There was no doubt some informality in the manner in which the various agencies operated. No less could be expected from non-lawyers attempting to function under an act on which this court commented, “It cannot be said the Regional Health Programs Act is a model in the art of legislative draftsmanship. In fact, it leaves much to be desired if the Act is to be efficiently administered.” (Extendicare v. State Coordinating Council for Health Planning, supra, p. 530.) Nevertheless the persons designated as members of the appeals panel assumed their duties as such under color of authority, performed those duties, and were recognized and accepted as public officers by all who dealt with them. These are the classic characteristics of a de facto officer. In Railway Co. v. Preston, 63 Kan. 819, 66 Pac. 1050, we quoted with approval the definition of a de facto officer found in the “landmark” decision of State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409:
“ ‘An officer de facto is one whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where the duties of the office were exercised:
“ ‘1. Without a known appointment or election, but under such circumstances of reputation- or acquiescence as were calculated to induce people without inquiry to submit to or invoke his action, supposing him to be the officer he assumed to be.
“ ‘2. Under color of a known and valid appointment or election, but where the officer had failed to conform to some precedent requirement or condition, as to take an oath, give a bond, or the like.
“ ‘3. Under color of a known election or appointment, void because the officer was not eligible, or because there was a want of power in the electing or appointing body, or by reason of some defect or irregularity in its exercise, such ineligibility, want of power or defect being unknown to the public.’ ” (63 Kan. at 823.)
See also, State, ex rel., v. State Office Building Commission, 185 Kan. 563, 345 P. 2d 674; State, ex rel., v. Hodgson, 183 Kan. 272, 326 P. 2d 752; State v. Roberts, 130 Kan. 754, 288 Pac. 761; Briggs v. Voss, 73 Kan. 418, 85 Pac. 571. And cf., Stawitz v. Nelson, 188 Kan. 430, 362 P. 2d 629. If an objection is to be made to the authority of such an officer it must be made at the time he acts. An objection made on appeal is too late. Parvin v. Johnson, 110 Kan. 356, 203 Pac. 721; City of Wellington v. Wellington Township, 46 Kan. 213, 26 Pac. 415; Higby v. Ayres and Martin, 14 Kan. 331. Both appellants had notice of the hearing and both appeared and participated without objection. No timely objection to the composition of the appeals panel was made in this case, and its decision is not subject to the present collateral attack on the basis of its lack of authority.
The appellants also raise several evidentiary points, both at the appeals panel and district court levels. The biggest controversy turns on the role that should have been played by the “State Plan,” a voluminous document promulgated by the state board of health. The MACHPA committee which first considered Extendicare’s application made reference to it, but it was not certified to the appeals panel. The district court refused to admit it into evidence or take judicial notice of it. We believe its decision was correct for the simple reason that the state plan was not relevant. It was prepared under the authority of K. S. A. 65-412, which makes the board of health the “sole agency of the state for the purpose of: . . . (2) developing and administering a state plan for the construction of public and other nonprofit hospitals and medical facilities. . . .” The primary purpose of the state plan, and the purpose of the enabling legislation, was to qualify this state for its share of the federal largesse which was formerly distributed for hospital construction under the Hill-Burton Act. Extendicare sought no such public assistance.
At the district court hearings the appellants offered the testimony of an expert in the field of public health planning. The court rejected the proffered testimony, and all other new evidence, on the grounds that its review was limited to determining whether the action of the appeals panel was arbitrary, etc. As previously indicated, that concept of the scope of review was correct. Appellants, however, insist that this testimony would go to those issues which were properly within the scope of judicial review, relying on such cases as Bodine v. City of Overland Park, 198 Kan. 371, 424 P. 2d 513; Keeney v. City of Overland Park, 203 Kan. 389, 454 P. 2d 456; and Rydd v. State Board of Health, supra. In Rydd we said:
“. . . The trial in district court then is de novo in the sense the court may take its own evidence and is not necessarily limited to the evidence presented before the administrative board. The power to receive and consider such evidence, however, is not to be employed for the purpose of enlarging the scope of judicial review — the test being the evidence must be relevant to the limited issue before the court on appeal. . . .” (202 Kan. at 732.)
This principle is subject to the important qualification that “a party appearing before an administrative body cannot produce his evidence piecemeal. He cannot produce part of his. evidence before an administrative agency and then produce the balance on judicial review.” (Strader v. Kansas Public Employees Retirement System, 206 Kan. 392, 402, 479 P. 2d 860.)
In Keeney we said:
“. . . Parties attacking the reasonableness of an ordinance should not be precluded from the presentation of relevant evidence showing unreasonableness, even though such evidence was not presented to the governing body. This is not meant to imply that the hearing in district court should be a retrial on the merits of the zoning application, irrespective of whether or not a record was made of the city council’s proceedings; neither does it imply that a party may lie in wait and ambush the other side at the district court hearing. The district judge remains armed with his usual discretion in admitting or rejecting evidence, and his rulings will not be disturbed unless substantial rights of a party are thereby affected.” (203 Kan. at 394.)
We there found that some of the plaintiffs’ rejected testimony should have been admitted, but went on to say:
“Although the trial court’s ruling was unduly restrictive as to what evidence was admissible, the plaintiffs are not entitled to a reversal of the judgment. The court did not abuse its discretion in excluding certain evidence offered by plaintiffs, which was mainly repetitious of that given at the hearing before the city council.” (Id., p. 395.)
In rejecting the expert’s testimony the trial court said that it “recognize [d] many of the contentions of that alleged expert as having been mentioned at the various hearings the Court has held hereto fore on this matter.” It went on to say that “Although there appears to be nothing startling or new in the offer of expert opinion by this witness,” the court would have been glad to hear it — if it had been the licensing agency making the original determination. The clear import is that the testimony would have been cumulative, and was an attempt to retry the merits of the application. From our review of the proffer we concur. In this respect it was unlike the rejected testimony of the agency’s appraiser in Northern Natural Gas Co. v. Dwyer, supra. That testimony went to the very basis of the administrative decision making process, and bore directly on the claim of arbitrariness. The testimony here consisted of the expert’s views on good planning. MACHPA and the appeals panel would have found it relevant, but we do not believe it went to the issue of arbitrariness. The trial court therefore did not abuse its discretion in rejecting it.
Appellants complain because the trial court excluded a document called “Criteria for Certificate of Need Review,” prepared by the board of health and distributed to regional planning agencies. In it the state board exhorts the planning agencies, in the most general terms, to make sure an applicant complies with the law and will be able to furnish good health services. We simply cannot see how the exclusion of this document, even if erroneous, prejudiced the appellants, or how its consideration would add anything on the new trial they claim its exclusion requires.
At about the same level is the complaint that the trial court refused “to take judicial notice of pertinent linear distances and other matters properly the subject of judicial notice.” This point deals largely with two maps of the greater Kansas City area, offered in evidence for the first time in the district court. The court’s response was:
“Well, the Court is going to take judicial notice that all administrative bodies, and all people involved in this entire chain of transactions has taken notice of the fact that there is a state line involved. I presume they all understand that there are county lines in the metropolitan area, also.
“The Court does not consider the map to be evidentiary, but a matter of common knowledge, and I am not going to make a recitation that I am taking judicial notice of your maps. But I certainly have a personal knowledge of geographical concepts of this area. I will ask that each of these two maps remain with the record, and you may use them as a part of your argument as you see fit.”
Although the trial court may not have drawn the inferences from the maps that appellants would have liked, it is apparent that they were considered. Other matters, dealing with population figures and the like, were in evidence in the voluminous documents in the record. Appellants point to no excluded data which would have affected the result, and hence demonstrate no prejudicial error.
It is contended that the appeals panel was required to make specific findings of fact; instead it merely announced, through its chairman, the result of its unanimous vote. There is nothing in the statute requiring findings of fact and, unlike the corporation commission, the appeals panel was subject to no rule or regulation requiring such findings. (Compare, e. g., Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P. 2d 660.) We have said that specific findings by administrative agencies are desirable (Neely v. Board of Trustees, Policemens & Firemens Retirement System, supra) but we have also said they are not indispensable in the absence of a statute or rule requiring them (Creten v. Board of County Commissioners, 204 Kan. 782, 466 P. 2d 263). Failure to make findings is not fatal here, particularly in view of the extensive findings made by the trial court.
Neither is it fatal that the appeals panel, after its all-day public hearing, retired for a 25 to 45 minute deliberative session with only the director of health planning and an assistant attorney general present during its deliberations. K. S. A. (now 1974) Supp. 75-4318 calls for open meetings of bodies such as the appeals panel, and provides that “no binding action by such bodies shall be by secret ballot.” One apparent purpose is to make public every official’s vote on the public’s business. There was no secret ballot here — the vote of the panel was unanimous, and each member’s vote is a public record. In addition, the all-day hearing itself was an “open public meeting” at which the views of all the participants were aired. Under 75-4319 the deliberative session of the panel could have been an entirely lawful “executive meeting” — all that was missing was a formal motion to that effect. Such a brief session, coming at the time it did, was certainly not a “subterfuge to defeat the purposes of [the] act.” There may have been a technical violation of the act, but there was no violation of its spirit. Knowing violation of the act is a misdemeanor, but there is nothing to indicate that the action taken at a meeting which is in substantial compliance with the act should be void. Neither the law nor good sense requires that this matter be sent back to the appeals panel for another vote.
Complaint is also made of the district court’s findings, the assertion being that they do not cover in detail all the multitudinous pro cedural points raised. We find them wholly adequate to cover the issues in the case. The trial court regarded the matters complained of as mere “irregularities” which were neither substantial nor jurisdictional, and we agree. In addition, we find no reversible error in the court’s making supplemental findings covering facts demonstrated by evidence which the parties had proffered but which the court rejected. The decision below was made independently of the rejected evidence, and the supplemental findings merely illustrated that the result would have been the same if such evidence had been considered.
Finally, it is argued that Extendicare’s application should have been rejected because it proposes to operate the Johnson county hospital through a wholly owned subsidiary rather than directly. We think this is a matter entrusted to the licensing agencies. Neither MACHPA nor the appeals panel found anything objectionable in what is a common method of operation among business enterprises of national scope. When it comes time to license the hospital, under K. S. A. 65-428 the board of health may require of the licensee “affirmative evidence of ability to comply with such reasonable standards, rules and regulations as are lawfully prescribed” under the hospital licensure act. If the proposed subsidiary cannot furnish such “affirmative evidence” we would suppose guarantees could be exacted from the parent corporation, or it could be required to operate the hospital itself.
In summary, the burden was upon the appellants to demonstrate to the district court that the decision of the appeals panel was arbitrary, unreasonable or unlawful. They did not do so. The burden here was to convince this court that the district court was wrong. They have not met that burden either. The judgment must therefore be affirmed.
approved by the court.
Fromme, J., not participating. | [
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|
The opinion o£ the court was delivered by
Fatzer, C. J.:
This is an appeal by defendant Clifford Wayne Morton from a conviction by a jury of the offense of indecent liberties with a child. (K. S. A. 21-3503 [1] [a].)
Some of the facts are not in dispute and may be briefly stated. A young lady, hereafter referred to as Miss “X”, age fourteen, was picked up at her home at 9:30 p. m. on Saturday evening December 1, 1973, by defendant, two boys and two girls, in defendant’s car. The group drove around town for awhile drinking alcoholic beverages. Miss “X” drank from a bottle of vodka given her by one of the group. After stopping at the home of one of the boys to pick up phonograph records and two blinking yellow lights, the group went to the defendant’s mobile home for a party. Upon getting out of the car, Miss “X” fell and had to be helped into the mobile home. A short time later she passed out on the couch. Later, the four youths left defendant’s home, leaving Miss “X” alone with the defendant for approximately fifteen minutes. When they returned, they found Miss “X”, still unconscious, lying on her back on the living room floor with her panties and underclothes down around her ankles. Miss “X” was subsequently taken to the hospital where she finally regained consciousness. She remembered nothing from the time she passed out on defendant’s couch until waking up in the hospital. Tests conducted at the hospital showed she had had sexual intercourse within twelve hours previous to the examination conducted at approximately 1:00 a. m. on December 2.
Defendant first contends the district court erred in denying his motion to dismiss the action because the state failed to prove beyond a reasonable doubt he had committed the act of sexual intercourse with Miss “X”. The state contends it proved this point by circumstantial evidence.
It is well established in this jurisdiction that a conviction of even the gravest offense may be sustained by circumstantial evidence. (State v. Ritson, 215 Kan. 742, 529 P. 2d 90 [1974]; State v. Hale, 207 Kan. 446, 485 P. 2d 1338 [1971]; State v. Kennedy, 124 Kan. 119, 257 Pac. 726 [1927].) The probative values of direct and circumstantial evidence are intrinsically similar and there is no sound reason for drawing a distinction as to the weight to be assigned to each. (State v. Ritson, supra; State v. Wilkins, 215 Kan. 145, 523 P. 2d 728 [1974].) In State v. Nichols, 212 Kan. 814, 512 P. 2d 329 [1973], it was said:
“. . . When the sufficiency of circumstantial evidence is considered on appeal, the question is not whether the evidence is incompatible with any reasonable hypothesis except guilt, as that question was for the jury. The appellate courts function is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. . . .” (1. c. 818.)
Considering the evidence in the record, we believe there was a factual basis for the jury’s verdict. The state’s evidence showed that defendant was alone with Miss “X” for approximately fifteen minutes. When the four young people left defendant’s home, Miss “X” was fully clothed and was unconscious on the couch. When three of the group returned, Miss “X” was still unconscious, but was lying on the floor with her panties down around her ankles. The defendant had his shirt on when the youths left; when they returned his shirt was off. One of the group testified that when they returned to the defendant’s home, she looked through the glass in the front door and saw the defendant in a crouched position pulling up his pants. Another of the group testified defendant told him he had “slapped the meat” to Miss “X”. A third group member testified defendant said something like “I cut her.” We cannot say the district court erred in overruling defendant’s motion to dismiss.
The defendant next contends the district court erred in neither allowing an in-court demonstration of the flashing yellow lights nor a demonstration of the flashing lights in defendant’s mobile home. Through these demonstrations, defendant hoped to attack the credibility of the state’s witness who testified she looked through the glass in the front door of defendant’s mobile home and saw him pulling up his pants in the room illuminated only by the flashing lights.
The defendant first sought to have the courtroom darkened except for the flashing lights so a defense witness could testify whether the intensity of the flashing lights was the same as when he earlier viewed them in defendant’s home. The district court sustained the state’s objection to the demonstration, and the defendant moved to conduct a demonstration of the lights for the jury in his home at night. That motion was likewise denied.
Allowing the performance of demonstrations or tests in the presence of the jury rests in the sound discretion of the district court. (Malone v. New York Life Ins. Co., 148 Kan. 555, 83 P. 2d 639 [1938]; 29 Am. Jur. 2d Evidence, §818 [1967].) Likewise, allowing the jury to view the scene of a crime is at the discretion of the district court. (State v. Winston, 214 Kan. 525, 520 P. 2d 1204 [1974]; State v. Beasley, 205 Kan. 253, 469 P. 2d 453 [1970], cert. denied, 401 U. S. 919, 27 L. Ed. 2d 821, 91 S. Ct. 903 [1971]; State v. Henson, 105 Kan. 581, 185 Pac. 1059 [1919].) Exercise of that discretion will not be overturned on appeal unless its abuse is apparent.
The demonstrations’ propriety, probative value and assistance to the trier of fact were determinations properly for the district court. Conditions in the courtroom and mobile home living room were obviously dissimilar. Moreover, the question of the state’s witness’ credibility had already been raised through conflicting testimony by a defense witness. We find no abuse of discretion by the district court in not allowing the proffered demonstrations.
Defendant’s final point on appeal is that the district court erred in failing to submit his requested cautionary instruction. The point is not well taken.
Defendant’s requested instruction was as follows:
“A charge of this nature is easily made, hard to be proved, and still harder to be defended by the party accused, even by one who is guiltless. It is that character of crime that tends to create a prejudice against any man who is charged with such an offense. You are not to be moved by passion, sympathy, sentiment, conjectures or prejudice to find a verdict of guilty, and unless you are convinced beyond a reasonable doubt from the evidence that the Defendant is guilty as charged, you should find the Defendant not guilty.”
In State v. Nichols, 212 Kan. 814, 512 P. 2d 329 (1973), this court considered the trial court’s refusal to give very similar cautionary instructions on a charge of rape and indecent liberties with a child. Finding no error, we said:
. . This court has long been committed to the rule that error cannot be predicated on the refusal to give specific instructions where the instructions given cover and include the substance of those requested but refused. . . .” (l. c. 817.)
Another rule of long standing in this jurisdiction was reiterated in State v. Irving, 217 Kan. 735, Syl. ¶ 1, 538 P. 2d 670. There it was said, “The propriety of instructions to a jury is to be gauged by their consideration as a whole, each in conjunction with all other instructions in the case.”
We have examined all the court’s instructions in the record and find they adequately provided, the jury with the substance of defendant’s requested instruction. The district court did not err in refusing defendant’s requested instruction.
The judgment is affirmed.
Fromme, J., not participating. | [
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|
The opinion of the court was delivered by
Jackson, J.:
The estate of John C. Kelly, deceased, is in the process of administration in the probate court of Sedgwick county. Mr. Kelly died testate, and named Walter R. Burdge as his executor and trustee of the elaborate testamentary Rusts created in his will. Mr. Burdge was duly appointed, qualified and is acting as the executor. He duly filed a petition for the construction of the will in probate court. This petition was transferred to the district court for hearing and decision.
The petition of the executor sets out one question for determination. It is alleged that the estate has not been finally distributed and closed because of a controversy with the United States Treasury Department, Internal Revenue Service, as to the amount of federal estate tax due from the estate; that the executor desires to await the settlement of this controversy so that the tax finally determined can be paid before final settlement of the estate. It is further alleged that the widow of the testator, Sarah F. Kelly, survived him, and has requested distribution of the estate to remove any doubt as to her right to exercise the power of appointment granted to her under the provisions of the will; that a construction of the will is necessary to determine whether the widow having survived her husband became vested upon testator s death with the beneficial interest given and devised to her under Item six (1) of the will with a power of appointment thereof, or whether such interest is conditioned upon the widow surviving the date of the closing and distribution of the estate by the executor.
The district court heard the matter and rendered its judgment holding that the widow’s beneficial interest under the will, including the power of appointment granted to her as to the estate given to her under the will, vested at the date of testator’s death and that she might exercise such power without waiting for the date of distribution of the estate.
Within due time, the appellants, two great grandchildren of the testator, appealed the decree of the district court to this court. Appellants hold contingent interests under the will and are represented by their duly appointed guardian ad litem.
It readily appears that the ultimate question to be decided upon this appeal turns upon the construction of the will of the testator. The will is long and elaborate and therefore will not be included in this opinion in full, but an adequate synopsis of the same taken from the briefs of the parties is appended to the opinion for ready reference. The italics in the appendix have been supplied to emphasize important provisions of the will.
In approaching the construction of a will in this jurisdiction, we must take note of the cardinal principle announced by this court in many decisions that the intention of the testator is to be gathered from a reading and study of the instrument as a whole (Commercial National Bank v. Martin, 185 Kan. 116, 120, 340 P. 2d 899; Johnston v. Gibson, 184 Kan. 109, syl. ¶ 3, 344 P. 2d 348; In re Estate of Yetter, 183 Kan. 340, 328 P. 2d 738; In re Estate of Blank, 182 Kan. 426, 320 P. 2d 775; In re Estate of Charowhas, 181 Kan. 322, 310 P. 2d 947; In re Estate of Woods, 181 Kan. 271, 277, 311 P. 2d 359; In re Estate of Cribbs, 180 Kan. 840, 308 P. 2d 111).
The above construction would seem to have special virtue as it is applied to this case. If only the provisions of Item six (3) be read separately one has some doubt as to the meaning of the will. On the other hand, if the will is read as a whole and the scheme of the testator is analyzed, there is little room left for doubt. From the will so considered, the court is convinced that the beneficial interest of the widow became vested at the time of her husband’s deáth and that this included the right to exercise the power of appointment given to her under Item eight (3).
Despite the fact that we believe a careful reading of the will is sufficient to disclose the soundness of the above, conclusion, we shall point out briefly some of the salient considerations. Without doubt, the primary purpose of the will was to give the testator’s wife the fullest security during her lifetime and to provide for the fullest, legal marital deduction for her benefit under the regulations of the internal revenue regulations in force at the time of the testator’s death. Testator’s concern for his wife’s welfare is shown by the fact that in Item nine (1), the trustee is directed to make available for the wife’s benefit the income or principal of Kelly Trust R, if that should be necessary. In fact, in every part of the will, testator shows his primary interest in his wife’s welfare as stated in plain language in the last cited paragraph.
Turning to other ideas expressed in the will, in the first paragraph the will provides for disposition of my property “effective at my death.” In Item six (2), it is provided that “in event my wife shall survive me, my trustee above named shall immediately divide all trust property into two separate parts . . .” The trustee and the executor under all conditions and events were intended to be the same individual. There would seem to be no reason why the fiduciary could not act in two capacities at the same time, and immediately set up the trusts provided in the will subject to the demands of the payments of debts, taxes and costs of administration due from the estate.
Item eight provides that the corpus of Kelly Trust A shall be the amount of the marital deduction under the internal revenue laws in force at the time of testator’s death. The wife was given absolute beneficial interest of this trust together with an absolute power of appointment. If these very important provisions do not vest beneficially in the wife at the time of testator’s death, they seem to become meaningless. This alone would seem sufficient to show testator’s intent beyond any possibility of question.
In subparagraph (3) in speaking of the power of appointment, the will continues: “Said right and power to appoint is expressly made exercisable by the said Sarah F. Kelly alone, at any time, and in all events.”
Certainly, “at any time” would include that period in which the estate was in process of administration.
Finally, in Item twelve the will directs the executor to begin the payments provided to be made by the trustee and to continue the same until the fiduciary shall take over fully as trustee. This provision is in harmony with the above mentioned provisions of Item six (2) indicating that testator intended the trusts to be operative as far as possible from the date of his death.
Now turning to the questioned language found in Item six (3): “If my wife shall not survive me” is clear beyond any possibility of cavil. The rest of the sentence as to her death before distribution to the trustee must be construed to refer only to any residue of the property given to the surviving wife which she has not disposed of by power of appointment. Attention is directed to the provisions of Item eight (4), where such undisposed of property shall become part of Kelly Trust B.
Such construction from a reading of the will as a whole is almost inescapable and gives meaning to every part of the will. In closing, it may be added that if such a construction of the will were at all in doubt, which we think is not true, this court has on several occasions adhered to the well-known rule that it will favor an early vesting of testamentary gifts (Cramer v. Browne, 159 Kan. 423, syl. ¶ 4, 155 P. 2d 468).
In our opinion, the decision of the learned trial court was entirely correct, and that decision should be affirmed.
It is so ordered.
APPENDIX
Synopsis of the Will of John C. Kelly
(Italics supplied)
The first paragraph of decedent’s Will is as follows:
“Know All Men by These Presents, That I, John C. Kelly, of the City of Wichita, County of Sedgwick, and State of Kansas, being of sound mind and disposing memory and not under any restraint, but desiring to make disposition of my property, effective at my death, do hereby make, publish, and declare this to be my Last Will and Testament, hereby revoking and making void any and all former wills and codicils heretofore made by me at any time.”
An analysis of the further provisions in the Will is as follows:
Item One directs the payment of lawful debts.
Item Two directs the payment of federal estate taxes and all inheritance and succession taxes.
Item Three is a special bequest to decedent’s grandson of certain personal items of jewelry and hunting and fishing equipment.
Item Four was a bequest to decedent’s brother.
Item Five gave the family automobile, household furniture, etc., and homestead interest to decedent’s wife Sarah F. Kelly if she survived decedent.
Item Six in decedent’s Will provides as follows:
“Item Six: (1) All the rest, residue, and remainder of my property, real and personal, and wheresoever situate, of which I shall die seized or possessed, I give, devise, and bequeath unto Walter R. Burdge, as trustee, in trust and upon trust for the use and benefit of my wife, Sarah F. Kelly, and my grandchildren, Frances Hasbrook Krause, George A. Krause, II, and Margaret Jane Davis-Alien, upon the terms and conditions herein set forth.
“2. In event my wife shall survive me, my trustee above named shall immediately divide all the trust property into two separate parts or shares either by physical segregation of the assets or by the assignment or transfer of an undivided interest in the whole or any part of the trust property. The first of said parts or shares shall be known as ‘Kelly Trust A,’ and the second part or share shall be known as ‘Kelly Trust B.’ Kelly Trust B shall include all the rest and residue of my property after segregation, assignment, and transfer of said assets to Kelly Trust A as hereinafter provided. Each part or share shall be held and administered as a separate and distinct trust for the benefit of the person or persons entitled thereto as hereinafter provided. A separate account shall be kept by my trustees of each of said trusts and the property of each shall be kept separate and apart from the other, although my trustee shall be permitted to make joint investments for and on behalf of both of said trusts, each trust contributing its pro rata share of funds used in making the said joint investments.
“(3) If my wife shall not survive me, or if she should die prior to the time when my estate is closed and distribution made to the Trustee, then only one trust shall be created which shall be known as the ‘John C. Kelly Trust/ and such trust shall be administered and closed as is provided herein for the ‘Kelly Trust B.’ ”
Item Seven is a provision bringing the termination of the trusts created in the Will within a time in avoidance of the rule against perpetuities.
Item Eight is as follows:
“Item Eight: The following provisions shall apply to Kelly Trust A.”
“(1) The shares alloted and set apart to Kelly Trust A shall be'an amount equal to the maximum marital deduction allowable with respect to my estate, under federal estate tax laws in effect at the time of my death; provided, however, the amounts allocated to my wife, pursuant to this Item, shall be reduced by the value of property qualifying for said marital deduction which passes or has passed to my wife, either under other provisions of this will or outside this will. The amount of assets passing to my wife shall be determined before there is a reduction of my estate by reason of any debts, bequests, or any inheritance, estate, or transfér taxes as provided under Item Two hereof. In determining the specific assets passing to my wife under this item, the decision of my wife shall be final; provided, however, her decision shall not include any property or interest therein with respect to which no marital deduction is allowable. For the purposes of this item the value as finally determined for federal estate tax purposes shall control.
“(2) The entire net income from this trust shall be paid at least once each year and, if possible, in quarterly or monthly installments during the lifetime of wife.
“(3) My said wife shall have the right and power by will or other instrument in writing to appoint the entire corpus of said trust, or any part thereof, to herself, to her estate, or to any other person or persons free of this trust. Said right and power to appoint is expressly made exercisable by the said Sarah F. Kelly alone, at any time, and in all events.
“(4) Upon the death of my said wife, and in the event she has not exercised the foregoing power of appointment, then the balance in said Kelly Trust A shall be distributed to Kelly Trust B, and shall be held and distributed in accordance with the terms of said trust as hereinafter provided.
“(5) If possession by my trustee of any one or more of the powers or duties expressly or impliedly conferred or imposed upon said trustee by this will would prevent my said wife’s interest in Kelly Trust A from qualifying as an interest passing to her as my surviving spouse, and to no other person within the meaning of federal estate tax laws in effect at the time of my death, or would otherwise disqualify said trust for the marital deduction provided by said federal estate tax laws, then and in that event, notwithstanding any other express or implied provisions in this will contained, my said trustee of Kelly Trust A shall possess no such disqualifying power or powers.”
Item Nine relates to Kelly Trust B. Paragraph 1 under Item Nine reads as follows:
“(1) My trustee shall have the right and power in his uncontrolled and uncontrollable discretion to pay to my wife or for her benefit all or such part of the income from this trust, current or accumulated, as may in his judgment, be necessary for her support, maintenance, comfort, welfare or happiness, and any trustee shall have the further power, in case of emergency requirements or financial need, to invade the principal of Kelly Trust B and use all or such part of such corpus as in the exercise of his sound judgment should be given to or used for the benefit of my wife, Sarah F. Kelly. It is the primary purpose of my will and the trusts created herein to fully and adequately provide for my wife if I should predecease her, and it is my wish and desire that this purpose should be kept in mind by my trustee and successor trustee in the administration of the trust to the end that she shall never be in want or financial distress even if this should result in the use of my entire estate.”
The remaining Paragraphs (2), et seq., of Item Nine relate to the distribution to decedent’s grandchildren of Kelly Trust B after the death of decedent’s wife Sarah F. Kelly.
Item Ten defines the words “trustee” and “net income” and specifies the trustee’s powers in the administration and management of the trust estate.
Item Eleven designates the executor or successor executor.
Item Twelve expresses the power and authority of the executor in the operation of the estate and then specifically provides:
“I hereby direct that my executor acting hereunder shall make the payments hereinbefore provided to be made by my trustee to the beneficiaries named herein at the time and in the manner hereinbefore set forth to be made by my trustee, and to continue to make said payments until my trustee shall qualify and receive the assets of the respective trust estates created by this will." | [
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|
The opinion of the court was delivered by
Harman, C.:
This is an action seeking damages for fraudulent misrepresentation in connection with an agreement concerning the payment for repairs made on plaintiff’s automobile. Defendants are the Kent-Brown Chevrolet Company, which did the repairs, and its alleged principal, General Motors Corporation, the manufacturer of the vehicle. The trial court rendered summary judgments for each defendant and plaintiff has appealed.
We first recite the factual background as gleaned from the pleadings, answers to interrogatories, affidavits and exhibits on file in the case, indicating dispute or uncertainty where either exists.
In April, 1969, a Charles Frisbie purchased a new 1969 Chevrolet Camaro from the Van-T Chevrolet company. Frisbie was issued a Protect-O-Plate card in his name, which card evidenced the manufacturer’s warranty. To obtain authorized repairs under the warranty this card is presented to an authorized dealer for imprinting on the work order. In July, 1972, Frisbie traded in the Camaro to defendant Kent-Brown Chevrolet Company, Van-T’s successor, on the purchase of a new automobile. In August, 1972, plaintiff Gerald R. Temmen and his father, Joseph R. Temmen, purchased the Camaro from Kent-Brown. At the time plaintiff was employed by Kent-Brown in its body shop and his father was a salesman for Kent-Brown. The pinchase order for the Camaro had the notation on it that the car was sold “as is with factory warranty”. The vehicle was originally sold under a 50,000 mile warranty issued by defendant General Motors (GMC), which covered certain specified parts. When plaintiff purchased the Camaro it had been driven about 24,000 miles. To obtain the benefits of the unexpired warranty coverage a second purchaser of the vehicle was required by the terms of the warranty to apply to the dealer for a Protect-O-Plate within thirty days or 1000 miles of vehicle usage following purchase and pay a $25.00 fee to the dealer. Admittedly neither plaintiff nor his father made application for this unexpired warranty coverage nor did either pay the $25.00 fee. Evidently plaintiff secured and retained the Protect-O-Plate card issued in Charles Frisbie’s name. On December 8, .1972, plaintiff used the Frisbie plate on a work order to obtain from Kent-Brown at no cost to him replacement of a water pump under the warranty. This resulted in a factory claim of $32.26. The circumstances of this transaction and the part played in it by various individuals are not revealed by the record (plaintiff simply asserts Kent-Brown agreed to do this by way of waiver).
On July 16, 1973, plaintiff again brought the Camaro to Kent-Brown’s shop for repair work to the rear wheel bearings. The vehicle at this time had 42,000 miles on it. Some of the facts respecting this transaction are sharply in dispute.
In plaintiff’s affidavit filed in opposition to those filed by Kent-Brown in support of its motion for summary judgment he says that at the time he delivered the automobile for repairs he expressly told Kent-Brown’s service writer that if the repairs could not be done under the warranty evidenced by the Frisbie Protect-O-Plate in the vehicle’s glove compartment plaintiff would have the work done elsewhere; that Kent-Brown’s service writer stated the work would be done under the warranty. A work order form was filled out. This form was an exhibit before the trial court. Plaintiff signed this form under a legend which stated “terms: strictly cash unless arrangements made”. The Frisbie Protect-O-Plate was imprinted on that part of the form which indicated the name and address of the owner of the vehicle.. The word “warranty” was handwritten on the face of the work order; however, this word was apparently partially scratched out later by pencil markings through it.
An affidavit of Kent-Brown’s service manager, filed by Kent-Brown, states that shortly after plaintiff brought the vehicle in for checking for possible trouble with the rear wheel bearings, he recognized the vehicle and looked at the work order on it and saw that the Protect-O-Plate used had never been transferred to plaintiff; he thereupon talked to plaintiff, advising him the plate could not be used, the work could not be done under the Frisbie warranty and plaintiff would have to pay for any work done; plaintiff became very upset; later, however, plaintiff told him to go ahead and do the work and plaintiff would pay for it; the work was done on the ve hide in the total sum of $112.85; plaintiff removed the vehide from Kent-Brown’s premises without paying for the work as he agreed, whereupon he (the service manager) wrote on the work order the following: “Take out of next weeks ck per LJS” and he advised the accounting department accordingly. Presumably, the service manager also wrote on the work order the words: “no warranty”.
The amount of $112.85 was withheld by Kent-Brown from plaintiff’s next pay check (Kent-Brown later discovered it had inadvertently overcharged plaintiff the sum of $37.16 for the repairs made and it mailed plaintiff’s counsel a check for that amount).
In plaintiff’s affidavit he denied he had any conversation with the service manager respecting the repairs or payment of repairs as related in the service manager’s affidavit and he specifically denied he had agreed to pay for the work to be done.
Plaintiff’s petition is not well articulated so far as stating any specific, precise theory of recovery is concerned; rather it is sort of a mixed bag in that a mingling of fraudulent misrepresentation, oppression, overreaching, outrage, bad faith and unjust enrichment is alleged along with the facts stated in his affidavit and a prayer for $10,000 actual damages and $100,000 punitive damages. Rhetoric aside, and despite the fact the petition is in some respects contradicted by statements in his affidavit, it appears plaintiffs theory is that Kent-Brown agreed to do the repair work at no cost to him but at the time of making such agreement had no intention of keeping it. Plaintiff’s petition further alleged that Kent-Brown was at all times the agent of General Motors Corporation.
Following the filing of answers by both Kent-Brown and GMC which joined issue with plaintiff’s claims, procedural skirmishing occurred which need be noticed only briefly: On April 1, 1974, plaintiff served upon Kent-Brown and GMC numerous interrogatories to be answered; each defendant filed objections thereto but GMC eventually answered many of theirs; Kent-Brown was granted two extensions of time within which to answer theirs but never did so; plaintiff answered GMC’s interrogatories; on July 1, 1974,. plaintiff moved for an order compelling Kent-Brown to answer his interrogatories; on July 16, 1974, Kent-Brown served notice to take the depositions of plaintiff and his father on July 22, 1974; plaintiff responded on July 18, 1974, with his motion for a protective order that the depositions not be taken on July 22nd because his attorney’s work schedule would prevent counsel’s appearance and also that Kent-Brown should be denied further discovery until it answered plaintiff’s interrogatories. July 19, 1974, Kent-Brown filed its motion for summary judgment, attaching thereto the affidavits of its general manager and service manager. As indicated, plaintiff presented his version of events in an affidavit in opposition.
The trial court concluded plaintiff had not presented a claim upon which relief could be granted and it sustained the motion. The court’s memorandum opinion first recited the facts concerning which there is no dispute and then continued:
“8. The work order (C 31285) shows signature of plaintiff agreeing to ‘Terms: Strictly cash unless arrangements made.’ On the previous work order where the warranty was honored (C 59661) no signature was present.
“9. The affidavits of plaintiff and defendant’s employees are inconsistent as to the conversations, if any, and the nature of the same and thus the Court will not attempt to resolve them.
“10. The plaintiff is not suing on any warranty, express or implied, but rather on an oral conversation between plaintiff and defendant’s employees where, in essence, plaintiff claims that the defendant, through its employees advised plaintiff that the repairs in question would be made at no cost to him. Defendant denies this.
“1. As indicated, there is no dispute that the plaintiff purchased a used vehicle ‘as is’ except with remaining factory warranty, provided plaintiff made the arrangements to transfer the warranty to him. This he failed to do. Thus we start with the premise that there existed no warranty on the vehicle in favor of the plaintiff; and further none are applicable by any operation of law under an ‘as is’ purchase.
“2. The fact that the vehicle was repaired on earlier instances after plaintiff purchased the vehicle with Frisbie’s Protect-O-Plate cannot as a matter of law, under these circumstances, be considered as any waiver, estoppel or agreement to repair in the future under this original warranty.
“3. The whole basis of plaintiff’s action hinges on a statement or statements made by defendant’s employees that they will agree to repair it at no cost to him. The written documents are inconsistent with this parol agrément’.
“4. The action must fail for various reasons':
“a. On the face of it there is no showing of any consideration, nor can any be inferred from the facts;
“b. Plaintiff’s allegation attempts to vary written documents;
“c. The parties are bound by the ‘as is’ sale, and plaintiff’s attempt to avoid this by alleging an oral conversation is insufficient in law.”
The court expressed its recognition that some facts were in dispute between the parties but stated these disputes were not on material matters. As to' GMC’s part in the lawsuit the court said:
“In addition, General Motors Corporation, is a party defendant under the theoijy of agency. It is assumed, from the pleadings, that the relationship occurred because of the defendant’s (Kent-Brown) employee advised plaintiff that repairs would be made at no cost to plaintiff. On this basis, the Court grants plaintiff ten (10) days to show why the action against General Motors should not be dismissed for failure to state a cause of action upon which relief can be granted.”
Plaintiff immediately appealed from the decision rendering summary judgment in favor of Kent-Brown and filed his statement of points accordingly. However, he took no action respecting GMC within the allotted ten days’ time. Thereafter GMC filed its motion to dismiss the action as to it. At the hearing on this motion plaintiff stated he was relying on vicarious liability in seeking to recover from GMC. The trial court ruled that absent a finding of liability against Kent-Brown there could be no finding against GMC under the theory of vicarious liability and it rendered summary judgment for GMC. Plaintiff filed a separate notice of appeal from this order. By agreement this appeal was consolidated with the pending appeal respecting Kent-Brown; however, no statement of points was ever filed as to the summary judgment in favor of GMC. The statement of points previously filed as to Kent-Brown does not in anywise mention GMC or the rendition of summary judgment in its favor and these points were never enlarged or changed. The trial court never reached a determination whether an agency relationship existed between Kent-Brown and GMC. GMC had denied such relationship and supported its position by documents attached to its answers to plaintiff’s interrogatories.
Although GMC restates here its reliance upon the nonliability of Kent-Brown and upon undisputed documentary evidence that Kent-Brown was never its agent with respect to this dispute it first points out that plaintiff-appellant has failed to preserve an issue for review as to it, for the reason appellant has not complied with our Rule 6 (d) relating to appellate practice which provides:
“. . . no issue, other than an issue going to the jurisdiction of the court over the subject matter of the litigation, may be briefed or will be considered on the appeal unless included in the statement of points.” (214 Kan. xxiii.)
We have uniformly held that failure to preserve an issue by including it in the statement of points precludes consideration of that issue on appeal (see cases cited at K. S. A. 1974 Supp. 60-2701, pp. 384-385). Here appellant has never in his points on appeal specified any error with respect to the trial court’s rendition of judgment for appellee GMC. The result is, we have nothing to review and the appeal as to GMC must be dismissed.
As to appellee Kent-Brown appellant first contends the trial court erred in rendering summary judgment when discovery was not complete. Here the parties had clashed over appellant’s interrogatories — Kent-Brown had filed objections to them and appellant had applied for an order compelling their answers and preventing Kent-Brown from taking appellant’s deposition until it answered the interrogatories. These motions had not been ruled upon and appellant asserts discovery was obviously incomplete. In Spears v. Kansas City Power <b Light Co., 203 Kan. 520, 455 P. 2d 496, it was stated with respect to the contention that summary judgment was improper because pretrial discovery was incomplete:
“It is true we said in Brick v. City of Wichita, 195 Kan. 206, 403 P. 2d 964, that ordinarily motions for summary judgment should not be sustained so long as pretrial discovery remains unfinished. But we also said in Brick, and we have consistently held in other cases, that K. S. A. 60-256 authorizes the entry of summary judgment if the pleadings, depositions, answers to interrogatories and affidavits, if any, show there is no genuine issue as to any material fact.” (p. 528.)
The trial court herein concluded the admitted factual disputes were not on material matters. Thus, if that conclusion were correct summary judgment could properly be granted even though discovery remained incomplete. Determination of this question necessarily is dependent upon resolution of point number two concerning whether there were any disputed material facts.
Appellant contends it was error to sustain Kent-Brown’s motion for summary judgment because material facts were in dispute. His petition alleged that Kent-Brown had orally agreed the repairs on his automobile would be done at no cost to him. (Appellant specifically asserts he is not suing under the warranty.) The trial court ruled the written documents were inconsistent with “this parol agreement” and the latter could not be used to vary the terms of the former. It applied that which is known as the parol evidence rule. The written documents referred to are the purchase order, under which appellant bought the vehicle in an “as is” condition with the warranty which admittedly he did not renew, and the work order. Kent-Brown admits that work done on the vehicle on a previous occasion had been done under the warranty at no cost to appellant. It is disputed whether Kent-Brown orally agreed to do the same as to the subsequent repair. The trial court relied upon the fact appellant had signed the work order under the provision which stated “terms: strictly cash unless arrangements made” (appellant had not done so on the previous work order). The court ruled that since parol evidence is inadmissible ti> vary the terms of a written contract the terms of the work order were controlling. Appellant admits he signed the work order but asserts he did so with the understanding the work would be covered by the warranty — that constituted the “arrangements made” as evidenced by the Protect-O-Plate imprinted in the appropriate place on the work order and the word “warranty” handwritten on it. Considering everything which was on the work order when appellant signed it, it is susceptible to the interpretation urged by appellant if that was in fact the intention of the parties. The words “no warranty” presumably were written on the work order after appellant signed it.
The parol evidence rule was well expressed in Thurman v. Trim, 206 Kan. 118, 477 P. 2d 579, as follows:
“When a contract is complete, unambiguous and free of uncertainty, p&rol evidence of a prior or contemporaneous agreement or understanding, tending to vary or substitute a new and different contract for the one evidenced by the writing is inadmissible.” (Syl. f 2.)
Thus it will be seen by its very terms the exclusory rule is not always applicable in every situation in which extrinsic evidence is sought to be used where a written contract exists. Beyond this, the rule is not inflexible and there are exceptions. In the oft-cited case of Rice v. Rice, 101 Kan. 20, 165 Pac. 799, this was stated:
“Although the terms of a written obligation, assumed to be valid, cannot be varied by parol, it may be shown by parol what caused the party thus to obligate himself, and thereby test the question whether he is legally bound, as the writing imports, or whether he is by any cause wholly or partially freed from liability thereon.” (Syl. ¶ 1.)
An exception to the rule was stated in Hawthorn-Mellody, Inc. v. Driessen, 213 Kan. 791, 518 P. 2d 446, as follows:
“A well-recognized exception to the parol evidence rule permits the use of evidence of fraudulent representations made during the course of negotiations where a contract is procured or induced by the fraudulent representations of one of the parties which were relied upon by the other.” (Syl. ¶ 1.)
Under the foregoing rules and appellant’s allegations of fraud in the inception it appears the oral testimony concerning the signing of the work order and the so-called agreement that the work would be done without cost to appellant despite his failure to have the warranty reissued to him was admissible. The evidence on these points was sharply disputed and resolution of the dispute was for the trier of the fact. Part of the problem in dealing with the motion for summary judgment may perhaps have arisen from the fact that when it was presented the issues had not been defined as fully as they might have been. Since the disputed facts were on material issues in the case summary judgment was improperly granted.
Additionally the trial court found there was no showing of any consideration for the alleged agreement. This defense was not pleaded in Kent-Brown’s answer and just how it entered the case is not revealed in the record before us. Every contract, express or implied, must be supported by a consideration to be legally enforceable (Coder v. Smith, 156 Kan. 512, 134 P. 2d 408). Consideration has been defined as any benefit, profit or advantage flowing to the promisor which he would not have received but for the contract, or any loss or detriment to the promisee (State Investment Co. v. Cimarron Insurance Co., 183 Kan. 190, 195, 326 P. 2d 299).
Once the work was done under the warranty Kent-Brown presumably would receive compensation from GMC, if that were indeed Kent-Brown’s agreement with appellant and if GMC did not challenge the validity of the transaction. The more difficult question is the detriment to appellant. He alleges he specifically informed Kent-Brown that unless the work were taken care of under the warranty he would take the vehicle elsewhere for the repairs and that he left it with Kent-Brown only upon assurance the warranty would cover the work. In 1 Williston on Contracts, 3d ed., § 102A it is stated:
“. . . Detriment, therefore, as used in testing the sufficiency of consideration means legal detriment as distinguished from detriment in fact. It means giving up something which immediately prior thereto the promisee was privileged to retain, or doing or refraining from doing something which he was then privileged not to do, or not to refrain from doing.
“Benefit correspondingly must mean the receiving as the exchange for his promise of some performance or forbearance which the promisor was not previously entitled to receive. That the promisor desired it for his own advantage and had no previous right to it is enough to show that it was beneficial.” (pp. 381-382.)
Appellant asserts that by reason of Kent-Brown’s agreement he gave up the right to attempt to receive a better bargain elsewhere for the repair work. In 17 CJS, Contracts, § 74, it is stated:
“It has been said that every sufficient consideration, although not technically an estoppel, contains the substantial elements of an estoppel in pais, since one man by his promise induces another to change his situation, and to repudiate his promise would enable him to perpetrate a fraud. Generally it makes no difference that one to whom a naked promise was made has suffered damage through relying or acting on it, but a promise which the promisor should reasonably expect to induce action or forbearance of a definite and substantial character on the part of the promisee and which does induce such action or forbearance is binding if injustice can be avoided only by enforcement of the promise.” (p. 764.)
See French v. French, 161 Kan. 327, 330-331, 167 P. 2d 305, 308, where the foregoing was applied.
Tenuous though it be, we believe that under the circumstances here there was a sufficient showing of consideration.
The appeal as to appellee General Motors Corporation is dismissed.
The summary judgment rendered in favor of Kent-Brown is reversed and the cause is remanded for further proceedings.
APPROVED BY THE COURT.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Harman, C.:
These are two criminal actions wherein by grand jury indictments certain individuals and corporations were charged with conspiracy to commit bribery and another individual was charged with bribery. The state has appealed from rulings dismissing both indictments because the .grand jury was improperly selected and defendants have cross-appealed from the denial of other pretrial motions filed by them. The appeals in the two cases have been consolidated for the purpose of the state’s appeal under the parties’ stipulation that as to common questions a decision in one case will determine the decision in the other.
On November 20, 1973, the then Kansas attorney general applied to Shawnee county district court judges en banc for the impaneling of a grand jury to investigate the awarding of architectural contracts for certain work at the University of Kansas Medical Center at Kansas City, Kansas. The application was granted and a grand jury was ordered summoned. After selection of the grand jury and presentation of evidence it returned two indictments on January 22, 1974. In district court case No. 29,155 the indictment charged eighteen individuals and five corporations with conspiring to bribe Richard Malloy, a public employee. These defendants are: Charles C. Campbell; George R. Docking; Edwin W. Korff; Jack E. Lakey; M. Gene Norton; Robert B. Jarvis; Donald R. Sledd; Forrest A. Towner; Marshall and Brown of Kansas, Architects, Engineers, Planners, Chartered, a Kansas Corporation; Marshall & Brown, Inc., a Missouri corporation; Marshall & Brown-Sidorowicz, P. A., a Kansas corporation; Norbert J. Sidorowicz; Taliaferro & Browne, P. A., a Kansas corporation; Will Taliaferro; Bruce Browne; Burgess, Latimer & Miller, P. C., a Missouri corporation; William E. Burgess; William A. Latimer; Robert D. Miller; Ralph E. Preston; Elton R. Plaster; Robert Sommers; and John Richner.
In district court case No. 29,156 the indictment charged Richard Malloy with bribery.
Shortly after the indictments were returned the defendants individually filed various motions alleging lack of venue and jurisdiction, that the conspiracy and bribery statutes are unconstitutional; file particular indictment was duplicitous, vague and failed to charge an offense; and also requesting discovery. These motions were ruled upon by Honorable E. Newton Vickers, administrative judge of Shawnee district court (defendants’ cross-appeal is from those rulings adverse to them). Subsequently all defendants filed motions for dismissal of the indictments upon the ground the grand jury which returned them had been illegally selected. The Shawnee district court judges disqualified themselves for the purpose of determining these motions since they had promulgated the rule prescribing the method of jury selection in Shawnee county and were also acting as jury commissioners. Upon this recusal this court assigned Honorable Jay Sullivan, retired district judge, as judge pro tern to hear and determine the motions challenging the grand jury’s composition. Judge Sullivan sustained the motions and dismissed the indictments.
Thereafter disagreement developed between the state and the defendants as to the exact import of Judge Sullivan’s memorandum opinion dismissing the indictments, as a result of which some of the defendants filed motions to amend or clarify the judgments and for additional findings. These motions were designed to obtain a ruling that the grand jury was void ab initio. Prior to hearing on these motions the state filed affidavits of prejudice in an effort to disqualify Judge Sullivan from ruling upon them. This court assigned Honorable Leo A. McNalley, retired district judge, as judge pro tern to determine the sufficiency of the affidavits. Judge McNalley ruled that the affidavits were legally insufficient. Upon remand, Judge Sullivan heard and sustained the motions to amend, ruling that the grand jury was void ab initio. The state has appealed from these three adverse rulings: Judge Sullivan’s order dismissing the indictments, Judge McNalley’s ruling on the affidavits of prejudice and Judge Sullivan’s final order. Defendants have cross-appealed from prior adverse rulings by Judge Vickers.
Several witnesses testified at a hearing held before Judge Sullivan on the motion to dismiss the indictments because of improper grand jury selection. We summarize that evidence. After the enactment of the petit and grand jurors act of 1971 the judges of the district court of Shawnee county adopted local rule No. 21, which found that Shawnee county had appropriate base information programmed as a part of its computer operations containing names and addresses of all registered voters in the county, and that use of this list would comply with the spirit of the jury selection laws of Kansas, and said list would be used by the judges serving as jury commissioners in securing jurors, the names to be selected at random through the computer program. Prior to adopting this system of jury selection the Shawnee county judges had instructed Mr. Albert Hatch, data processing manager for Shawnee county, to devise a computer program for the selection of jurors from the voter registration rolls. Mr. Hatch checked as to how jurors’ names were selected from voter registration records in Johnson county, Kansas, and in the federal courts in Washington, D. C. Using this experience he developed a formula which was accepted by the Shawnee district judges and used in selecting jurors’ names by computer. The components of the formula were the number of names on the voter registration list, the number of jury lists to be selected, the number of individuals to be placed on each jury list, and, finally, a starting number between zero and one hundred which would be given to Mr. Hatch by a district judge. In practice ten separate jury lists were prepared with 175 names on each list. Under the formula the names on the voter registration list were assigned numbers and placed in the computer. The starting number selected by a judge would be the first juror selected and the starting point of the entire selection of the jury panel. Then the factor derived from the formula was applied. For example, if the factor was 43 then every forty-third person on the voter registration list, using the number selected by a judge as the starting point, would be selected, except the computer would skip over a number flagged because the individual represented by it had previously served as a juror within a particular time. Mr. Hatch’s instructions from the judges were to select names for the jury list at random.
Mr. Hatch testified that in September, 1973, when the names were selected from which the grand jury was impaneled in the instant case there were 75,814 persons on the voter registration lists (later corrected to 83,145); at the same time there were about 50,000 more names on the census and enumeration rolls; that under his definition of random there was not a true random selection of jurors by the method used; a true random selection is not possible by machine, random selection being defined as a system wherein each item within the group has the same chance of being selected as every other item.
Honorable Michael A. Barbara, judge of division No. 2 of the Shawnee district court, testified that in promulgating rule No. 21 the Shawnee judges interpreted K. S. A. 43-163 to provide that if a computer was used instead of a jury wheel, the base information could be an alternate source of names such as voter registration lists as long as the spirit of the law was followed; that voter registration lists were the source used in selecting jurors in federal courts; there was no intent to exclude anyone or any identifiable segment of people from jury service; it was the jury commissioners’ desire to secure random selection and it was believed that was accomplished in using voter registration lists which were as current as any lists of persons which could be obtained; trouble was experienced under the old system using either enumeration or property tax rolls in obtaining names of persons who were currently residing at the addresses stated. Judge Barbara further testified that as a result of the challenge in this case to the jury selection method prescribed in rule No. 21, out of an abundance of caution and to avoid the possibility of further appellate litigation, Mr. Hatch had been directed to use the census list as well in compiling jury lists. Judge Vickers testified in similar vein, iterating it was thought the base information could be either the voter registration rolls or the census list. He stated it would have been unnecessary for the legislature to mention voter registration lists if alternative use was not intended since the census list necessarily includes those on the voter registration records.
Dr. Herman Lujan, associate professor of political science at Kansas University, testified that certain groups tended not to register to vote and that these groups normally included those from minority ethnic backgrounds, women, persons from lower income levels, those less educated, the very aged, and the eighteen to twenty-five age group. His conclusion, based on studies made in Kansas and elsewhere, was that a jury selection list based only on voter registration records tended to result in a disproportionate representation of the classes mentioned. Dr. Lujan in effect acknowledged that these classes were represented in substantial numbers on voter registration records albeit disproportionately.
Thomas Morrill, director of data processing for the Colorado judicial department, testified that the jury selection system used by Shawnee county did not provide a jury selected at random from a fair cross section of the community since certain persons were systematically excluded; in Colorado the base information for jury selection is city directories and automobile driver’s license lists supplemented by voter registration rolls, which discriminates some against rural areas not having city directories; random selection can be made by not placing the names in the computer in alphabetical order.
John Oliver, instructor in mathematics and assistant director of the computer center at Washburn University, likewise testified that Shawnee county’s jury selection system was not random. His definition of “random” meant that “any person on the list from which the jury is to be selected is equally likely to be selected.” His objection was that the formula resulted in an arbitrary number and once that number is chosen as the starting point then the names thereafter selected automatically fall into place by reason of their numerical position on the entire list, to the exclusion of all others. He further testified a completely random system could be set up for Shawnee county’s computer.
In his ruling sustaining the motions to dismiss the indictments Judge Sullivan made certain findings of fact in accord with the testimony just narrated. He further ruled that irrespective of lack of intent the selection of jurors under the Shawnee district court rule resulted in the exclusion from jury service of a substantial and identifiable group of citizens, namely approximately forty percent of the qualified electors of Shawnee county and therefore the defendants were denied their statutory right to have a jury array selected at random from a fair cross section of the community. Judge Sullivan also used language in his memorandum opinion indicating that defendants’ constitutional rights may have been violated by the selection method used.
Two related issues are involved in the state’s appeal from the order dismissing the indictments: Whether our statutory scheme of jury selection was violated in the method used here, and whether that method violated defendants’ rights to trial by an impartial jury under the sixth and fourteenth amendments to the federal constitution and bill of rights Nos. 5, 10 and 18 to the Kansas constitution.
Note should first be made of pertinent provision of that which has been referred to as the petit and grand jurors act of 1971. K. S. A. 43-155 declares the public policy of this state is “that all litigants entitled to trial by jury shall have the right to juries selected at random from a fair cross section of the community in the district wherein the court convenes; and that all citizens shall have the opportunity to be considered for service on juries in the district courts of Kansas.” K. S. A. 43-156 provides that no person shall be excluded from service as a grand or petit juror in the district courts of Kansas on account of race, color, religion, sex, national origin or economic status; further that every juror, grand and petit, shall be a citizen of the state, resident of the county and possess the qualifications of an elector.
The manner of preparation of jury lists is provided in K. S. A. 43-162 as follows:
“From and after January 1, 1972, all jury lists shall be prepared in accordance with the provisions of this act. Jury commissioners shall cause to be prepared under their supervision a list of persons qualified as jurors in each county. Jury lists shall be prepared from voter registration records and enumeration or census records of the county in accordance with the intent and purposes of this act. The jury list of each county shall be prepared and ready for use on January 1, 1972, and annually thereafter the commissioners shall cause the jury list of each county to be revised and updated by adding names of qualified jurors and removing names of those who have died, removed from the county, or who have otherwise become disqualified. For the purposes of preparation and revision of jury lists, commissioners shall have access to the voter registration and enumeration or census records of each county.” (Emphasis supplied.)
K. S, A. 43-163 details the maimer of affixing names to cards for mixing in the jury wheel prior to selection and then provides the following alternative to the use of the jury wheel:
“. . . In the event that a county has appropriate base information programmed as a part of its computer operations so that it might comply with the spirit of the jury selection laws of Kansas the jury commissioners may by local rule provide alternate methods for securing jury panels directly from the computer without the necessity of drawing names or cards from a wheel manually.”
The state contends the legislature obviously intended that voter registration records might be used as an alternative method of selecting jurors or it would not have mentioned them; that random selection was in fact made within “the spirit of the law” but in any event the statutory language is directory in nature and absent fraud or corruption in the method of selection used challenge will not lie for any irregularity; no purposeful discrimination was shown by the jury commissioners in choosing the method of jury selection and none existed; no identifiable class of persons entitled to consideration was excluded nor is there any requirement for proportionate representation of any group on a jury list; and there was no showing of prejudice to any defendant.
Defendants counter that both statutory and constitutional rights were violated by the method of jury selection used; the provisions of K. S. A. 43-162 are mandatory and not directory; the jury selection was not made “at random”, as found by the trial court under the evidence; and defendants were prejudiced by the method used in that identifiable classes of persons were excluded.
The Shawnee district judges in their capacity as jury commissioners promulgated rule No. 21 which provided for the use of a computer in the selection of jury panels from the list of registered voters in the county. The base information programmed into the computer consisted solely of this list which concededly is not in strict accord with the language of K. S. A. 43-162 stating that “. . . Jury lists shall be prepared from voter registration records and enumeration or census records of the county. . . .” But is such preparation “in accordance with the intent and purposes of this act” as further stated in that statute, does a list of registered voters in the county constitute appropriate base information in compliance with “the spirit of the jury selection laws of Kansas” (43-163) and does the method of selection result in a jury “selected at random from a fair cross section of the community in the district wherein the court convenes” (43-155)?
In construing our statutes on jury selection prior to passage of our present enactment this court held that they were directory in nature and not mandatory, and absent corruption, serious misconduct or palpable disregard of the law, a defendant may not successfully challenge the jury panel for mere irregularities in its selection process (State v. Stanphill, 206 Kan. 612, 481 P. 2d 998). In State v. Carter, 133 Kan. 718, 3 P. 2d 487, the then applicable statute prescribing duties of those compiling jury lists used the mandatory term “shall”. Notwithstanding such use this court held with respect to alleged irregularity in the method of selection:
“The statute, however, is directory, and a defendant may not cause the panel to be quashed on any ground which does not involve corruption, serious misconduct, or palpable disregard of law. Informalities and irregularities are not enough.” (p. 719.)
See also State v. Them, 207 Kan. 571, 485 P. 2d 1327.
These rules are in accord with those followed elsewhere, expressed in 50 C. J. S., Juries, § 163b. as follows:
“Statutory provisions with regard to making up the jury list ordinarily are held to be merely directory, and errors and irregularities in failing strictly to comply with the provisions which are not prejudicial to the parties do not invalidate the list or furnish any ground for challenging the array. . . .” (p. 889.)
Defendants cite and rely on State v. Jenkins, 32 Kan. 477, 4 Pac. 809, wherein a palpable disregard of the law as to jury selection was found which resulted in the panel being quashed. The names of the jurors placed on the list were taken from the assessment rolls for the year 1883, when they should have been taken from those of the year 1882. The court held the law had been palpably disregarded and a challenge to the array should have been sustained. This court stated:
“The legislature in this state has said that certain persons shall be selected as jurors; the officers required to make the list in this case have said other persons shall be returned as jurors. Therefore there was a substantial departure from the statutory mode in making the list of persons to serve as jurors for 1883. This disregard for the statute cannot be allowed. The requirements of the statute as to the making of a list of persons to serve .as jurors, and the selection of the panel therefrom, are in the nature of a privilege to the accused, and he has the right to insist that there shall be a substantial compliance with the law.” (p. 479.)
In cases decided subsequent to Jenkins distinction between mere irregularity and palpable disregard of the law has been repeatedly made (see cases cited 3 Hatchers Kansas Digest, rev. ed., Juries, §23). In State v. Frazier, 54 Kan. 719, 39 Pac. 819, a challenge to the jury array was made because no list of names of prospective jurors had been returned from the city of Salina and no jurors were drawn from that city. Upon appeal this court distinguished Jenkins in the following manner:
“. . . In that case, no jurors were drawn or summoned from a list made up in accordance with law. In this case, it is not claimed that the jurors in attendance on the court were improperly placed on the list or were persons improperly summoned.” (p. 722.)
The court concluded the error in omitting the names of Salina residents was a mere irregularity which did not impair the defendant’s constitutional rights to an impartial jury. The rules expressed in our decisions under our prior jury selection statutes appear to be sound in principle and we see no reason why they should not be applicable as well to similar situations under our present jury laws.
As a practical matter it may be said K. S. A. 43-162 requires that voter registration lists be used in compiling jury lists and, with respect to the instant case, the jurors in attendance were drawn from those lists. The failure to use also the census or enumeration lists is analogous to the failure in Frazier to use a list containing the names of residents of the city of Salina. For the instant case to fit the palpable disregard of the law standard of Jenkins a complete disregard of our present statute would be required. An example of such complete disregard would be a situation where jury commissioners selected names from some source not mentioned in the statute such as the assessment rolls. Viewing use of voter registration records as the sole source of names for jury selection as a mere irregularity, there is ample support for holding that the irregularity did not invalidate the selection made in this case. However, we think our ultimate decision need not be based on such technical grounds.
The intent of our present legislation is to provide a jury selected from a fair cross section of the community. Such a requirement is fundamental to the jury trial guaranteed by the sixth amendment to the federal constitution (Taylor v. Louisiana, 419 U. S. 522, 42 L. ed. 2d 690, 95 S. Ct. 692).
Our petit and grand jurors act of 1971 has the same policy requirements and is otherwise quite similar to the federal Jury Selection and Service Act of 1968 ( 28 USCS §§ 1861-1866). With slight exception the federal courts hold that selection of jurors from voter registration lists is not statutorily or constitutionally improper. In an annotation at 17 ALR Fed. 590, “Jury Selection Plans” this synopsis of federal law appears:
“The use of either the voter registration lists or the lists of actual voters as the sole source of names of prospective jurors is not a violation of the Act, and is not constitutionally invalid unless there is discrimination in the compilation of such lists.” (p. 608.)
As a general rule a challenge based on alleged discrimination in the selection of a jury necessarily requires a showing that a recognizable identifiable class of persons, otherwise entitled to be jury members, has been purposefully and systematically excluded from jury service (Brown v. Allen, 344 U. S. 443, 97 L. ed. 469, 73 S. Ct. 397).
Defendants here did make a showing that certain groups tended not to register as voters.
In United States v. Lewis, 472 F. 2d 252 (CA3, 1973) it was stated:
. . We likewise hold that a group of persons who choose not to vote do not constitute a ‘cognizable group.’ Further, their non-registration is a result of their own inaction; not a result of affirmative conduct by others to bar their registration. Therefore, while a fairer cross section of the community may have been produced by the use of ‘other sources of names,’ the Plan’s sole reliance on voter registration lists was constitutionally permissible.” (p. 256.)
In United States v. Anzelmo, 319 F. Supp. 1106, it was further stated:
“Congress had both anticipated and rejected the argument that the selection of juries from voter lists would not produce a cross section of the community and would discriminate against nonvoters.
“ ‘In a sense the use of voter lists as the basic source of juror names discriminates against those who have the requisite qualifications for jury service but who do not register to vote. This is not unfair, however', because anyone with minimal qualifications — qualifications that are relevant to jury service— can cause his name to be placed on the lists simply by registering or voting. No economic or social characteristics prevent one who wants to be considered for jury service from having his name placed in the pool from which jurors are selected.’ H. Rept. 1087, U. S. Code Cong, and Adm. News 1968, pp. 1794-1795.” (pp. 1112-1113.)
See also Camp v. United States, 413 F. 2d 419, 421, (CA5, 1969), cert. den. 396 U. S. 968, 24 L. ed. 2d 434, 90 S. Ct. 451, and cases cited therein.
The federal rule that voter registration lists used for the selection of jury panels does not deny a defendant a jury composed of a valid cross section of the community is the same as that applied in our sister states (see for example, People v. Davis, 53 Mich. App. 94, 218 N. W. 2d 787; State v. Fleury,_N. H_, 321 A. 2d 108; State v. Johnson, (1972), 31 Ohio St. 2d 106, 285 N. E. 2d 751; State v. Curry, 262 La. 280, 263 So. 2d 36; People v. McDowell, 27 Cal. App. 3d 864, 104 Cal. Rptr. 181; State v. Gutierrez, 187 Neb. 383, 191 N. W. 2d 164) and we think with good reason. Our own statutes require that every juror shall possess the qualifications of an elector and no complaint is made about that. The underlying requisite for such a person to become registered and thus fully eligible for jury service is not of itself burdensome or unreasonable, nor where one chooses not to register can it be said to be the result of government interference or discrimination based on race, color, religion, sex, national origin or economic status. It has long been settled that the list from which prospective jurors are selected need not be a statistical mirror of the community (Swain v. Alabama, 380 U. S. 202, 13 L. ed. 2d 759, 85 S. Ct. 824). In the light of the foregoing our holding is that the use of voter registration records as the sole source of names of prospective jurors results in juries selected from a fair cross section of the community and is not statutorily or constitutionally invalid.
Defendants further contend the selection here was not a true random one and some witnesses at trial did so conclude based upon a narrow interpretation of the word “random” as used in the world of mathematics. The term is defined in Webster’s Third New International Dictionary in this fashion: “lacking or seeming to lack a regular plan, purpose, or pattern . . . marked by absence of bias . . . having the same probability of occurring as every other member of a set.” The term “at random” receives this definition: “without definite aim, direction, rule, or method: with no specific goal or purpose in view.” (p. 1880.) The evidence did indicate that after the first number on the roster in the computer was chosen the remaining numbers did not all have an equal chance to be selected inasmuch as all selections thereafter were preordained but this simply means that all selections were in effect made by the computer at the same time. From this standpoint the system was not true random with strictest mathematical precision. Despite this, we think the spirit of the law authorizing computer use was met. No one arbitrarily chose which person or persons on the voter registration records would be selected for the jury lists. Neither bias nor purpose tainted the method chosen. The entire jury list as a group was selected at random. The particular selection resulted from use of a factor which was not a constant number and names of the group selected could not have been known in advance. We hold the jury in the case at bar was selected at random from a fair cross section of the community in accord with the intent and purposes of the petit and grand jurors act. No discrimination was shown in the compilation of the voting records and no prejudice could have resulted from the selection made.
Our conclusion that the trial court erred in dismissing the indictments and our consequent reversal of those judgments renders it unnecessary to consider the other two orders from which the state has appealed and we turn to defendants’ cross-appeals from orders made by Judge Vickers.
Defendants contend the trial court erred in denying their motion to dismiss the conspiracy indictment upon the ground the conspiracy statute is constitutionally invalid because it contains more than one subject and a subject not clearly expressed in its title. The proviso cited and relied on is article 2, section 16, of the Kansas constitution which states:
“No bill shall contain more than one subject, which shall be clearly expressed in its title. . . .”
The reason for this clause was explained in State v. Earley, 192 Kan. 144, 386 P. 2d 221:
“The purpose of the title is [to] call attention to the contents of the bill so members of the Legislature and the general public may be fairly informed as to what the Act implies. . . .
“It is not necessary that the title be an index, a synopsis or abstract of the entire Act in all its details. It is sufficient if the title indicates clearly, though in general terms, the scope of the act. . . .
“The more general the language of the title the broader the subject matter of the Act may be, due reference being given to the requirements of Article 2, Section 16, that the subject matter be clearly expressed in the title. . . .” (pp. 149-150.)
The argument asserting constitutional invalidity for violation of the clause cited is not clear but in any event that proviso was not in anywise violated in the enactment in 1969 of our conspiracy statute, K. S. A. 21-3302, as part of our Kansas Criminal Code. The complete title of this bill (SB No. 9) is: “An Act relating to crimes and punishments; establishing a Kansas criminal code; and repealing [named provisions of K. S. A.]” (Laws 1969, Chap. 180). Clearly a statute establishing conspiracy as a crime is embraced within this broad title — were it not so our entire criminal code would have to be declared invalid.
K. S. A. 21-3302 (1) provides:
“A conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by him or by a co-conspirator.”
Perhaps the real thrust of the defendants’ argument here, as nearly as can be gleaned from other authority cited, is that our conspiracy statute is invalid because it violates a rule expressed in Great Lakes Pipe Line Co. v. Wetschensky, 193 Kan. 706, 396 P. 2d 295, as follows:
“A section of a statute which contains such conflicting and contradictory provisions that intelligent application of its terms is not possible, is so uncertain and ambiguous as to be inoperative and void.” (Syl. ¶ 1.)
The short answer to application here of the foregoing rule is that K. S. A. 21-3302 (1) contains no conflicting provisions within itself as was the case in Great Lakes Pipe Line Co. Some contention is also made in this same connection that the proviso “to assist to commit a crime” in our conspiracy statute proscribes the same conduct already covered by our aiding and abetting statute (K. S. A. 21-3205) and it is therefore bad because two subjects are embraced. Not so. Conspiracy is a different crime from aiding and abetting (United States v. Krol, 374 F. 2d 776, cert. den. 389 U. S. 835, 19 L. ed. 2d 97, 88 S. Ct. 46). The crucial distinction between the two for present purposes was tersely expressed in People v. Malotte, 46 Cal. 2d 59, 292 P. 2d 517.
“Conspiracy, however, is not synonymous with aiding or abetting or participating. Conspiracy implies an agreement to commit a crime; to aid and abet requires actual participation in the act constituting the offense.” (pp. 65-66.)
In 15A CJS, Conspiracy, § 35 (1) it is stated:
“[Conspiracy] is an attempt to commit an offense, since its object need not be attained, as discussed infra § 44; it is an enlargement of, but is to be distinguished from, the offense of aiding and abetting the commission of an unlawful act.” (pp. 723-724.)
Our statute includes an agreement “to assist to commit a crime” in its definition of conspiracy. The trial court in its ruling on the matter properly pointed out that “When the emphasis is turned from aiding and abetting to the agreement, which is the essence of conspiracy, it is clear that the statute does not prohibit aiding and abetting, but agreement to aid and abet.”
Defendants contend the court erred in failing to dismiss the indictments on the ground the conspiracy statute is unconstitutionally vague and indefinite as to the requisite element of intent. The test for determining whether a statute is constitutionally void for this reason was recently stated in State v. Conley, 216 Kan. 66, 531 P. 2d 36, as follows:
“The test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process.” (Syl. j[ 2.)
Defendants’ argument here is that the statute fails to require criminal intent with regard to a person who agrees “to assist to commit a crime.” They are apparently urging a construction of the conspiracy statute that intent is not a necessary element of conspiracy. In Morissette v. United States, 342 U. S. 246, 96 L. ed. 288, 72 S. Ct. 240, a landmark case in the area of criminal intent, the federal supreme court distinguished statutory crimes dispensing with the element of intent. Such crimes are generally in the regulatory area involving activities which affect public health, safety and welfare. The ultimate decision in Morissette was that the mere omission of express mention of intent from a federal statute making it a criminal offense to embezzle, steal, purloin or knowingly convert government property will not be construed as eliminating the element of intent from the crime.
As a general rule a specific intent is essential to the crime of conspiracy (16 Am. Jur. 2d, Conspiracy, § 9). The specific intent required divides into two elements: (a) The intent to agree, or conspire, and (b) the intent to commit the offense (Hamo, “Intent in Criminal Conspiracy” [1941], 89 U. Pa. L. Rev. 624, 631). Defendants concede that the act of conspiring being volitional includes within itself the intent to agree (“Developments in the Law — Criminal Conspiracy,” 72 Harv. L. Rev. 920, 935). They urge that the second intent necessary is not provided for in the present statute. In 1, Anderson, Wharton’s Criminal Law and Procedure, § 85, it is stated:
“Analytically a dual mental state is present in the ease of conspiracy. There is both (1) the intent or agreement of the parties to act together, and (2) the intent to commit an unlawful act or to commit a lawful act by unlawful means, or to do an act jointly which the law makes illegal when done by two or more persons. . . . Because of the obvious practical difficulty of proving the existence of the two distinct intents, the courts generally do not make any distinction between them. Because the intent to conspire is also a criminal act, there is also little distinction made between intent and act, except as reference is made to an overt act in addition to the formation of the conspiracy agreement.” (p. 183.)
Defendants’ basic proposition is that the conspiracy statute does not require an intent and one may unintentionally violate the statute’s proscription and be found guilty.
K. S. A. 21-3302 provides that a conspiracy is an agreement with another person to commit a crime or to assist to commit a crime. The essence is the agreement to commit a crime, not simply to commit a particular act, as to drive an automobile at a certain time and place. Clearly a mental state is contemplated. An individual might agree to perform a certain act but it is difficult to conceive how one could unintentionally agree to commit a crime. K. S. A. 21-3201 provides that criminal intent is an essential ele ment of every crime and may be established by proof that the conduct of the accused was willful. Willful conduct is defined as knowing and intentional and not accidental. Therefore, an individual could not be found to have unintentionally violated the statute. Full protection against this occurrence will be afforded at trial by instructions to the jury on the factual issue of intent. K. S. A. 21-3302 is not unconstitutionally vague and indefinite.
Defendants contend the trial court erred in overruling their motions to dismiss the conspiracy indictment for the reason it failed to state an offense and was impermissibly vague. The indictment charged that from on or about December, 1971, to on or about April, 1973, in Shawnee county, Kansas, and elsewhere the eighteen individuals and five corporations hereinbefore named “. . . did unlawfully and feloniously combine, conspire, confederate and agree together and with each other, and with Frank Fisher, Kenneth McLain and Robert Rrandt, who are co-conspirators, but are not named as defendants herein, and with diverse other persons whose names are to the Grand Jury unknown, to commit the crime of bribery as defined in K. S. A. 1973 Supp. 21-3901 by bribing Richard Malloy, a public employee, and that overt acts in furtherance of the conspiracy and to effect the object thereof were committed, to wit. . . .” The indictment then narrated in considerable detail forty-six separately numbered activities by and between the twenty-three defendants, Richard Malloy and the three named but unindicted co-conspirators in which at certain times and places plans were discussed, made and carried out whereby defendants agreed to and did contribute in varying proportions to Richard Malloy, to be used as campaign funds on behalf of the incumbent Governor of Kansas in his bid for reelection in 1972, payments in the sum of $30,000, being six percent of the fee in architectural contracts for certain proposed work at the Kansas University Medical Center, such payments to Malloy to be made in return for the awarding of these contracts to one of the conspirators as associate architect on the project.
First of all, it may be noted the indictment charges the conspiracy in the language of the statute. K. S. A. 22-3201 (2) provides:
“The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient. . . .”
In United States v. Salazar, 485 F. 2d 1272, the requisites for an indictment were discussed:
. . It has long been settled that an indictment is adequate so long as it contains the elements of the offense, sufficiently apprises the defendant of what he must be prepared to meet, and is detailed enough to assure against double jeopardy. [Citations.] Under this test we have consistently sustained indictments which track the language of a statute and, in addition, do little more than state time and place in approximate terms.” (p. 1277.)
In addition to the general statements contained in the formal part of the indictment, the overt acts stated in the indictment supply further factual detail with regard to the conspiracy. In essence it was stated that each defendant agreed with the others and the unindicted co-conspirators to commit the crime of bribery by bribing Malloy, a public employee, the bribe to be $30,000 or six percent of the contract fee for architectural services in connection with a specific proposed project, and to be paid in return for the awarding of the architectural contract to one of the members of the conspiring group. Since an overt act is part of the offense and is required to be alleged, certainly the overt acts may be used to clarify the remainder of the indictment. This reading of a count of conspiracy as a whole is in accord with modern practice in reading indictments. See United States v. Kahn, 381 F. 2d 824, cert. den. 389 U. S. 1015, 19 L. ed. 2d 661, 88 S. Ct. 591. In United States v. Borland, 309 F. Supp. 280, it was further stated:
“. . . In considering the sufficiency of the statement of the objects of the conspiracy, therefore, reference may be made to the overt acts alleged.” (p. 289.)
Defendants’ main complaint here is that the indictment did not specify with sufficient particularity the object crime of bribery. The general rule on the subject is stated in 16 Am. Jur. 2d, Conspiracy, § 23, thus:
“Allegations in an indictment for conspiracy are sufficient if the unlawful purpose of the conspiracy clearly appears. The object of the conspiracy need not be stated with the degree of detail that would be required in an indictment charging the substantive offense. If the object is the commission of a crime, it is sufficient to designate the crime by its common-law name, or in the words of a statute defining it.” (pp. 139-140.)
In Williamson v. United States, 207 U. S. 425, 52 L. ed 278, 28 S. Ct. 163, the indictment alleged conspiracy to suborn perjury. It was there stated:
“But even on the supposition that a valid indictment may be framed charging a conspiracy to commit subornation of perjury, the indictment in question, it is urged, is fatally defective by reason of an omission to directly particularize various elements, claimed to be essential to constitute the offense of perjury and other elements necessary to be averred in respect to the alleged suborners.
“This is based upon the assumption that an indictment alleging a conspiracy to suborn perjury must describe not only the conspiracy relied upon, but also must, with technical precision, state all the elements essential to the commission of the crimes of subornation of perjury and perjury, which it is alleged is not done in the indictment under consideration. But in a charge of conspiracy the conspiracy is the gist of the crime, and certainty, to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is requisite in stating the object of the conspiracy. . . .” (p. 447.)
This ruling was expanded somewhat in Wong Tai v. United States, 273 U. S. 77, 71 L. ed. 545, 47 S. Ct. 300, wherein it was stated:
“It is well settled that in an indictment for conspiring to commit an offense —in which the conspiracy is the gist of the crime — it is not necessary to allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy, Williamson v. United States, 207 U. S. 425, 447, or to state such object with the detail which would be required in an indictment for committing the substantive offense.” (p. 81.)
In Glasser v. United States, 315 U. S. 60, 86 L. ed. 680, 62 S. Ct. 457, it was further stated:
“The demurrers to the indictment were properly overruled. The indictment is sufficiently definite to inform petitioners of the charges against them. It shows ‘certainty, to a common intent.’ Williamson v. United States, 207 U. S. 425, 447. The particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of a conspiracy, for which petitioners contend, is not essential to an indictment. [Citations.] Such specificity of detail falls rather within the scope of a bill of particulars, which petitioners requested and received.” (p. 66.)
The foregoing trilogy of cases forms the basis for later decisions relied on by the state to support its position that in an indictment for conspiracy to commit a criminal offense, the elements of that offense need not be stated with the same particularity as would be required in an indictment for violation of the substantive offense.
In Helser v. People, 100 Colo. 371, 68 P. 2d 543, it was stated:
“. . . The reason that the objective crime may be pleaded in the indictment without particularity is, that the crime of conspiracy does not consist in the accomplishment of the unlawful object, or in doing the acts by means of which the desired end is to be attained, but the essence of the offense is the unlawful combination and agreement for any purpose that is unlawful or criminal.” (p. 377.)
In the present case the indictment charges the object crime in the following language: . . to commit the crime of bribery as defined in K. S. A. 1973 Supp. 21-3901 by bribing Richard Malloy, a public employee. . . .”
Although defendants recognize that the elements of the object crime need not be stated with the same particularity as required in an indictment for violation of the substantive offense, nonetheless, they contend that the present indictment failed to meet the standard necessary to apprise them of the charges against them. They place primary reliance upon State v. Buttner, 180 Neb. 529, 143 N. W. 2d 907, which involved a conspiracy to bribe a city councilman. The conspiracy indictment was held invalid because, among other things, it failed properly to allege as the object of the conspiracy that the councilman was to accept the bribe with the intent proscribed by the statute. Additionally the court noted the indictment failed to name the specific councilman who was to be bribed. The latter fact makes the indictment in Buttner more suspect than in the present case wherein the individual is definitely named. Moreover, in Buttner two members of the court dissented in an opinion solidly fortified with authority contrary to the majority ruling.
Defendants requested and were furnished a bill of particulars describing the powers and duties of Malloy as a public employee and the consideration to be given him to which he was not legally entitled. However, a bill of particulars cannot save an otherwise invalid indictment (Russell v. United States, 369 U. S. 749, 8 L. ed. 2d 240, 82 S. Ct. 1038). Nonetheless, as indicated, in considering the sufficiency of the objects of the conspiracy reference may be made to the overt acts alleged and every element of the substantive offense need not be alleged within the conspiracy count. The crux of the matter is that the conspiracy is the crime charged. Certainty to a common intent, sufficient to identify the offense which the defendants conspired to commit, is all that is requisite in stating the object of the conspiracy (Williamson v. United States, supra). The indictment apprised defendants that the object crime was bribery of Richard Malloy, a public employee. The overt acts further defined the charge. The particularity of time, place, circumstances, causes, etc., falls within the scope of a bill of particulars. Our holding is that the indictment sufficiently apprised defendants of the charges they must be prepared to meet and was detailed enough to assure against double jeopardy.
A further reason advanced by defendants for dismissal of the conspiracy indictment is that it failed properly to charge an offense because Richard Malloy, the alleged taker of the bribe, was also a member of the conspiracy, and bribery is a crime requiring a concert of parties which precludes a conspiracy indictment where both the giver and the taker of the bribe are members of the conspiracy, as held in United States v. Dietrich, 126 Fed. 664 and United States v. Sager, 49 F. 2d 725. These two decisions enunciate a principle commonly referred to as Wharton s Rule, stated in 1 Anderson, Wharton’s Criminal Law and Procedure, § 89, as follows:
“An agreement by two persons to commit a particular crime cannot be prosecuted as a conspiracy when the crime is of such a nature as to necessarily require the participation of two persons for its commission. . . .” (p. 191.)
The classic examples of Wharton’s Rule offenses are adultery, incest, bigamy and dueling. The rationale given for the rule is that where the substantive offense itself requires the concerted action of the parties, the conspiracy between the parties to commit the offense adds nothing and is not indictable as a separate offense (State v. Aircraft Supplies, Inc., 45 N. J. Super. 110, 131 A. 2d 571). In In re Vickers, 371 Mich. 114, 123 N. W. 2d 253, it was stated with respect to an offense involving concert of action between two persons:
“. . . the immediate effect of consummation reaching only the participants, as also in respect to adultery, bigamy, incest, or dueling, in which a charge of conspiracy to commit the offense will not lie against the 2 participants. This is because the conspiracy to commit them is in such close connection with the objective offense as to be inseparable from them.” (p. 117.)
Traditionally, conspiracy and the completed substantive offense have been considered to be distinct and separate crimes so that conspiracy to commit an offense and the subsequent commission of that crime normally do not merge into a single punishable act (Iannelli v. United States, 420 U. S. 770, 43 L. ed. 2d 616, 95 S. Ct. 1284; 1 Anderson, Wharton’s Criminal Law and Procedure, § 87). In Iannelli it was stated:
“. . . the Rule [Wharton’s] currently stands as an exception to the general principle that a conspiracy and the substantive offense that is its immediate end do not merge upon proof of the latter. . . .
“This Court’s prior decisions indicate that the broadly formulated Wharton’s Rule does not rest on principles of double jeopardy. [Citations.] Instead, it has current vitality only as a judicial presumption, to be applied in the absence of legislative intent to the contrary. The classic Wharton’s Rule offenses— adultery, incest, bigamy, duelling — are crimes that are characterized by the general congruence of the agreement and the completed substantive offense. The parties to the agreement are the only persons who participate in commission of the substantive offense, and the immediate consequences of the crime rest on the parties themselves rather than on society at large. [Citations.] Finally, the agreement that attends the substantive offense does not appear likely to pose the distinct kinds of threats to society that the law of conspiracy seeks to avert. It cannot, for example, readily be assumed that an agreement to commit an offense of this nature will produce agreements to engage in a more general pattern of criminal conduct.” (pp. 781-784.)
Thus, the rule is applicable only to offenses that require concerted action. In both Dietrich, supra, and Sager, supra, it was held the substantive offense of bribery required a concert of action between the giver and taker of the bribe before the crime could be committed. Therefore, the rule was held applicable and a conspiracy indictment was improper.
There are recognized exceptions to Wharton s Rule. It has been held the rule does not apply when the substantive offense could be committed by one of the conspirators alone (1 Anderson, Wharton’s Criminal Law and Procedure, § 89, p. 192). Another exception applies in the case in which more people participate in the conspiracy than are necessary to commit the substantive offense. For example, although under the rule two persons who commit adultery cannot be prosecuted for that offense and conspiracy to commit it, the exception would permit the conspiracy charge where a third party had conspired with the principals to encourage commission of the substantive offense (1 Anderson, Wharton’s Criminal Law and Procedure, § 89, p. 193).
It appears that both these exceptions are applicable here. The indictment indicates that certain individuals named in the conspiracy were neither givers nor takers of the alleged bribe. Malloy was not named as a participant in the conspiracy itself but rather was named as the object of certain overt acts committed by the co-conspirators, some of whom were givers and thus essential parties to the crime of bribery and some of whom were not givers and thus were not essential parties to the crime of bribery, in furtherance of their conspiracy to bribe him. In United States v. Cor alio, 281 F. Supp. 24, the defendants were charged with conspiracy, because of alleged attempted bribery, to violate a statute making it an offense to travel in interstate or foreign commerce or to use any facility in that commerce with the intent of furthering an unlawful that the indictment failed to charge an offense. The contention was activity. The defendants filed a motion to dismiss on the ground based on the authority of Sager. The court stated in pertinent part:
“The only givers alleged among the conspirators were to be Fried and S. T. Grand, Inc. But the conspiracy is alleged to have included persons who were neither givers nor takers: Itkin, Motto, Rappaport, and the movant Corallo; their parts are not specified in detail but it is clear that they were to unite their efforts to accomplish the unlawful object. This is a classic charge of conspiracy, in no way affected by any cases cited to show it as defective.
Because the conspiracy included persons whose participation was not essential to the offense of bribery, the principle of such cases as United States v. Sager, 49 F. 2d 725, 727-729 (2d Cir. 1931) does not apply. ‘The principle is . . . limited to cases where the essential participants are the only conspirators. Where those whose cooperation is necessary for the commission of the substantive crime conspire with another person to commit the offense, all are guilty of conspiracy.’ 1 Wharton’s Criminal Law and Procedure (1957 ed.) 193.” (p. 29.)
See also, United States v. Smolin, 182 F. 2d 782; United States v. Cogan, 266 F. Supp. 374; People v. Incerto, 180 Colo. 366, 505 P. 2d 1309.
Additionally, in Kansas the" substantive crime of bribery can be committed by one person. K. S. A. 21-3901 defines bribery to include “offering” or “requesting” improper benefits, etc. Thus the mere offer or solicitation of a bribe is violative of the statute and a concert of action is unnecessary to commit the substantive offense of bribery. In People v. Incerto, supra, it was stated:
“. . . The substantive offense of bribery of a judge, 1967 Perm. Supp. C. R. S. 1963, 40-7-5 (repealed 1971), can, in fact, be committed by one person. Prior to 1967, the statute required both ‘giving’ and ‘receiving’ as elements of the offense of bribery. Therefore, the participation of two people was necessary. Two people were also necessary under the bribery statute which we reviewed in People v. Wettengel, supra. See Compiled Laws of Colorado 1921 § 6781. The legislature, however, has amended our bribery statute, and the revision now makes an ‘offer to give’ or an ‘offer to receive’ a bribe a crime under the statute.” (pp. 371, 372.)
In United States v. Cogan, supra, it was stated:
“An offer does not require concert of action; it is an action capable of performance unilaterally.” (p. 377.)
The distinction was even made in United States v. Dietrich, supra:
“In this respect, agreeing to receive a bribe from another and agreeing to give one are unlike soliciting or offering a bribe, because the solicitation or offer may be the act of a single person and may occur without any concurrent act of another.” (p. 667.)
An indictment for conspiracy to bribe is proper under the factual situation alleged and Wharton’s Rule is inapplicable.
Defendants also urge the trial court erred in not dismissing the conspiracy indictment on the ground it is duplicitous. They contend the indictment charges two or three conspiracies unrelated to the charge of bribing Malloy. We think there is no merit to this contention.
As a general rule an indictment must not in the same count charge the accused with the commission of two or more distinct substantive offenses and if it does so it is duplicitous (42 CJS, Indictments and Informations, § 162). The vice of duplicity is that the jury is unable to convict of one offense and acquit of another offense where both are contained in the same count (1 Wright, Federal Practice and Procedure, Criminal § 142, p. 311).
In United States v. Wenzel, 311 F. 2d 164, an indictment charged eleven persons with conspiracy to violate statutes relating to possession, sale and utterance of counterfeit money. It was asserted the evidence disclosed several conspiracies rather than the single conspiracy charged in the indictment. The court there stated:
. .' Reference is made to various meetings or activities in each of which some, but not all, of the conspirators participated; and the argument apparently is that each of these represented a separate conspiracy comprising only the individuals present or participating. There is plainly no merit in this. It is fundamental that it is not necessary that every act undertaken in carrying out the object of a conspiracy should be participated in by every member of the conspiring group. In carrying out the purpose of a conspiracy it will be found that in practically every case different groups played different parts. To unite them in a single conspiracy it is only necessary that the activities of each individual or group be directed toward accomplishing a single criminal objective.” (p. 167.)
In United States v. Crummer, 151 F. 2d 958, cert. den. 327 U. S. 785, 90 L. ed. 1012, 66 S. Ct. 704, it was stated:
“Coming to the question whether the indictment was duplicitous, it is well settled that duplicity in criminal pleading is the joinder of two or more separate and distinct offenses in the same count in an indictment or information, not the charging of a single offense involving a multiplicity of ways and means of action and procedure.” (p. 963.)
Defendants place sole reliance upon the case of Kotteakos v. United States, 328 U. S. 750, 90 L. ed. 1557, 66 S. Ct. 1239. There the indictment charged thirty-two defendants with conspiracy to obtain loans under the National Housing Act on false and fraudulent applications. Aside from the fact that one defendant, Brown, had been the instrument in each instance for obtaining the loans, in many cases the other defendants did not have any relationship with one another. There were at least eight separate groups which had no connection with any others although all dealt independently with Brown as their agent. There were separate loans to separate people for separate purposes. It was held there must be more relationship between the parties than a common agent and that a common object was absent. In the present case there is a single common criminal objective charged in the indictment — the kickback contribution to Malloy in return for award of the architectural contract. The indictment charges only one conspiracy and this is not changed by the assertion of more than one means used to accomplish the object (United States v. Johnson, 337 F. 2d 180; United States v. Perez, 489 F. 2d 51; United States v. Simone, 495 F. 2d 752).
Certain of the defendants have urged that as ti> them the indictment should have been dismissed because neither the agreement nor any overt act in which they participated is alleged to have been committed in Shawnee county. To the contrary, the indictment specifically alleges that the conspiratorial agreement, in which the complaining defendants took part, occurred in Shawnee county. Also, the indictment alleged that ten of the separately numbered overt acts occurred in Shawnee county. It is immaterial that the particular complainants may never have entered Shawnee county during the existence of the conspiracy. The applicable rule was expressed in Downing v. United States, 348 F. 2d 594, cert. den. 382 U. S. 901, 15 L. ed. 2d 155, 86 S. Ct. 235, in this fashion:
“The contentions of the appellant are foreclosed both by statute, 18 U. S. C. A. § 3237, and by court decisions. A conspiracy may be prosecuted in the district where it was formed or in any district in which an overt act was committed in furtherance of its objects. [Citations.] The place where the conspiracy was formed is immaterial if at least one of the overt acts alleged and proved took place within the district where the defendant is tried. [Citations.] It is not essential that the defendant ever enter the state or district of trial. . . .” (p. 598.)
Out own jurisdictional statute, K. S. A. 21-3104, provides:
“Territorial applicability. (1) A person is subject to prosecution and punishment under the law of this state if:
“(a) He commits a crime wholly or partly within this state; or
“(b) Being outside the state, he counsels, aids, abets, or conspires with another to commit a crime within this state; or
“(2) An offense is committed partly within this state if either an act which is a constituent and material element of the offense, or the proximate result of such act, occurs within the state . .
and our venue statute, K. S. A. 22-2603, states:
“Where two or more acts are requisite to the commission of any crime and such acts occur in different counties the prosecution may be in any county in which any of such acts occur.”
Thus it seems clear the trial court had authority to try all the defendants.
Defendant Malloy contends the trial court erred in denying his motion to dismiss the indictment against him bn the ground our bribery statute is unconstitutionally vague and indefinite. K. S. A. 21-3901 provides:
“Bribery. Bribery is:
“(a) Offering, giving or promising to give, directly or indirectly, to any public officer or public employee any benefit, reward or consideration to which he is not legally entitled with intent thereby to influence such officer or employee with respect to the performance of his powers or duties as such officer or employee; or
“(b) The act of a public officer or public employee, in requesting, receiving or agreeing to receive, directly or indirectly, any benefit, reward or consideration given with intent that he will be so influenced. . . .”
Malloy is charged as a public employee under subsection (b). His complaint is that this portion of the statute fails to indicate the intent of the influence proscribed. The contention lacks merit. Related statutory provisions are to be considered together and in their entirety in determining legislative intent (Welch v. Board of Education, 212 Kan. 697, Syl. ¶ 2, 512 P. 2d 358). Subsection (a) of the bribery statute prescribes this intent for the offeror of a bribe: . . with intent thereby to influence such officer or employee;” subsection (b) then states “with intent that he [a public officer or employee] will be so influenced.” Even the most cursory reading of the statute reveals that the intent in subsection (b) was meant to be the same as that in (a).
Defendant Malloy next asserts that the phrase in the bribery statute “with intent thereby to influence such officer or employee with respect to the performance of his powers or duties as such officer or employee” is unconstitutionally vague. He argues the statute could be interpreted to proscribe offering money to a public employee provided the latter agreed to do a better job, work longer hours, and the like.
The statute denounces offering to a public officer or employee some benefit to which he is not lawfully entitled. The state argues, and we think correctly so, that the legislature intended to proscribe all such transactions irrespective of whether the individual making the offer reaps any benefit. In United States v. Irwin, 354 F. 2d 192, cert. den. 383 U. S. 967, 16 L. ed. 2d 308, 86 S. Ct. 1272, a similar federal statute was attacked upon the same ground. The court there stated:
“The awarding of gifts thus related to an employee’s official acts is an evil in itself, even though the donor does not corruptly intend to influence the employee’s official acts, because it tends, subtly or otherwise, to bring about preferential treatment by Government officials or employees, consciously or unconsciously, for those who give gifts as distinguished from those who do not. . . . The iniquity of the procuring of public officials, be it intentional or unintentional, is so fatally destructive to good government that a statute designed to remove the temptation for a public official to give preferment to one member of the public over another, by prohibiting all gifts ‘for or because of any official act,’ is a reasonable and proper means of insuring the integrity, fairness and impartiality of the administration of the law. . . .
“The appellant seeks to prove his point by suggesting hypothetical cases taken from the peripheral areas of the statute’s scope; but he can derive no assistance from that source. He must show that, as applied to his own case, the statute was so vague and uncertain that he was not presented with an ‘ascertainable standard of guilt.’” (p. 196.)
We think the indictment sufficiently informed the defendant of the nature of the charge against him.
Finally, defendants assert the trial court erred in denying their request for inspection and copying of all statements secured by the state as a result of inquisitions held pursuant to K. S. A. 22-3101, both before and after the indictments were returned, and of other documents in the state’s files which are favorable to defendants. The trial court did grant limited discovery of certain matters as requested but denied the blanket request for inspection of the entire prosecution files in order to determine if there was any exculpatory material. Rather than allow defendants unlimited inspection the prosecution submitted the files to the trial judge for in camera inspection. After such inspection the judge held the files contained nothing of an exculpatory nature. Defendants assert a right to inspect the material personally to make their own determination as to its exculpatory nature.
The prosecuting attorney is under a positive duty to disclose to the defense all exculpatory evidence (Brady v. Maryland, 373 U. S. 83, 10 L. ed. 2d 215, 83 S. Ct. 1194). However, this does not entitle the defendant to unlimited discovery of the state’s files (Williams v. Dutton, 400 F. 2d 797, cert. den. 393 U. S. 1105, 21 L. ed. 2d 799, 89 S. Ct. 908, appeal after remand 431 F. 2d 70, adhered to 441 F. 2d 657, vacated in part 408 U. S. 938, 33 L. ed. 2d 758, 92 S. Ct. 2867, rehearing denied 409 U. S. 898, 34 L. ed. 2d 164, 93 S. Ct. 179). In 2 Wharton s Criminal Procedure, 12th ed., § 381, it is stated:
“Absent a statute providing otherwise, the defendant is not entitled, as a matter of right, to the discovery or inspection of evidence in the possession of the prosecution. Whether, in a particular case, discovery should be allowed is a question for the trial judge in his discretion to resolve. In order to qualify for discovery, the defendant must make a request for the evidence sought, and the request must be timely. The defendant must show that the evidence requested is in the possession or control of the prosecution, and that it is relevant, or material to the preparation of his defense. The mere entertaining of a hope that something of aid may be discovered is not sufficient.” (pp. 361-368.)
Where the prosecution refuses a request for inspection resort may be had to in camera inspection by the court to determine whether the requested information is materially favorable to the defendant (United States v. Quinn, 364 F. Supp. 432).
In an annotation in 7 ALR 3d 8 entitled “Discovery — Prosecution’s Evidence”, it is stated in § 7:
“The defendant must show some better cause for inspection than a mere desire for all information which has been obtained by the prosecution in its investigation of the crime. The production of the prosecution’s evidence is not allowed to the defendant for exploratory purposes or for the purpose of prying into the prosecution’s preparation for trial. The defendant has no right to invoke the means of examining the prosecution’s evidence merely in the hope that something may turn up to aid him. A blanket request for production of the prosecution’s evidence will not be granted. The defendant’s motion for production of the prosecution’s evidence must be based on facts, and not on conclusions or mere surmise and conjecture.” (pp. 50-51.)
Defendants were unable to specify what material in the prosecution files was exculpatory. They made the general assertion that in the files there undoubtedly were items of evidence favorable to some of them. Such a blanket assertion fails to justify inspection. Moreover, the court conducted an in camera inspection of the material which protected the defendants from dependence on the benevolence of the prosecutor in determining whether there was any favorable information in the files.
Additionally, K. S. A. 22-3213 provides that no statement of a prospective state witness shall be subject to inspection until the witness has testified at the preliminary hearing or on direct examination at trial. The present matter has not reached either of the foregoing stages. Thus the request for inspection as to statements of prospective state witnesses was premature.
ments obtained after return of the indictments in order to guard
Defendants further assert they need to inspect inquisition state- against abuse of the inquisition process. This request for inspection must fail for the reason previously stated, i. e., lack of specificity of material sought. Abuse of discretion in the rulings complained of has not been shown.
The judgments dismissing the indictments are reversed. The orders challenged by way of cross-appeal are affirmed and the cases are remanded to the trial court for further proceedings.
APPROVED BY THE COURT
Fromme, J., not participating. | [
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Per Curiam:
Plaintiff-appellant, a resident of Derby, Kansas, brings this action for damages against defendants, claiming they conspired to and did interfere with his plumbing business.
Plaintiff answered interrogatories and gave his deposition wherein he claimed the defendants, four of whom were city officials of Derby, refused to give him the standard master plumber’s test; harassed his customers, employees and suppliers; and caused him to be falsely arrested on three occasions. Defendants moved for summary judgment contending no genuine issues of material fact existed. Defendants’ motion was sustained.
In Ebert v. Mussett, 214 Kan. 62, 519 P. 2d 687, the rule governing the propriety of summary judgments was stated as follows:
“. . . In considering a motion for summary judgment, the court should not attempt to determine factual issues, but should search the record to determine whether factual issues do exist. Where there is a reasonable possibility of their existence, summary judgment will not lie. The court should give to the party against whom summary judgment is sought the benefit of all inferences that may be drawn from the facts under consideration. (Lawrence v. Deemy, 204 Kan. 299, 461 P. 2d 770.)” (p. 65.)
Applying the above stated rule to the instant facts, we conclude there is a reasonable possibility that factual issues did exist and the motion for summary judgment should have been denied.
The judgment is reversed and the cause is remanded for further proceedings.
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The opinion of the court was delivered by
Schhoeder, J.:
This action is brought by The Seaman School District Teachers’ Association of Shawnee County, Kansas, (plaintiff-appellant) to obtain an order of mandamus and injunction enjoining and restraining The Board of Education of Seaman Unified School District No. 345 (defendant-appellee) from unilaterally issuing individual contracts of employment to certified employees of the defendant and to require the defendant to return to the negotiating table and for damages, attorneys’ fees and costs pursuant to K. S. A. 72-5413, et seq.
During the school year 1972-1973, the plaintiff was the exclusive representative of the professional employees, less administrators, of the defendant pursuant to K. S. A. 72-5416. On December 1, 1972, the plaintiff and defendant gave notice to each other of their desire to negotiate an agreement on certain items for the 1973-1974 school year.
In the month of December 1972 the parties had three meetings for the purpose of reaching a procedural agreement. Unable to agree, they proceeded to negotiate on substantive proposals. Thereafter, the parties met together for the purpose of negotiations eleven different times during the months of January, February, March and April of 1973. Three other meetings were scheduled on March 26, March 30 and April 2; however, the plaintiff’s negotiating team failed to appear for those sessions. During the meeting of March 8, 1973, the plaintiff’s negotiating team invited approximately 35 to 40 members of their association to observe the negotiations. This led to a breakdown of negotiations at that meeting because the defendant’s representatives did not feel they could negotiate with that many people present.
During the negotiating meeting of February 19, 1973, the defendant stated in writing that it would receive input and discussion but would not formally negotiate on the following items requested by the plaintiff in its notice: Class size; teachers’ aides; public board meetings; planning period for elementary teachers; inclusion of agreed terms in contract by reference; teachers’ evaluation of administrators; and maintenance of standards.
Items upon which the parties negotiated were: Contribution to Blue Cross-Blue Shield; personal leave; grievance procedures; teachers’ salaries; sick leave; and reimbursement for college credit. The plaintiffs in their petition charge that the defendant and the defendant’s representatives wholly failed and refused to enter into professional negotiations on the above items in a good faith effort to reach agreement with respect to the terms and conditions of professional service.
On the night of April 13, 1973, the defendant’s negotiating team recommended to the Board of Education that negotiations stop and contracts be issued. Accordingly, the Board voted to' unilaterally issue contracts to the teachers for the next year. This decision was based on the fact that, under the law, by April 15 teachers were to notify the district if they did not wish to teach during the following year. The Board thought it would be difficult for teachers to make such a decision if they did not have a contract by that date. The Board also requested advice from its attorney relative to termination of negotiations and was referred to the decision of Judge Walton in National Education Association v. Board of Education, 212 Kan. 741, 512 P. 2d 426. (At that time the case had not been decided by the Supreme Court.) The trial court held that it was reasonable to negotiate until April 15, but unreasonable to negotiate past that date. The defendant also based its decision on the administrative needs of the district.
During the 1972 session of the legislature, a proposed amendment was made to the School Foundation Act (Senate Bill 92) which, eventually as amended, passed both houses of the legislature as Substitute Senate Bill 92. A computer run off on the financial aspects of Substitute Senate Bill 92 was received by the defendant on April 11, 1973, and a representative of the defendant attended a seminar concerning the matter. However, the financial information was not available to the defendant until April 13, 1973. On that date the defendant’s representative advised the Board that he believed, under the provisions of Substitute Senate Bill 92 and cutting the budget for new equipment, it would be possible to give the professional employees of the plaintiff a $400 across-the-board salary raise. This was based upon information available through the representative of the Board at the time the decision was made. The $400 salary raise had not been presented by the defendant’s representatives in prior negotiations.
On April 16, 1973, approximately 83 professional employees of the defendant and members of the plaintiff association struck and picketed defendant by failing to attend and instruct their assigned class duties.
On April 19, 1973, the plaintiff filed its action in the District Court of Shawnee County, Kansas. Hearings were held on April 26, 27 and 30, and in its memorandum opinion filed May 2, 1973, the trial court stated and found:
“Kansas Statutes Annotated 72-5413 (g) defines ‘professional negotiation’ as ‘meeting, conferring, consulting and discussing in a good faith effort by both parties to reach agreement with respect to the terms and conditions of professional service.’
“ ‘Good faith effort’ as used in the foregoing statute means an effort actuated by honest intention. It follows, therefore, that said statute imposes a duty on parties engaged in professional negotiations to confer and discuss the terms and conditions of professional service with an honest intention of reaching agreement. A party does not bargain in good faith if it adopts an adamant or unyielding position on an issue which would fall within that category of issues reasonably subject to negotiation under the statute. Any intention on the part of one party to totally dominate the other party engaged in negotiations or to impose substantially all of its own terms on the other party without a fair consideration of such other party’s terms is inconsistent with the good faith requirement. Similarly, a party which refuses to negotiate at all or which engages in conduct calculated to obstruct negotiations, fails to satisfy the statutory duty to engage in professional negotiations prior to the issuance of contracts. Finally, a party which assumes a position characterized by excessive demands, unreasonable proposals or terms clearly beyond the capability of the other negotiating party is also acting in violation of the letter and the spirit of the act.
“In the instant case, the board failed to fully satisfy the requirement of professional negotiations with the association in the following respects:
“1. At the outset of negotiations the board rejected the ‘discrimination clause’ as contained in the procedural agreement proposal of the association. As a consequence of said rejection, the board refused to agree that members of the association team would not suffer discriminatory acts by the board by reason of the professional negotiations of the parties.
“2. The board adopted an adamant and unyielding position in refusing to negotiate and to fairly consider the ‘maintenance of standards’ proposal of the association. The board treated this proposal as non-negotiable notwithstanding the fact that the 1972-1973 Negotiated Agreement contained such a provision.
“3. The board refused to negotiate the association’s proposal whereby individual teacher contract would incorporate by reference the terms of any negotiated agreement between the board and the association although K. S. A. 72-5423 (c) specifically authorizes such incorporation.
“4. The board refused to fairly and fully consider the grievance procedure proposal of the association notwithstanding the fact that the Kansas Legislature specifically authorized agreements for binding arbitration as provided by K. S. A. 72-5424.
“5. The board unilaterally terminated negotiations on April 12, 1973, and at a board meeting on the following night voted to authorize a salary increase across the board to all teachers in the amount of $400.00 without first conferring with the association and when such matter was the subject of professional negotiations prior to such unilateral termination. Thereafter, the board issued unilateral contracts on or about April 13, 1973, containing an express term that said contract offer must be accepted by all teachers no later than April 25, 1973. The aforesaid unilateral acts on the part of the board constitute a most serious violation of its duty to engage in professional negotiations with the association.
“The Court is also of the view that the association failed to comply with the letter and the spirit of the aforesaid statute requiring it to engage in professional negotiations. The association’s proposals concerning teacher aides, teacher salaries, planning period, and unlimited sick leave taken together under all the facts and circumstances appear to constitute excessive demands beyond the financial capabilities of the board. The Court is mindful of the stringent financial limitations imposed upon the board by law. Additional monies would be required in order for the board to implement all of said proposals. It is unreasonable for the association to insist that the board agree to a combination of proposals which require financial resources over and above those available to the board. Likewise, the positions taken by the association concerning class size and personal leave are of questionable reasonableness under all the facts and circumstances of the instant case.
“It is also the opinion of the Court that the association failed to properly discharge its duty to engage in professional negotiations when it failed to agree to three additional negotiation meetings and contributed to the breakdown of negotiations at the March 5, 1973, meeting by inviting an excessive number of observers.”
Thereupon the court issued a preliminary order of mandamus requiring the plaintiff and defendant to resume forthwith professional negotiations in accordance with the provisions of K. S. A. 72-5413, et seq., requiring the parties to negotiate at such times, with such frequency and under such conditions as to evidence a good faith effort to reach agreement. The trial court further temporarily enjoined the defendant from the issuance of unilateral teacher contracts for the school year 1973-1974 from and after the 23rd day of April 1973, until the further order of the court.
On May 10, 1973, the defendant filed its answer to the plaintiff’s petition and alleged, among other things, that the plaintiff was not a proper party to institute suit against this defendant based upon the facts alleged in its petition.
On May 14, 1973, the negotiating representative of the plaintiff and defendant reached agreement on the 1973-1974 contract. They agreed upon the salary and terms of employment for the school year 1973-1974, and for the return of the terminated teachers who had been involved in the work stoppage. The terms of the employment agreement for the 1973-1974 school year, which were accepted by the teachers on May 14, 1973, were substantially the same as those contained in the unilateral contract of the defendant Board on April 13, 1973, except that it was agreed that all teachers would receive no less than a $400 increase in salary for the 1973-1974 school year, and committees would be established to recommend a modified salary index and to study the use of the transportation appeal money if it was granted. The agreement for the return of the teachers was ratified by the terminated teachers but not by the plaintiff association. The employment agreement for 1973-1974 was ratified by the members of the plaintiff association on May 15, 1973. The defendant Board of Education met on May 17, 1973, and ratified the employment agreement for the 1973-1974 school year by a vote of five to one, but refected the agreement for the return of the terminated teachers by a vote of five to one.
On May 22, 1973, the plaintiff filed its first amended petition which contained five counts. Count I requested the court to issue an order of mandamus and injunction forthwith restraining the defendant from issuing individual contracts and requiring the defendant to return to the negotiating table; Count II requested the court to enter an order requiring the Board to allow striking teachers to return to work pursuant to an alleged agreement which plaintiff maintained was part of the negotiated agreement; Count III requested the court for an order compelling the defendant to reinstate terminated employees under the same terms and conditions as reflected in the negotiated agreement for the 1973-1974 school year and back wages for the striking teachers; Count IV requested the court to issue an order compelling defendant to reinstate the terminated teachers for the remainder of the 1972-1973 school year and for an order compelling the defendant to offer said persons a contract on the same terms and conditions as the negotiated agreement for the 1973-1974 school year; and for back pay; Count V requested the court to order the defendant to negotiate the return of the striking teachers to their classroom duties for 1972-1973 and to negotiate their employment for the 1973-1974 school year.
On May 31, 1973, the defendant moved for summary judgment against the plaintiff for the reason that plaintiff lacked all capacity to sue the defendant; that if plaintiff had the capacity to sue, then its capacity was strictly limited to those causes of action which might arise pursuant to the Collective Negotiations Act; that the 1973-1974 negotiated agreement had been ratified according to law; and that the alleged agreement for the return of teachers was not an issue for collective negotiations pursuant to the Collective Negotiations Act; and that the individual members of the plaintiff association had failed to exhaust their nonjudicial remedies.
On June 14, 1973, the court ruled on the defendant’s motion and rendered summary judgment in favor of the defendant on the second, third and fifth counts of the plaintiff’s amended petition. The plaintiff had previously requested permission to withdraw its fourth cause of action and the court granted permission for the withdrawal.
The trial court in its memorandum decision of June 14, 1973, held the agreement for the return of the suspended or terminated teachers was not an issue for collective negotiations as provided by the Collective Negotiations Act. It was the further view of the trial court that the plaintiff association had no legal standing to assert claims for reinstatement on behalf of the suspended or terminated teachers.
On July 5, 1973, the trial court filed its memorandum decision with respect to the plaintiff’s motion to alter and amend (dated June 15, 1973) and found the only remaining issue in the case was whether the plaintiff was entitled to damages and attorneys’ fees.
The plaintiff in its motion to alter and amend the order and judgment of the trial court stated as one of its grounds for the motion that the negotiations, Agreements and settlements of the grievances and disputes concerning the contracts of the terminated teachers was incidental to and an integral part of the negotiations, settlement and agreement concerning the terms and conditions of professional service of the employees of the defendant school district for the year 1973-1974. In its memorandum decision on July 5,1973, the trial court said:
“Please be advised that the Court after due consideration is of the view that the only remaining issue in the above-entitled case is whether plaintiff is entitled to damages and attorneys fees.
“The Court is of the further view that it cannot properly consider as an issue in the instant case any contention on the part of plaintiff that the ratification of the negotiated agreement concerning teacher’s contracts for the 1973-74 school year should be set aside.
“The Court adopts this position for three reasons. First, plaintiff association has not voted to rescind its ratification, and any action on the part of this Court in this regard would be premature. Second, prior to final negotiations culminating in the agreements in question and the ratification by plaintiff, this Court announced its tentative view that the return of the striking teachers was not an issue for collective negotiations as provided by the collective negotiations act (K. S. A. 1972 Supp. 72-5413, et seq.). Thus, any ruling by the Court should have come as no surprise to the parties. Third, parol evidence of prior oral or written negotiations or agreements of the parties or of their contemporaneous oral agreements, which varies or contradicts the written contracts in question would not be admissible under the parol evidence rule.
“I might also note in passing that the conduct of plaintiffs in submitting only the negotiated agreement concerning teachers contracts for the 1973-74 school year and not the agreement for the return of the striking teachers, for vote by its entire membership appears to be consistent with the Court’s position. It is difficult to understand whjy both agreements were not submitted for vote to the entire membership if one was dependent upon the other. Furthermore, the record reflects that during the course of the final hearing when tentative agreements were reached, defendant clearly took the position in the presence of the Court that the two agreements were entirely separate.
“The Court is also of the view that a permanent order of mandamus should not be granted at this time. To warrant its issuance it must appear that the writ will be effectual as a practical benefit to the petitioner and serve a proper purpose (52 Am. Jur. 2d, Mandamus, sec. 36 at pp. 360-1.) The writ will not be granted in a doubtful case (52 Am. Jur. 2d Mandamus, sec. 35 at p. 360.) It must also appear that some just purpose may be served by the writ, and the Court in the exercise of its discretion, may refuse to grant the writ if the consequences of its issuance will not promote substantial justice, will result in more harm than good, will lend aid to the effectuation of a palpable injustice, will tend to disorder and confusion, or will be attended with manifest hardship and difficulties. (52 Am. Jur. 2d, Mandamus, sec. 33 at pp. 358-9)
“In the instant case, the defendant complied with the preliminary order of mandamus to return to professional negotiations. An agreement was reached and ratified by both parties. No useful purpose would be served by a permanent order of mandamus compelling defendant to professionally negotiate with plaintiff for the indefinite future under these circumstances. Such an order is not necessary to promote substantial justice at this time. Moreover, such an order would require virtually continual and perpetual supervision by this Court over the professional negotiations of the parties. This Court is ill-equipped for such an endeavor, and any attempt on its part to fulfill such a role might constitute an unwarranted interference in the affairs of defendant school board. Plaintiff can always seek redress in the Courts at anjy time in the future when an actual case or controversy arises in this regard.”
On October 24, 1973, and after this Court’s decision in the National Education Association v. Board of Education, supra, (filed July 14, 1973) the trial court amended its ruling of July 5, 1973, by allowing the issue of permanent mandamus to be further considered by the court.
On January 15, 1974, the defendant again filed a motion for summary judgment on the ground that the issues remaining before the court were moot.
The trial court in ruling upon the defendant’s motion for summary judgment stated the basis of the motion was that the State Board of Education, by hearing on January 2, 1974, ordered the defendant to recognize the Seaman Professional Education Association of Kansas as the exclusive representative of professional employees and administrators for the purpose of professional negotiations with the defendant. Counsel for the plaintiff conceded the above action had in fact been taken by the State Board of Education. Counsel for the plaintiff did not object to receiving the documents attached to the defendant’s motion for summary judgment as a part of the record herein but contended that such actions on the part of the State Board provided no basis to deny relief in the nature of a permanent order of mandamus.
Treating the defendant’s motion for summary judgment as a motion for involuntary dismissal under K. S. A. 60-241, the trial court in its memorandum decision filed March 29, 1974, said:
“The remaining issues before the Court are: (1) whether a permanent order of mandamus should issue requiring the defendant to engage in professional negotiations with plaintiff; (2) whether defendant should be ordered to pay plaintiff’s attorney’s fees.
“The general and the well-established rule is that mandamus is an extraordinary remedy, discretionary in character, and does not issue as a matter of right. (Bradley v. Cleaver, 150 Kan. 699, 703; Miller v. Jackson, 166 Kan. 141, 144; State, ex rel. Fatzer v. Salome, syl. 1, 169 Kan. 585; Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 292; State, ex rel. Frizzell v. Paulson, syl. 2, 204 Kan. 857.
“Moreover, the writ of mandamus does not issue automatically, but its usefulness must be shown. To warrant its issuance, it must appear that the writ will be effectual as a remedy, be of substantial or practical benefit to the petitioner, and serve a proper purpose; it is invariably withheld where it would be unavailing, nugatory, or useless and its issuance an idle act. Further, the writ will not issue to compel the performance of acts which can have no legal effect, or if, by operation of law, compliance with the mandate can have no operative effect, or if, events occurring subsequent to the commencement of the proceeding would render the writ, if issued, nugatory, useless and unavailing. (52 Am. Jur. 2d, Mandamus, at pp. 360, 361.)
“In the instant case events occurring since the commencement of the proceedings and the trial would, in fact, render the writ, if issued, nugatory, useless and unavailing. There can be no utility at this time in ordering defendant to negotiate with an association which is no longer authorized to act as the exclusive representative of the professional employees of defendant. Furthermore, any such order could only result in unnecessary confusion at the present time. The Seaman Professional Education Association has not been substituted as party plaintiff in the instant proceedings. Indeed, said association has not demonstrated the slightest interest in the relief sought by the plaintiff, and no motion has been made by any party or interested group for such substitution. For these reasons, tire Court, in the exercise of its discretion, denies the application of plaintiff for a permanent order of mandamus.
“The remaining issue concerns plaintiff’s prayer for attorney’s fees. The law in this jurisdiction is clear. K. S. A. 60-802 (c) provides:
“ ‘If judgment be given for the plaintiff, he may also recover such damages as he may have sustained by reason of failure of the defendant to perform the specified duty, together with costs.’
“By reason of the foregoing statute, plaintiffs are entitled to recover as damages attorney’s fees in cases where a permanent order of mandamus has been issued. Said statute authorized the Court to award attorney’s fees only when the Court renders final judgment issuing a permanent order of mandamus. Since no such judgment is rendered in the instant case, damages, including attorney’s fees, may not be awarded to plaintiff. Moreover, although there was a breach of a statutory duty to negotiate ‘in good faith’ prior to the time this Court issued its temporary order of mandamus, as in Liberal-NEA v. Board of Education, 211 Kan. 219, and National Education Association v. Board of Education, 212 Kan. 741, the breach was occasioned by an honest belief on the part of the Board that it was doing all that the law required and said Board was acting upon the advice of counsel. Since the Supreme Court denied attorney’s fees in said cases, it appears that plaintiff would not be entitled to such relief in the instant case.
“It is, therefore, ordered and adjudged that defendant’s motion for involuntary dismissal be and the same is hereby sustained. It is further ordered and adjudged that the claims of plaintiff be and the same are hereby dismissed with prejudice. Costs are taxed to plaintiff.”
Appeal has been duly perfected by the plaintiff from the orders of the trial court dismissing its claims with prejudice, taxing the cost to the plaintiffs, denying its request for a decree of permanent mandamus and denying its application for damages and attorney’s fees.
The defendant has cross-appealed from the order of the trial court finding that the plaintiff had capacity to sue the defendant. Turning to the cross-appeal, does the plaintiff have capacity to sue the defendant?
In 1970 the Kansas Legislature enacted K. S. A. 72-5413 through 72-5425 which extended the right to bargain collectively to professional and administrative employees of school boards. Under this statutory scheme the first step in providing collective bargaining for the teachers requires the creation of an exclusive statutory representative to represent the professional employees in negotiating with the school board. Provision is made for the selection of an exclusive representative or bargaining agent in K. S. A. 72-5415. In substance this section provides that the representative designated or selected for the purpose of professional negotiation by the majority of the professional employees shall be the exclusive representative of all professional employees in the negotiating unit, except administrative employees. (Liberal-NEA v. Board of Education, 211 Kan. 219, 505 P. 2d 651.)
The appellee (cross-appellant) argues the well established rule is that an unincorporated association, society or club is not a legal entity distinct from its members, and cannot sue in its own name, but the action must be brought by tire members collectively or by an agent or committee authorized to sue for tire organization, unless an enabling statute permits it to sue or be sued in the association’s name. (Brown v. United States, 276 U. S. 134, 72 L. Ed. 500, 48 S. Ct. 288; Grolier Society v. Foster, 110 Kan. 306, 203 Pac. 920; Ryan v. Ryan, 156 Kan. 348, 133 P. 2d 119; State Association of Chiropractors v. Anderson, 186 Kan. 130, 348 P. 2d 1042; and Kansas Private Club Assn. v. Londerholm, 196 Kan. 1, 408 P. 2d 891.)
The foregoing authorities recognize that the legislature may by an enabling statute permit the unincorporated association to sue or be sued in the association’s name.
Construing the various provisions of tire Collective Negotiations Act (K. S. A. 72-5413 through 72-5425) as a whole discloses an intention on the part of the legislature to authorize a professional employees’ organization of the teachers to sue or be sued in the association’s name.
Professional employees are given the right to form, join or assist professional employees’ organizations, to participate in professional negotiations with boards of education through representatives of their own choosing for the purpose of establishing, maintaining, protecting or improving terms and conditions of professional ser vice. (K. S. A. 72-5414.) Where an organization has been formed by professional employees in accordance with the act the school district is required to recognize the organization as the exclusive representative of the professional employees. (K. S. A. 72-5416.) Under the provisions of K. S. A. 72-5421, the representative of the professional employees, selected and designated as provided in the statutes, is given authority to enter into an agreement with the school district representative covering terms and conditions of professional service) which agreements become binding upon ratification by the respective parties.
K. S. A. 72-5424 provides that:
“A board of education and a professional employees’ organization who enter into an agreement covering terms and conditions of professional service may include in such agreement procedures for final and binding arbitration of such disputes as may arise involving the interpretation, application or violation of such agreement.”
It further provides:
“Where a party to such agreement is aggrieved by the failure, neglect or refusal of the other party to proceed to arbitration in the manner provided for in such agreement, such aggrieved party may file a complaint in court for a summary action without jury seeking an order directing that the arbitration proceed in the manner provided for in such agreement.” (Emphasis added.)
Inferentially under the terms of the foregoing statute, the professional employees’ organization is given the power and authority to file a complaint in court for a summary action without jury, seeking an order directing that arbitration proceed in the manner provided in the agreement.
A primary purpose of the collective negotiations statute was to provide a spokesman and representative for the individual professional employees for the protection and the improvement of their rights. We think the act itself enabling a professional employees’ organization, organized pursuant to statute, to perform its statutory duties, responsibilities and functions permits the professional employees’ organization to sue or be sued in the association’s name. (See, Liberal-NEA v. Board of Education, supra.) Accordingly we conclude, the plaintiff had capacity to sue the defendant herein, and the trial court did not err in so ruling.
The legislature could have clarified this point as it has in K. S. A. 44-811, concerning labor organizations.
The appellant contends the trial court erred: (1) In its rulings, orders and decisions which failed to give meaning and effect to the requirements of the Collective Negotiations Law, and in support thereof sets forth five particulars in which it is alleged the appellee failed to negotiate in a good faith effort to reach agreement; (2) in denying the appellant’s request for the entry of a decree of permanent mandamus against the appellee; and (3) in its rulings, orders and determinations that the appellant was not entitled to its damages, expenses and attorneys’ fees.
It is uncontroverted that on May 14, 1973, the parties reached agreement on the 1973-1974 employment contract. This agreement toas ratified by the teachers unit represented by the appellant on May 15, 1973, and by the appellee on May 17, 1973, and subsequently approved by the court in its memorandum decision filed July 5,1973.
Many items upon which the appellant originally sought to negotiate were settled by agreement, and other items upon which negotiation was originally sought were abandoned by the appellant. These fruitful negotiations and the resulting agreement were reached after the action was filed and the court ordered further negotiations conducted. When the trial court issued its preliminary order of mandamus requiring the appellant and the appellee to resume forthwith professional negotiations in accordance with the provisions of the Act, the trial court further temporarily enjoined the appellee from the issuance of unilateral teacher contracts for the school year 1973-1974 from and after the 23rd day of April 1973, until the further order of the court.
On May 22, 1973, the appellant filed its first amended petition requesting that the court issue an order of mandamus and injunction forthwith enjoining and restraining the appellee, its agents, and employees, from unilaterally issuing individual contracts of employment to the certified employees of Unified School District No. 345; and that the court forthwith issue its mandatory injunction to the appellee to return to the negotiating table and to engage in good faith professional negotiations with reference to the terms and conditions of professional service with representatives of the appellant until the further order of the court, and that the appellant recover its damages, attorneys’ fees and costs, and such further relief as the court shall deem just and proper. Subsequently the trial court on June 14, 1973, dismissed the second, third and fifth counts of appellant’s amended petition pursuant to the appellee’s motion for summary judgment. At the request of the ap pellant the court permitted the appellant to withdraw its fourth count of the amended petition. The second, third, fourth and fifth counts all pertained to the striking teachers.
K. S. A. 72-5423 (b) provides:
“Nothing in this act shall be construed to authorize a strike by professional employees.”
As heretofore recited, the record discloses on April 16, 1973, three days after the appellee terminated negotiations prior to the filing of this action, approximately 83 professional employees who were members of the appellant association struck and picketed the appellee by failing to attend and instruct their assigned class duties. On the record here presented the trial court properly determined that the return of the striking teachers was not an issue for collective negotiations under the Collective Negotiations Act (K. S. A. 72-5413, et seq.). Efforts to negotiate this issue apart from the other issues was not submitted to the teachers’ unit represented by the appellant for ratification, and the appellee rejected the proposal submitted on this issue.
To enforce the legislative mandate in the Act designed to prohibit a strike by professional employees our courts will give no assistance under the Act to professional employees who do strike.
The trial court properly ruled that the appellant association had no legal standing to assert claims for reinstatement on behalf of the suspended or terminated teachers.
It is clear the appellant’s original petition and the first count of its amended petition are the same. As a result of the appellant’s original petition, the parties, both the appellant and the appellee, were found by the trial court to have failed to properly discharge their duties to engage in professional negotiations in good faith and were required by the trial court to resume negotiations forthwith. Here the appellant affirmatively sought a judgment of the trial court which resulted in a negotiated agreement for 1973-1974 which was ratified according to law. Under these circumstances it must be said the appellant acquiesced in the judgment.
On the record here presented the appellant was completely successful following the hearing on its original petition — it procured a preliminary order of mandamus requiring the parties to- resume forthwith professional negotiations in accordance with the Act, requiring the parties to negotiate in a good faith effort to reach agreement, and an order was issued temporarily enjoining the ap pellee from the issuance of unilateral teacher contracts for the school year 1973-1974. This successful effort on the part of the appellant led to a negotiated agreement on the 1973-1974 contract on May 14, 1973. The basic issue the appellant sought to have resolved was successfully concluded, and the appellant’s ratification of the negotiated agreement constitutes an acquiescence in the judgment.
This court has repeatedly held anything that savors of acquiescence in a judgment cuts off the right to appellate review. (Curry v. Perney, 194 Kan. 722, 402 P. 2d 316; Peters v. Peters, 175 Kan. 422, 263 P. 2d 1019; Cohen v. Dresie, 174 Kan. 391, 256 P. 2d 845; Newsome v. Anderson, 164 Kan. 132, 187 P. 2d 495; Sisk v. Edmonston, 163 Kan. 394, 182 P. 2d 891; Warner v. City of Independence, 121 Kan. 551, 247 Pac. 871; and Bank v. Bracey, 112 Kan. 677, 212 Pac. 675.)
It follows the appellant’s contention that the appellee failed to negotiate in good faith upon the various factual issues asserted by the appellant, prior to the termination of negotiations and the filing of this action, is moot. Under the circumstances the trial court was also correct in its refusal to grant a permanent order of mandamus. The issuance of the writ would not be of any practical benefit to the appellant or serve a proper purpose. In fact, the appellant is no longer recognized as the representative of the professional employees of the appellee as required by law. (K. S. A. 72-5416.) The Seaman Professional Educators’ Association of Kansas is now the exclusive representative of the professional employees of the appellee, and it has shown no interest in this case. It has not been substituted as a party to the action.
The appellant contends the trial court erred in holding that it was not entitled to its damages, expenses and attorneys’ fees.
When this case was before the trial court the Supreme Court of Kansas had not spoken on the subject of the Kansas Collective Negotiations Act. The first time it examined the substantive provisions of the Act was in National Education Association v. Board of Education, 212 Kan. 741, 512 P. 2d 426. Many similarities exist between the two cases, except that here the parties did reach an agreement on the claims negotiated and ratified the negotiated agreement for the 1973-1974 school year.
Other than legal expenses and attorneys’ fees the record is silent as to any additional damages or expenses. Under these circumstances our decision on the point in question is controlled by what was said in National Education Association v. Board of Education, supra, at page 756:
“NEA insists it should have attorney fees because the trial court’s granting of mandamus necessarily implies that the Board was not negotiating ‘in good faith’ as required by the statute — despite the Board’s reliance on the advice of counsel.
“The contention is largely answered by Liberal-NEA v. Board of Education, supra, where we denied attorney fees while holding that a mandamus order should have been issued. We there noted:
. . We have held that the underlying test to determine whether or not damages and attorney fees should be allowed in a mandamus action is whether the refusal of the public official, commission or board to perform the duty imposed by law was reasonable under all the facts and circumstances. (Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 438 P. 2d 732.)’ (p. 233.)
“There, as here, there was a breach of statutory duty to negotiate ‘in good faith.’ There, as here, the breach was occasioned by subjective good faith belief on the part of the board that it was doing all the law required of it. There, as here, there was a first encounter with a new and complicated law, in which both parties were uncertain of their footing.
“The trial court here found that both parties acted in the utmost good faith in their efforts to comply with the act as they understood it. That finding is amply supported by the record. The fact that the Board’s legal premise may have proved to be faulty in some respects, after this court has spoken on the subject for the first time, does not make their conduct in the first instance ‘unreasonable.’ We, therefore, concur in the trial court’s finding that attorney fees should be denied.”
In the instant case the trial court denied damages, including attorneys’ fees, on the ground that the Board’s failure to negotiate in good faith, prior to the time the trial court issued its temporary order of mandamus, was occasioned by an honest belief on the part of the Board that it was doing all that the law required, and that the Board was acting upon the advice of counsel. Evidence in the record supports these findings of the trial court. Under the circumstances the trial court did not err in denying legal expenses and attorneys’ fees in the instant case.
The judgment of the lower court is affirmed.
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The opinion of the court was delivered by
Owsley, J.:
Defendant, Jack Boster, appeals from a criminal con viction of burglary (K.S.A. 21-3715) and theft (K.S. A. 21-3701). The principal issue before this court concerns the constitutional validity of an inventory search of a vehicle driven by defendant and impounded by the police pursuant to defendant’s arrest on a traffic violation. Because of the relevance of the circumstances to the constitutional question, the following facts are significant to this appeal.
On the night of November 22, 1973, a burglary took place at Crupper’s Furniture, and Appliance Store in Reno County, Kansas. Taken from the store were numerous home entertainment items, including television sets and stereos. The following day, George Overstreet, a patrolman with the Salina Police Department, received a dispatch over the police radio notifying him that two suspicious vehicles were parked in front of a tavern in Salina, Kansas. One of the vehicles was described as a 1967 green Pontiac and it was reported that a large amount of coins had been seen lying on the front seat of the car.
A short time later Officer Overstreet observed defendant, with a passenger, driving away from the tavern in the Pontiac. The other vehicle was following them. The two cars had gone only a block when they were stopped by Overstreet. Defendant and his passenger, Robert Wing, were ordered out of the car and frisked. When defendant could not produce a driver’s license upon request, he was handcuffed and taken to the police station in the patrol car. Overstreet ordered the passenger, Wing, to drive the Pontiac and follow the patrol car to the police station. The officer did not notice any coins lying on the car seat at that time. He did not inquire as to the ownership of the car.
At the police station defendant was unable to post bond or pay his fine, so he was booked and jailed. When it was discovered that defendant was going to be jailed, a warrantless inventory search was made of the Pontiac as was the customary procedure prior to impoundment of a vehicle. Although the police did not know at that time who owned the car, it was later determined that the Pontiac was owned by Lloyd Shipman, the driver of the second car.
Pursuant to the inventory of the vehicle, the police searched the trunk where they found a large container of coins, a portable television, a tape player, a turntable, two speakers and two amplifiers. These items were placed in the evidence locker and the vehicle was towed to a fenced lot for impoundment. Later, the serial numbers were sent to the National Crime Information Center and the property was discovered to be stolen.
Detectives Huff and Hindman of the Salina Police Department were contacted and authorized to begin an investigation. Detective Huff learned from the Reno County sheriff’s office that the merchandise was from Crupper’s Furniture and Appliance Store. Questioning of defendant and the other parties continued throughout the afternoon. Defendant was shown the items of property discovered in the car trunk, and shortly thereafter defendant allegedly confessed to the police that he, along with Richard Bentley and Lloyd Shipman, burglarized the appliance store.
Prior to- trial on the merits, defendant moved the court for an order suppressing the introduction into evidence of all property taken from the trunk of the automobile driven by him on the day of his arrest, and for an order suppressing any testimony relating to said property. Defendant further moved the court for an order suppressing his confession. In support of his motion, defendant argued the search and seizure of personal property in the car did not occur at any time or place contemporary with his arrest by the Salina police and that said search and seizure occurred at the police station under the guise of an “inventory search” and was not conducted with a search warrant. Defendant further stated that permission was not given to search the vehicle, and that such a search was contrary to the Fourth Amendment to the Constitution of the United States, to Section 15 of the Bill of Rights of the Constitution of the State of Kansas, and to K. S. A. 22-2501, relating to searches without a search warrant.
In a comprehensive memorandum opinion filed on February 21, 1974, the district court of Reno County, Kansas, set forth the applicable case law, recognized there was a definite split of authority, and declared the police inventory search and seizure of the items contained in the trunk of the vehicle was lawful. Defendant’s motion to suppress was accordingly denied. The trial was ordered to proceed as scheduled and defendant was found guilty of burglary and theft.
We note as a preliminary matter that the state raises a question as to the standing of defendant to object on constitutional grounds to the search of the automobile. It is the state’s argument that defendant has done nothing more than allege a custodial interest in the car by virtue of the act of driving. This, it claims, is insufficient to accord standing to the defendant.
We have held that one who seeks to challenge the legality of a search as a basis for suppressing relevant evidence must first allege, and if disputed he must establish, that he was the victim of the invasion of privacy. To establish a sufficient interest, a movant must claim either to have a proprietary or possessory interest in the premises searched, or to have owned or possessed the seized property. (State v. Sumner, 210 Kan. 802, 504 P. 2d 239; Jones v. United States, 362 U. S. 257, 4 L. Ed. 2d 697, 80 S. Ct. 725; Brown v. United States, 411 U. S. 223, 36 L. Ed. 2d 208, 93 S. Ct. 1565; Head and Cummings v. State, 246 Miss. 203, 136 So. 2d 619.)
On numerous occasions we have applied this principle to the search of an automobile and held that one who is neither an owner nor in possession of an automobile lacks standing to invoke the constitutional guarantee of immunity from unreasonable search and seizure. (State v. Edwards, 197 Kan. 146, 415 P. 2d 231; State v. Roberts, 210 Kan. 786, 504 P. 2d 242.) In Edwards, the automobile searched was not owned by the defendant, nor was it in his possession or control. The defendant therein did not claim any interest in the car or in the property taken therefrom. Consequently, we held the defendant lacked standing to protest the search.
Similarly, we denied a motion to suppress for lack of standing in Roberts, where the defendant was only a passenger in the car that was searched and he claimed no ownership or interest in it.
The situation confronting us in the instant case is somewhat different. Here, defendant was the driver of the vehicle at the time he was arrested. He had actual possession and custody of the automobile, with the apparent consent of the owner, Lloyd Shipman, who was following in the second car. Under these circumstances, defendant had a sufficient possessory interest in the automobile to justify a reasonable expectation of privacy and to assert his constitutional rights against unreasonable search and seizure.
We find support for this result in the holdings of other courts which have been faced with similar factual settings. In United States v. Festa, 192 F. Supp. 160 (Mass. 1960), the court said:
“Although Pirrello [co-defendant] was not the owner of the car, and may not have been the owner of its contents, he had been given possession of the car by its registered owner. Pirrello therefore has standing to require that the contents of the car which were seized, ... be returned to him and be suppressed in evidence. Jones v. United States, 362 U. S. 257, 80 S. Ct. 725, 4 L. Ed. 2d 697.” (p. 164.)
Again, in State v. Hoover, 219 Or. 288, 347 P. 2d 69, the court reached the same conclusion:
“We note that the defendant was driving a borrowed car. However, we think that a bailee has an interest of sufficient substance to fall within the constitutional protection. [Citations omitted.] The circumstances of the bailment are not set out with clarity in the evidence. One might infer that the automobile was loaned to the defendant alone or to the group as a whole. But even if the automobile was loaned to the entire party the defendant’s interest was not so tenuous as to debar him from asserting his constitutional right against unlawful search.” (p.296.)
Although we have determined that defendant has standing to object to any evidence obtained as a result of an unconstitutional search and seizure, it is necessary to first establish whether there has been a “search” within the meaning of the Fourth Amendment. Defendant contends any exploration of an individual’s automobile, pursuant to police impoundment procedure, is a search within the context of the Fourth Amendment and the Kansas Bill of Rights. We are aware there is authority to the effect that an inventory search does not fall within the ambit of the Fourth Amendment protections. (See, People v. Sullivan, 29 N. Y. 2d 69, 323 N. Y. S. 2d 945, 272 N. E. 2d 464, 48 A. L. R. 3d 527; State v. Wallen, 185 Neb. 44, 173 N. W. 2d 372, cert. den. 399 U. S. 912, 26 L. Ed. 2d 568, 90 S. Ct. 2211; St. Clair v. State, 1 Md. App. 605, 232 A. 2d 565.) These cases have generally reasoned that a police inventory of the contents of an automobile does not constitute a “search” when it is not done with a view to discovering contraband or evidence of crime. In our opinion such a position is based on an overly technical approach to the constitutional protections against unreasonable searches and would place the police in the highly anomalous situation of being able to conduct a general exploratory “inventory” when they did not have sufficient justification to get a search warrant. The sounder view, as we see it, is to recognize that all intrusions by the police upon the privacy of an individual, including an inventory search, are subject to the Fourth Amendment requirement of reasonableness. We agree with the comment in Footnote 15, p. 18, in Terry v. Ohio, 392 U. S. 1, 20 L. Ed 2d 889, 88 S. Ct. 1868:
“In our view the sounder course is to recognize that the Fourth Amendment governs all intrusions by agents of the public upon personal security, and to make the scope of the particular intrusion, in light of all the exigencies of the case, a central element in the analysis of reasonableness. [Citations omitted.] This seems preferable to an approach which attributes too much significance to an overly technical definition of ‘search,’. ...”
The Fourth Amendment to the United States Constitution guarantees that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ...” A similar provision is included in Section 15 of the Kansas Bill of Rights. The legislature of this state has directed that incident to a lawful arrest a person and the area within his immediate presence may be reasonably searched for the purpose of protecting the officer, preventing escape, or discovering the fruits and instrumentalities of the crime. (K. S. A. 22-2501.) An inventory search constitutes a substantial invasion into the privacy of an individual and, regardless of the benevolent purposes, such a search should be subject to the test of reasonableness created by the constitutional guarantees.
The constitutional protections of the Fourth Amendment have been extended by the courts to include the search of automobiles, but it has been repeatedly emphasized that the search of cars or other movable objects cannot be treated in the same manner as the search of a house. (Cooper v. California, 386 U. S. 58, 17 L. Ed. 2d 730, 87 S. Ct. 788; Preston v. United States, 376 U. S. 364, 11 L. Ed. 2d 777, 84 S. Ct. 881.) In either instance, the test remains whether the search was reasonable in light of all the circumstances. Naturally, we are guided by these general principles in our review of this case, but we agree with the recent characterization that the controlling decisions in this area “suggest that this branch of the law is something less than a seamless web.” (Cady v. Dombrowski, 413 U. S. 433, 37 L. Ed. 2d 706, 93 S. Ct. 2523.)
The burden of proof to show the lawfulness of a Fourth Amendment search and seizure rests upon the state. In the instant case the state does not seek to justify the search as being incident to a lawful arrest. Clearly, the search was too remote in time to fall within that exception to the search warrant requirement. (See, Preston v. United States, supra.) The state does not argue that defendant consented to the search, or that there was probable cause to believe the vehicle contained contraband or evidence of a crime. Instead, the state tells us this intrusion upon defendant’s privacy by way of an inventory search was justified in light of the purpose to be served; that is, a thorough inventory search of the entire vehicle was both reasonable and desirable in order to protect any valuables contained therein, and to protect the police and the storage bailee from tort claims which might later be asserted. The state reasons since the purpose of the inventory is to safeguard valuables, it would not logically follow that the police should be prevented from inventorying the locked and enclosed areas of an automobile, which it claims would have a greater likelihood of containing valuables. Thus, it is the argument of the state that it is both necessary and reasonable for the police to conduct an inventory search of the entire vehicle, including the trunk and other enclosed areas, so they may fully protect the defendant and insulate themselves from possible liability.
An inventory search cannot be valid unless the police initially obtain lawful custody of the vehicle. (Pigford v. United States, 273 A. 2d 837 [D. C. App. 1971]; People v. Nagel, 17 C. A. 3d 492, 95 Cal. Rptr. 129; United States v. Panned, 256 A. 2d 925 [D. C. App. 1969]; State v. Singleton, 9 Wash. App. 327, 511 P. 2d 1396.) The impoundment of a vehicle by the police at the station house or other place of safekeeping is lawful if authorized by statute or ordinance. (State v. Singleton, supra.) In the absence of such express authority, it has been held that police may still be considered to have lawful custody of a vehicle when there are “reasonable grounds” for impoundment. (State v. Montague, 73 Wash. 2d 381, 438 P. 2d 571; State v. Jones, 2 Wash. App. 627, 472 P. 2d 402; State v. Singleton, supra.) In Singleton, the Washington Court of Appeals gave the following examples of what might be considered reasonable grounds for impoundment:
“Reasonable cause for impoundment may, for example, include the necessity for removing (1) an unattended-to car illegally parked or otherwise illegally obstructing traffic; (2) an unattended-to car from the scene of an accident when the driver is physically or mentally incapable of deciding upon steps to be taken to deal with his property, as in the case of the intoxicated, mentally incapacitated or seriously injured driver; (3) a car that has been stolen or used in the commission of a crime when its retention as evidence is necessary; (4) an abandoned car; (5) a car so mechanically defective as to be a menace to others using the public highway; (6) a car impoundable pursuant to ordinance or statute which provides therefor as in the case of forfeiture. The mere commission of one or more of the 27 bailable traffic offenses listed in JTR T2.03 (m) does not necessarily provide reasonable cause for impoundment. . . . There is even case support for the view that if the driver cannot present his driver’s license when arrested on a traffic violation, impoundment on that account is not required. People v. Nagel, supra; United States v. Panned, 256 A. 2d 925 (D.C. App. 1969).” (pp. 332, 333.)
Our statutes in effect at the time of the impoundment provided that a police officer was authorized to remove any vehicle found standing upon the highway when any of the following conditions were met:
“(1) Report has been made that such vehicle has been stolen or taken without the consent of its owner, or
"(2) The person or persons in charge of such vehicle are unable to provide for its custody or removal, or
“(3) When the person driving or in control of such vehicle is arrested for an alleged offense for which the officer is required hy law to take the person arrested before a proper magistrate without unnecessary delay.” [Emphasis added.] (K.S.A. 1973 Supp. 8-571 [c]; Repealed, L. 1974, ch. 33, §8-2205; July 1.)
An “offense for which the officer is required by law to take the person arrested before a proper magistrate without unnecessary delay” was set forth in K. S. A. 1973 Supp. 8-5,127a (Repealed, L. 1974, ch. 33, § 8-2205; July 1). That section provided that whenever a person was stopped by police for any traffic violation not amounting to a felony, he was to be taken to the magistrate without unnecessary delay in either of the following cases:
“(a) When the person demands an immediate appearance before a magistrate; or
“(b) In any other event when the person is issued a traffic citation by an authorized person and refuses to give his written promise to appear in court as hereinafter provided.”
In the instant case neither of these conditions was met. There is nothing to indicate that defendant requested an appearance before a magistrate or refused to give his written promise to appear in court. To the contrary, all the evidence in the record, and inferences fairly drawn therefrom, indicates defendant had no choice in the matter as the police officer ordered the passenger to drive the vehicle to the police station.
Defendant contends if there is an alternative to impoundment it must be utilized; otherwise, the police cannot obtain lawful custody of the vehicle. Thus, defendant argues the Salina police had the option of allowing the passenger or his friends in the other car (one of whom was the owner of the vehicle) to drive it to a place of their choosing in Salina rather than automatically impounding and searching the vehicle. There was no reason at that time to suspect the car contained contraband, since defendant was only charged with driving without a license. Given these alternatives, defendant contends the police did not have legal custody of the automobile; and, when they did take such possession of the vehicle in derogation of defendant’s possessory rights therein, the impoundment was unlawful.
As previously noted, the burden is on the state to make a showing that it had legal custody of the vehicle prior to the search. (Williams v. United States, 170 A. 2d 233 [D. C. App. 1961]; People v. Nagel, supra; State v. Singleton, supra; Virgil v. Superior Court, 268 C. A. 2d 127, 73 Cal. Rptr. 793.) The state’s only argument in this regard is that the police officer did not know who owned the car at the time of the impoundment and inventory. The state concludes “[i]t would hardly be prudent, or even lawful, for the police, operating under the information available at the time, to exercise an alternative that could conceivably consist of placing the chattel in a situation that would act in derogation of the owner’s interest.”
We are not satisfied with the state’s justification for the impoundment of the vehicle driven by defendant. Clearly, the police were not authorized to remove the vehicle under the provisions of K. S. A. 1973 Supp. 8-571 (c) (1) or (2). Although the police might have been suspicious of the car, there had been no report that it had been stolen and Officer Overstreet did not ask who owned the car or whether the driver had a registration card. The police could not argue that defendant was unable to provide for its custody since defendant, his passenger, or one of his other friends could have driven the car to another place. In fact, it is not clear from the record why the car could not have been left where it was when stopped by the police. Finally, the impoundment was not authorized under 8-571 (c) (3), since the offense of driving without a license is not one for which the officer is required by law to take the person arrested before a magistrate without unnecessary delay. (See, K. S. A. 1973 Supp. 8-5,127a.) There has been no showing by the state that the car was illegally parked or obstructing traffic, or that defendant was incapable of dealing with the car. Although the police apparently had information that the car contained a large number of coins, this alone did not justify the removal of the vehicle. (See, State v. Singleton, supra.) Neither the arrest of defendant for driving without a license nor the circumstances surrounding his arrest had any connection with the need for police custodial care of the car. As the court reasoned in People v. Nagel, supra:
“. . . However unlike the situation in which the driver, the sole occupant, was drunk or injured, defendant was capable of moving his automobile; he was sober and unhurt and able to drive. He had been driving when stopped by police, and while he could present no driver’s license (see § 12500, Veh. Code), under the direction and in the company of one of the officers defendant could have driven his vehicle to a legal parking space, parking lot or to Hollywood station. No reason appears why he could not have taken charge of his own vehicle and driven it under the direction of an officer to a nearby place of safekeeping which, after all, was the only legitimate purpose under the facts known at the time for which custody of the vehicle could have been taken. A reasonable alternative would have been for one of the officers to move it to a place of safety. . . . This is not a case in which the police had to either tow it from the scene and store it or leave it unattended in an illegal parking zone.” (p. 497.)
We do not disapprove the impoundment of vehicles under proper circumstances. We recognize the necessity of the state to protect by appropriate inventory measures both the valuables of the arrested person and its possible liability to tort claims. Nonetheless, the police must first have legal custody of a vehicle before making an inventory of its contents. We hold only that under the circumstances of this case the police custodial care of the vehicle driven by defendant was neither necessary nor reasonable, and as a consequence the police had no legal justification for impounding the car. This being true, the subsequent inventory search was invalid, and all evidence discovered as a result of the search was inadmissible.
Although we are satisfied with the soundness of this conclusion, we believe there is an equally compelling reason for suppressing the evidence. It is clear that even if the police had legal custody of the automobile, it would not of itself dispense with the constitutional requirements imposed by the Fourth Amendment. (Chambers v. Maroney, 399 U. S. 42, 26 L. Ed. 2d 419, 90 S. Ct. 1975; Cooper v. California, supra.) It is still necessary that the search be reasonable under all the circumstances. The inventory search has traditionally been justified on the grounds that it is necessary to protect any valuables within the automobile and to protect the bailee who stores the vehicle. This rationale has come under increasingly frequent criticism. (See, Mozzetti v. Superior Court, 4 C. 3d 699, 94 Cal. Rptr. 412, 484 P. 2d 84; Szwajkowski, “The Aftermath of Cooper v. California: Warrantless Automobile Search in Illinois,” 1968 Univ. of Ill. Law Forum 401; Nelson, “Chimel v. California: A Potential Roadblock to Vehicle Searches,” 17 U. C. L. A. L. Rev. 626.) We agree that these reasons alone will not justify a complete search of an impounded vehicle. In determining what constitutes a reasonable inventory search, we must also consider the competing interest of the vehicle owner or driver in maintaining the privacy of his personal effects.
Defendant contends the police should be permitted to inventory and take note of only those items in the impounded vehicle that are in “plain view.” Under this rule, any inventory search beyond what could be seen in the passenger compartment of an automobile would go beyond the permissible scope of a reasonable search under the Fourth Amendment, and the search of the trunk of the vehicle driven by defendant would be unreasonable.
Support for this view is found in Mozzetti v. Superior Court, supra. That case arose out of the warrantless search of an unlocked suitcase observed by the police on the rear seat of an impounded vehicle during a routine police inventory. In the process of searching the entire car, including the glove compartment and trunk, the police discovered a bag of marijuana in the unlocked suitcase. As in the instant case, the search could not be justified on any basis other than the inventory of an impounded vehicle. The majority opinion was quick to disapprove those cases which had suggested a police inventory might be validated without reference to the requirements of the Fourth Amendment. As the court correctly pointed out:
“It seems undeniable that a routine police inventory of the contents of an automobile involves a substantial invasion into the privacy of the vehicle owner. . . . Merely because the police are not searching with the express purpose of finding evidence of crime, they are not exempt from the requirements of reasonableness set down in the Fourth Amendment. Constitutional rights may not be evaded through the route of finely honed but nonsubstantive distinctions.” (pp. 705, 706.)
The California court rejected the argument of the state that an inventory search into closed areas was reasonably necessary to protect the defendant’s personal property from loss or to protect the police from unfounded tort claims. It is sufficient, said the court, if the windows are rolled up, doors locked, and keys returned to the owner. If an inventory search is to be made, its scope must be limited to property in plain sight. The rule was expressed in the following language:
“We have no doubt that the police, in the course of such valid protective measures, may take note of any personal property in plain sight within the automobile being taken into custody. Any objects clearly visible without probing — including the suitcase in this instance — may be listed in an inventory or other police report. . . .” (p. 707.) [Emphasis added.]
We agree generally with the approach taken by the court in Mozzetti and consider it to represent the better reasoned position with regard to the validity of inventory searches. Valuables locked in the trunk of an automobile, as was the situation in the instant case, present no great danger of theft. We feel that any need to protect such items is outweighed by the countervailing interest of the individual in the privacy of the enclosed areas of his car.
None of the United States Supreme Court cases dealing with inventory searches provide much guidance, as they can all be distinguished on the basis of their peculiar facts. In Preston v. United States, supra, the defendant was arrested on a vagrancy charge while sitting in a parked automobile. The car was towed to the police garage where it was thoroughly searched. Based on evidence discovered in the trunk of the car as a result of the search, the defendant was convicted of conspiracy to commit robbery. On certiorari, the United States Supreme Court reversed, holding that the evidence obtained as a result of the search was inadmissible since it could not be justified as being incident to a lawful arrest. There was no mention of the police authority to search pursuant to an inventory at the stationhouse.
The holding of the Preston case was distinguished in the later case of Cooper v. California, supra, on the ground that in Preston there was no relationship between the arrest for vagrancy, the reason for seizing the vehicle, and the reason for searching it. In Cooper, the defendant was arrested on a narcotics charge and his automobile was impounded as “evidence” pursuant to a state statute permitting the forfeiture of vehicles used to transport narcotics. A warrantless search of the automobile conducted a week later was upheld by the court on the basis of the close relationship between the reason for the arrest of the defendant and the reason for the subsequent search of the automobile. The court emphasized that the test was the reasonableness of the search under all the circumstances and that it would be “unreasonable to hold that the police, having to retain the car in their custody for such a length of time, had no right, even for their own protection, to search it.” (pp. 61,62.)
In the per curiam opinion handed down in Harris v. United States, 390 U. S. 234, 19 L. Ed. 2d 1067, 88 S. Ct. 992, the court upheld the admissibility of evidence discovered in “plain view” during a search of an impounded vehicle. The case is distinguishable, however, based on the fact the car had been seized as evidence of a robbery. In a concurring opinion, Mr. Justice Douglas assumed that Preston survived this opinion since the police in Harris were performing their duty to protect the car and were not engaged in an inventory or other search of the car.
Other state and federal jurisdictions have considered the question of the reasonableness of an inventory search of an impounded vehicle and have reached differing results. In an article entitled, “Lawfulness of ‘Inventory Search’ of Motor Vehicle Impounded by Police,” 48 A. L. R. 3d 537, the annotator has collected and analyzed most, if not all, of the cases dealing with this subject. Although broad generalizations in this area of the law are to be avoided, we agree with the annotator’s conclusion that it is a universally accepted rule that the police may take note of any personal effects within plain sight in a lawfully impounded automobile. We concur with those courts which have held that an inventory search will not be upheld where it is shown that the police acted in bad faith in conducting the inventory, and used it as a subterfuge for a warrantless search. (See, Pigford v. United States, supra; State v. Montague, supra.)
In Pigford, the defendant was arrested on three outstanding traffic warrants as he sat in the driver’s seat of his parked car. When the defendant was unable to post the necessary collateral he was “put in the lockup.” Approximately one hour later the police made an inventory search of the vehicle, checking the glove compartment and trunk. In the trunk the police found a money order stamping machine and six blank money orders, all of which were later determined to be stolen. The District of Columbia Court of Appeals held that the search of the defendant’s automobile was in violation of the Fourth Amendment and the evidence was therefore held to be inadmissible. A persuasive factor for the court in reaching that conclusion was the circumstances under which the arrest and search took place. Rather than appearing to be an innocent inventory of the vehicle to protect the owner of the car, the circumstances pointed to a purposefully disguised exploratory search. The arresting officers were admittedly suspicious of the defendant as they thought he might be “casing” a restaurant for a possible robbery. After the search the officer failed to take the elementary precaution of locking the car doors. Since the initial seizure was illegal, items removed from the defendant as a result of the issuance of an arrest warrant were likewise inadmissible as the “fruit of the poisonous tree.” (Wong Sun v. United States, 371 U. S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407.)
It would serve no purpose to further recite cases from other jurisdictions dealing with the validity and scope of inventory searches. We recognize there is a definite split of authority. In the absence of a search incident to a valid arrest, and in the absence of probable cause for a search, we believe the better rule should limit a good faith inventory search of a lawfully impounded automobile to items within plain sight.
We also find the trial court erred in refusing to suppress and exclude testimony relating to defendant’s alleged confession of participation in the crime. Since the state concedes it used the incriminating items found in the trunk of the car to induce defendant to confess, the confession would be inadmissible as “fruit of the poisonous tree.” Wong Sun v. United States, supra; Pigford v. United States, supra.)
The decision and judgment of the trial court denying defendant’s motion for a new trial is hereby reversed and the case is remanded for a new trial. | [
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The opinion of the court was delivered by
Owsley, J.:
This is an appeal from a criminal conviction of theft as defined by K. S. A. 21-3701. Appellant-defendant Larry Norwood and co-defendant Gary Bogguess were charged jointly in a two count information on the crimes of burglary (K. S. A. 21-3715) and theft (K. S. A. 21-3701 [a]). A joint trial was held and on June 12, 1972, the jury returned verdicts in which Norwood was found guilty of theft, but not guilty of burglary; and Bogguess was found guilty of burglary, but not guilty of theft. Motions for a new trial, filed by each defendant, were granted by the trial court. Their motions for separate trials were denied and defendants were again tried jointly, with Norwood being found guilty of theft and Bogguess guilty of burglary. Subsequent motions for a new trial or judgment of acquittal were overruled and Norwood perfected this appeal, raising twelve points of error which he claims denied him his constitutional right to a fair trial. .
This case arose out of the theft of various items of stereo equipment from a duplex apartment rented by Carl Davis, Fred Johnson, and Charles Ervin. The other apartment in the duplex was rented by Davis’ sister, Ernestine Hollimon. Mrs. Hollimon testified that she returned to her home shortly before 8:00 o’clock on the evening of February 16, 1972. She heard “banging” noises next door and, assuming her brother was home, she went to his apartment. When she arrived, she almost “got run over” by Lairry Norwood who was racing from the apartment with a speaker under each arm and some tape cartridges in his hand. She testified that as Norwood went by her she heard someone from the house ask, “Did you get the other speaker?” Mrs. Hollimon also stated that she saw two other persons standing in the doorway to the apartment, one of whom she later identified as co-defendant Bogguess.
A police officer arrived on the scene a few minutes later and Mrs. Hollimon told him she had seen Norwood and another man take the stereo equipment from her brother’s apartment. The officer found Bogguess and another man outside the apartment and Mrs. Hollimon was able to identify Bogguess as the other person she saw taking the stereo equipment.
Carl Davis testified that on the day before the burglary both defendants had been in his apartment listening to music on the stereo that was later stolen. He further stated that he and his two roommates had gone out on the night in question, leaving the apartment unoccupied. When they returned, the back door had been broken open and several items of stereo equipment were missing.
Mrs. Hollimon testified she had known Norwood since high school and she had seen him often since then. She stated the last time she had seen Bogguess was when they were both in high school.
Norwood first claims he was prejudiced by various acts of misconduct on the part of both the trial judge and the prosecutor. Norwood contends the trial judge acted in such a manner that his bias in favor of the state was clearly apparent to the jury. At one point in his brief he states, “One evidence of his bias towards the state is evidenced in the fact that in his discreationary [sic] rulings were always such that the state benefited and the defendant lost. Such conduct in its self [sic] is suflScient to show partiality.” The argument is without merit. Ruling in favor of the state on procedural matters at trial is no more evidence of bias in favor of the state than would the mere fact of ruling for the defendant be evidence of partiality to the defendant. Ruling in favor of a party does not in itself indicate bias or partiality.
As specific evidence of judicial misconduct Norwood points to two segments of the trial in which the trial judge allegedly behaved in a biased manner. In the first instance he complains the trial judge assisted the prosecutor in framing a question to a witness. On direct examination of Charles Ervin the prosecutor asked him, “What was the value ... to you of the Home unit and the speakers?" Defense counsel objected to the form of the question and the prosecutor was ordered to rephrase it. Despite repeated efforts to properly state the question, objections were sustained by the court. Finally, the trial judge said he would allow the question if the prosecutor would not use the word “price.” After rephrasing the question in accord with the court’s suggestion, the prosecutor was able to elicit testimony to the effeot that in Ervin’s opinion the stereo was worth $120.00.
The second example of alleged bias on the part of the trial judge occurred during the closing arguments. Norwood complains that whereas the defense counsel was admonished by the trial judge when he strayed into the area of punishment, the prosecutor was not similarly warned when his argument strayed outside the evidence.
A defendant in a criminal trial is entitled to a fair and impartial trial. This includes the right to a trial before a fair and unbiased judge. The purpose of a trial in a criminal case is to ascertain the truth or falsehood of the charges against the defendant, and it is a part of the duty of the trial judge to see that the full truth is developed by the evidence. (State v. Jones, 204 Kan. 719, 466 P. 2d 283.) In order to achieve this purpose we have held it to be proper for the trial judge to use whatever means that reasonably appear necessary, under the circumstances, to develop fully the truth of the matter in issue. Such conduct by the trial judge does not constitute ground for a new trial unless it appears his action is of such a prejudicial nature it would tend to reasonably influence the minds of the jury against the defendant, thus denying him the right to a fair and impartial trial. (State v. Bean, 179 Kan. 373, 295 P. 2d 600.)
In State v. Atherton, 151 Kan. 370, 100 P. 2d 63, we approved the trial judge’s conduct in asking a witness “a few helpful questions designed to expedite the trial” touching on the subject of value. Similarly, in the instant case the trial judge assisted the prosecutor in phrasing a question as to value when confusion was created by general objections to the form of the question. Not only was no prejudice shown by defendant, but it appears the trial court’s conduct was a highly commendable effort to expedite trial and develop the full truth. Our examination of the entire record satisfies us the complaint of defendant as to the actions of the trial court did not result in any prejudice to defendant’s right to a fair trial.
We cannot agree with Norwood’s contention that the prosecuting attorney was guilty of prejudicial misconduct. He complains of the prosecutor’s remarks in his closing argument. At one point the prosecutor implied one of the state’s witnesses, Mrs. Hollimon, was subjected to “a lot of harassment.” Norwood claims any suggestion of harassment is without a basis in evidence and therefore improperly included in the closing argument. He also objects to the prosecutor’s statement to the jury that, ■ “This is your community, ladies and gentlemen. What you do here today in reaching your decision in this case is what we call justice.”
It is true that misconduct on the part of a prosecutor by going outside the record in the heat of final argument may be so gross and flagrant as to deny the accused a fair trial and require a reversal. (State v. Murrell, 215 Kan. 10, 523 P. 2d 348; State v. Kelley, 209 Kan. 699, 498 P. 2d 87.) Yet, in the absence of a showing that the objectionable statement made by the prosecutor was injurious to the defendant and was likely to affect the jurors to his prejudice, we will not require the granting of a new trial. (State v. Murrell, supra.)
Norwood has failed to convince us the prosecutor’s comments in any way prejudiced his right to a fair trial. At most, the statements concerning the harassment of a witness and the effect of a verdict on the community were improper statements, but not of such magnitude as to constitute prejudicial error. Accordingly, the trial court did not err in failing to grant a new trial or declare a mistrial as a result of the prosecutor’s closing argument.
Norwood next contends the trial court erred in admitting rebuttal testimony of a state’s witness when such testimony was no more than a restatement of his testimony in the state’s case-in-chief. The testimony was given by Detective Lewis Brown on rebuttal in response to the question of whether he had ever told Bogguess he was out to get Norwood. Detective Brown replied in the negative.
Rebuttal testimony is, generally speaking, evidence presented in denial of some fact which the adverse party has attempted to prove. (State v. Freeman, 195 Kan. 561, 408 P. 2d 612.) It is clearly within the discretion of the trial court as to whether rebuttal evidence is allowed, and the ruling of the court will not be ground for reversal unless it appears the discretion has been abused to the prejudice of the defendant.
The state’s brief contains what is designated as a Supplemental Record on Appeal. The testimony reproduced therein purports to be evidence introduced by defendant to the effect that Detective Brown told Bogguess he was out to get Norwood. The state offers this segment of the transcript as justification for its later rebuttal testimony. The record contains no other testimony which related to Detective Brown’s statement. Although there is no authorization in our appellate procedure for the filing of supplemental records in this manner, we are convinced the rebuttal testimony had no effect upon the guilt or innocence of defendant and we cannot assign prejudicial error in its introduction.
Norwood further complains the trial court erred in allowing the state to cross-examine him on matters which were incompetent, immaterial, and outside the scope of direct examination. During cross-examination the prosecutor asked Norwood where he had been between the hours of 10:00 and 12:00 p. m. The only response elicited was that he had been at the pool hall.
Questions asked on cross-examination must be responsive to testimony given on direct examination, or material and relevant thereto; and resolution of such issues resides in the sound discretion of the trial court, which will not be disturbed unless an abuse is shown. (State v. Nirschl, 208 Kan. 111, 490 P. 2d 917.)
On direct examination Norwood was questioned by his counsel as to his whereabouts between the hours of 7:00 and 10:00 p. m. on the night in question, and as to his arrest at midnight. By introducing evidence of his activities during these time periods, defendant opened up the question of his whereabouts during the two-hour time gap previously unaccounted for. Such an inquiry on cross-examination was clearly relevant, competent and logically related to Norwood’s testimony on direct examination.
Norwood also complains the trial court erred when it allowed his prior trial testimony to be introduced by the state in its casein-chief. In the prior trial, Norwood took tire stand and testified he had been at home with his mother until after 10:00 p. m. In the instant trial the court reporter took the stand and read this testimony to the jury. Then Detective Brown testified Norwood told him on the day after the crime that he had spent the entire evening at the B & J Steak House. After the state rested its case the defense called Norwood to the stand and he testified he was not at the scene of the crime between the hours of 7:00 and 10:00 p. m. and that he was at the pool hall between 10:00 and 12:00 p. m. He did not testify, however, as to where he was at the time of the crime, although when his mother was called as a witness by the defense she stated he was home with her from 6:00 until 10:00 p. m.
Norwood argues his prior trial testimony was offered to impeach his credibility and as such it was inadmissible since he had not yet taken the stand. There is no question the prior testimony alone is exculpatory in nature and would not constitute an admission on his part. Yet, his former testimony was offered by the state in conjunction with an inconsistent statement he made to Detective Brown. Both statements were relevant to a material issue in the case; i. e., his whereabouts during the time of the crime. In view of the fact these statements were inconsistent, we believe it was relevant as tending to show defendant’s guilt. False exculpatory statements made by a defendant are admissible to show a consciousness of guilt and unlawful intent. (United States v. Tager, 481 F. 2d 97 [10th Cir. 1973].) In an early Kansas case this court stated:
. . It is always competent to show the statements and claims made by a person charged with crime with reference thereto, and to show that such statements are false. The fact that a defendant in a criminal case resorts to falsehood is a circumstance which may, in connection with other facts in the case, tend to prove guilt.” (State v. Oliver, 55 Kan. 711, 41 Pac. 954, p. 714.)
The former testimony of the defendant was properly admitted for the purpose approved herein and no error has been shown.
Norwood argues the trial court erred in instructing the jury regarding the use of prior testimony for impeachment purposes. Instruction No. 13 reads in part:
“The credibility of a witness may be attacked by: evidence that on some former occasion he or she testified or gave a statement inconsistent with his testimony in this case on a matter material to the issues.
. . It is for the jury to decide whether or not that testimony or prior statement is inconsistent with testimony given by those witnesses in this case, and if so, you may consider evidence of this kind, in connection with all the other evidence, as it may have a bearing on impairing his credibility as a witness, that is, in deciding the weight and credit to be given the testimony of that witness.”
Norwood waived his privilege not to be called as a witness and not to testify by voluntarily becoming a witness. So waived, his status as a witness became the same as any other witness. For the purpose of impairing his credibility any party may introduce “extrinsic evidence concerning any conduct by him and any other matter relevant upon the issues of credibility.” (K. S. A. 60-420.) Although we hereinbefore stated the former recorded testimony was admissible for other reasons, we sec no basis for not considering the evidence on the issue of credibility. We find no error in Instruction No. 13.
Norwood also reasserts his objection to Instruction No. 11 on aiding and abetting. The trial court gave the following instruction:
“You are instructed that under the law of the State of Kansas, anyone who counsels, aids, abets, or assists another or others in the commission of any crime, either by conspiring, counseling, advising, or assisting in any manner in the preparation, completion, or concealment thereof, is equally guilty with the one actually committing the crime without regard to the extent of their participation.
“You are, therefore, instructed in this case that if you find beyond a reasonable doubt that either defendant conspired, counseled, aided, abetted, advised or in any manner assisted others in the commission of the crime or crimes charged in the Information, as elsewhere defined in these instructions, then he, individually, is guilty of such crime as though he, by himself, without assistance, committed those crimes.
“In connection with this instruction, the jury is admonished not to speculate concerning whether or not either or both defendants could have been charged with other offenses arising out of the incident. Matters of that kind are solely the responsibility of the courts and prosecuting authorities.”
The thrust of Norwood's argument on this point is that there was no basis in evidence for such an instruction since the co-defendant Bogguess was acquitted of theft and defendant Norwood was acquitted of burglary. He argues in order for such an instruction to be properly given it is necessary that there be some other person who could have been aided and abetted. This was impossible under the present circumstances, argues defendant, since Bogguess had already been acquitted of theft. Although he cites no supporting authority, Norwood concludes one cannot aid and abet another who has already been acquitted of the crime charged.
Norwood’s position is in direct contradiction to K. S. A. 21-3205, which provides in subsection (3) thereof:
“A person liable under this section may be charged with and convicted of the crime although the person alleged to have directly committed the act constituting the crime lacked criminal capacity hr has not been convicted or has been acquitted or has been convicted of some other degree of the crime or of some other crime based on the same act.”
Under this statute it would be permissible to convict Norwood of aiding and abetting Bogguess for the crime of theft even though Bogguess had previously been acquitted of theft. The evidence shows Norwood, along with Bogguess and possibly two other persons, was seen coming from Carl Davis’ apartment with stereo equipment. As they were leaving one of the group said, “Did you get the other speaker?” Based on this evidence it was proper for the trial court to give an instruction on aiding and abetting.
We cannot say the trial court erred in including the final paragraph of the instruction admonishing the jury not to speculate as to whether the defendants could have been charged with other offenses arising out of the incident. Considering this instruction in light of all the instructions given, we find no prejudice flowing from the trial court’s instruction to the jury not to speculate on other charges.
Norwood next contends the trial court erred when it refused to grant separate trials to the defendants. Following the initial trial both defendants filed motions for separate trials which were subsequently denied. Norwood argues the facts have changed as a result of the first trial and a joinder that was proper before the first trial became improper afterwards. He claims by virtue of the acquittals in the first trial the two defendants could not have been involved in the same act or transaction.
The statutory guidelines for joinder of defendants are found in K. S. A. 22-3202 ( 3):
“Two or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes. . .
The information under which the two defendants were originally charged alleged both Norwood and Bogguess were involved and participated in the same burglary and theft, at the same place and at the same time, and that they did it together. Despite the fact Norwood was acquitted of the burglary and Bogguess was acquitted of the theft, the evidence and the allegations remain that both defendants were participating in the same act or transaction. Under these circumstances the defendants were properly charged in the same information under 22-3202.
Even if the defendants were properly joined under the same information, Norwood contends he should have been granted a separate trial pursuant to K. S. A. 22-3204, which provides the court may order a separate trial when requested by the defendant or the prosecuting attorney. This is a matter properly left to the discretion of the trial court. Norwood has failed to offer any proof of an abuse of that discretion and we conclude the trial court did not err in denying defendants’ motions for separate trials.
Finally, Norwood contests the sufficiency of the evidence. On appellate review of a criminal conviction the test is not whether guilt was established beyond a reasonable doubt, which was a matter for the jury, to decide, but whether there was a basis in the evidence for a reasonable inference of guilt. (State v. Johnson, 210 Kan. 288, 502 P. 2d 802.) It would serve no purpose to review the evidence beyond what has been disclosed in this opinion. It is sufficient to say there is a basis in the evidence for a reasonable inference of guilt.
We find no error of a prejudicial nature and the judgment of the trial court is affirmed.
Fromme, J., not participating. | [
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Per Curiam.
Affirmed.
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The opinion of the court was delivered by
Foth, C.:
At approximately 5:15 p. m. on October 10, 1973, the Wichita City Teachers Credit Union was robbed at gunpoint of approximately $500. In a joint jury trial defendants' Jackie B. Reynolds and Val Gene Williams were both convicted of aggravated robbery as being two of the three participants in the crime. Reynolds was also convicted of the possession of a pistol after a prior felony conviction. Both defendants appeal, claiming procedural errors.
Defendant Williams makes six separate claims of error, defendant Reynolds only two. The two claims common to both defendants will be dealt with first.
Just before it rested the state was granted permission to endorse the name of a police officer as an additional witness. The officer testified that the guns recovered when the defendants were arrested were loaded with live ammunition and capable of being fired. The prosecutor had expected another officer to be able to supply this testimony.
Under K. S. A. 22-3201 (6) the trial court is to exercise its discretion as to whether it will allow the endorsement of additional witnesses during trial, and its ruling will not be disturbed unless abuse of that discretion is shown. The test is whether or not the defendant’s rights have been unfairly prejudiced. State v. Smith, 215 Kan. 34, 523 P. 2d 691; State v. Stafford, 213 Kan. 152, 515 P. 2d 769.
The objection by the defendants at trial was that the testimony was irrelevant. On appeal their contentions lean more to the claim that it is of an inflammatory nature and unduly influenced the jury. At neither stage is there a claim that defendants were surprised by the testimony, or that their trial strategy would have been any different had they been given fair warning that this particular witness was going to testify. His testimony added little, if anything, to the state’s case. There was no prejudice, and no abuse of discretion.
The second claim defendants have in common is tihait the state formally offered its seventeen exhibits into evidence, en masse, at the conclusion of its case in chief. Each had been identified at some point earlier in the trial. The defendants assert that this bulk offer confused the jury and deprived counsel of an adequate opportunity to cross-examine the identifying witnesses. Although the record does not indicate in every instance that the witnesses were in fact cross-examined with particular reference to 'the exhibits now complained of, a full opportunity for such cross-examination was provided the defendants.
The trial court voiced strong disapproval of the procedure employed by the state, with some justification. We think it better practice for a party to offer an exhibit or a group of related exhibits into evidence as soon as a sufficient foundation has been laid. In this way court and counsel can focus their attention on one piece of evidence at a time. If there are deficiencies in the foundation it may be possible to cure them by a few additional questions to a witness on the stand. On the other hand, if the offer is made at the close of the offering party’s case it may be necessary to recall, if possible, one or more witnesses to supply the missing pieces.
But regardless of which procedure may seem preferable as making for a more orderly trial, there was no error here. The controlling factor is that neither defendant now makes any claim that any one of the exhibits was inadmissible.
The remaining four allegations of error are made by defendant Williams alone:
He asserts that it was error for the trial court to deny his motion for a separate trial from Reynolds. Both defendants were charged with aggravated robbery, but an additional charge of unlawfully possessing a pistol was levied against Reynolds. This charge against Reynolds, claims Williams, is totally unrelated to the robbery charge against him and therefore the joinder of the two defendants was improper.
K. S. A. 22-3202 ( 3) states that “[t]wo or more defendants may be charged in the same complaint, information or indictment if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions constituting the crime or crimes. Such defendants may be charged in one or more counts together or separately and all of the defendants need not be charged in each count.” (Emphasis added.)
The trial court, in denying Williams’ motion for a separate trial stated: “[The] aggravated robbery occurred at the time and place and was committed by Mr. Reynolds and Mr. Williams. Appended to that charge is an allegation that Mr. Reynolds had a revolver. That was part and parcel of the initial crime and as such the cases are proper for joinder.” The trial court’s analysis of the issue and finding thereon are eminently correct. The defendants were, as the statute requires, “alleged to have participated in the same act or transaction.” The presence of the gun was an essential part of that “act or transaction.” And, as the statute says, “all of the defendants need not be charged in each count.”
Fed. R. Crim. P. 8 (b) is identical to our K. S. A. 22-3202 ( 3). The federal courts universally hold that joinder is proper under circumstances like these. See United States v. Roell, 487 F. 2d 395 (8th Cir. 1973); United States v. Roselli, 432 F. 2d 879 (9th Cir. 1970); Williams v. United States, 416 F. 2d 1064 (8th Cir. 1969); and Scheve v. United States, 184 F. 2d 695 (D. C. Cir. 1950).
Williams’ next claim is that the trial cour erred in not sustaining his motion for discharge at the close of the state’s evidence. The question is whether there was any evidence from which the jury might reasonably have drawn an inference of guilt. State v. Gustin, 212 Kan. 475, 510 P. 2d 1290; State v. Anderson, 211 Kan. 148, 505 P. 2d 691; State v. Dill, 182 Kan. 174, 319 P. 2d 172.
The state’s evidence was that Detective Sergeant Merle Nelson was in his car just a few blocks away when he heard the dispatcher broadcast that a silent alarm had been tripped at the credit union. He hurried to the scene and saw two men (one of them Reynolds) leave the credit union, guns in hand, carrying a pink pillow case in which they had stuffed the loot. He saw them hurry across a street, up an alley and directly to a parked car. He saw them bend over as if about to enter the car’s open door on the right side. When he identified himself as a police officer and shouted for them to stop, one of the men turned, raised his right arm and pointed it at the detective. When the detective fired a shot, a man later positively identified by Detective Nelson as Williams got out of the car on the driver’s side and raised his right arm toward the detective. The detective fired more shots in the direction of Williams, who ran. Williams was later taken into custody only a short distance from the confrontation by another police officer. Two pistols were found on the ground in front of the car. A third was recovered from a toilet tank in a garage rest room where Reynolds was apprehended. The car was registered to Williams. We think there was ample evidence from which the jury could infer that Williams was driving a getaway car, and the 'trial court properly overruled his motion for discharge.
Williams also complains of the following instruction:
“A person is responsible for the conduct of another when, either before or during the commission of a crime, and with the intent to promote or assist in the commission of the crime, he intentionally aids or advises the other to commit the crime. All participants in a crime are equally guilty, without regard to the extent of their participation.”
In drafting this instruction the trial court used PIK 54.05 as a foundation, adding only the last sentence. When making his objection to this instruction at the trial, counsel for the defendant stated: “I have no objection to the typed portion of the Instruction, because I think it conforms to the case law in Kansas and also the PIK, which has been generally accepted.” It was only the last sentence which he claimed was error, as “calling more attention to that [principle] than is required by the law.” On appeal he oscillates slightly in saying that “The last sentence of the instruction does not add anything to the first part of the instruction and only tends to confuse the jury.”
The instruction given clearly reflects the law of this state in regard to the liability of a person for the crimes of another. State v. Schriner, 215 Kan. 86, 523 P. 2d 703; State v. Ingram, 211 Kan. 587, 506 P. 2d 1148. The sentence complained of as being confusing to the jury was drawn verbatim from this court’s opinion in State v. Turner, 193 Kan. 189, 196, 392 P. 2d 863. It was a correct statement of the law when made in the Turner case and remains so.
Williams’ final point deals with the trial court’s refusal to grant him a new trial, based on two alleged irregularities.
The first occurred during the cross-examination of a security guard for the credit union by the attorney for Reynolds. In answer to the question, “Which of the two men that came in got your pistol?” he answered, “He isn’t here. This fellow here [indicating defendant Williams] must be the driver, because. . . .” Counsel for Williams immediately objected and the trial court sustained the objection, directing the jury to disregard the statement.
Generally an error in the admission of evidence is cured by a prompt withdrawal and an admonition by the corut to the jury to disregard it. State v. Mans, 213 Kan. 36, 515 P. 2d 810; State v. Beam, 175 Kan. 814, 267 P. 2d 509; State v. Bell, 109 Kan. 767, 201 Pac. 1110. In the absence of evidence to the contrary this court will assume that the jury followed the lower court’s admonition. State v. Potts, 205 Kan. 42, 468 P. 2d 74.
The second basis of his demand for a new trial is that there was no evidence that Williams was ever informed of his constitutional rights at the time of his arrest. The argument is frivolous. No statement of the defendant Williams was admitted. All evidence introduced by the state came directly from the crime scene, from eyewitnesses to the crime, and from the subsequent police chase. Therefore whether or not proper warnings were given is immaterial. State v. Kilpatrick, 201 Kan. 6, 439 P. 2d 99; McCall v. State, 196 Kan. 411, 411 P. 2d 647; Fields v. State, 195 Kan. 718, 408 P. 2d 674.
The convictions are affirmed.
approved by the court.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action to recover damages for injuries suffered by Nannie Arnold, the wife of John Arnold, on highway No. 75, near the line between Coffey county and Osage county. It is brought under the statute making the county liable for damages sustained through the defects in a highway where five days’ actual notice or knowledge of the defect has been brought to the chairman of the board of county commissioners. The defect in question was a ditch or hole in the highway at the end of a culvert.
One of the questions raised is that there was not sufficient notice brought to the chairman of the board; and another is that the plaintiff’s wife was herself guilty of contributory negligence. The story of the accident and the resulting injury, as well as the nature of the defect in the culvert, was sufficiently told in the earlier appeal of Arnold v. Coffey County Comm’rs, 131 Kan. 343, 291 Pac. 762, and need not be fully repeated here. When the culvert was built in 1922 W. F. Duffy was chairman of the board of county commissioners of that county, and held that office until 1924, when he was succeeded by F. H. Jennings, who occupied the position when the accident occurred, on October 9,1927. Duffy, it appears, knew that no guard rails had been built at the ends of the corrugated iron culvert across the highway. It was twenty-four feet long, covered with three inches of dirt and there were openings at each end to drain water into the ditches on each side of the road. In answer to special questions the jury, among other things, found that Jennings did not have actual notice or knowledge of the defect for more than five days prior to the time of the injury in question.
It was also found that Mrs. Arnold by her negligence contributed to her injury. It appears that the Arnolds were driving north from Independence to a point in Osage county. They reached the line between Coffey and Osage counties in the evening. The lights on the automobile had been burning for some time and Mr. Arnold, as he approached the line, discovered a number of road signs at an intersection and drove his automobile to the right side of the road, leaving it partly on the traveled way and partly on the grass and weeds at the side of the road. He stopped his car and went across the road that he might read the signs at the intersection. After he started across, Mrs. Arnold left the car on the right side, stepping into the weeds and grass, and after going two or three steps she stepped into the drain about fifteen inches deep at the end of the culvert and was injured.
The jury found that she was guilty of negligence, and her negligence consisted in getting off the traveled part of the highway in grass and weeds while driving on a strange road and not using due care and caution. They also found .that, even if there had been a guard rail there at the end of the culvert, she would have sustained the injury. So far as the notice is concerned, Duffy knew that no guard rails had been erected at the end of the buried iron pipe, as the statute required, and it is contended that the notice to Duffy of the absence of the guard rails bridged over to October, 1927, when the injury was sustained, and for about three years after Jennings was inducted into office as successor to Duffy. Defendant insists that the notice was too remote to be effective and that notice or knowledge should have been brought and established as to Jennings. As we have seen, the jury found that Jennings did not have actual notice or knowledge of the defect more than five days prior to the accident.
Plaintiff further insists that under the statute it was the duty of the county commissioners to make annual inspections of the bridges and culverts for the purpose of ascertaining their condition, and the defendant therefore cannot urge that Jennings did not have actual knowledge of the defect. In view of the finding that Mrs. Arnold was guilty of contributory negligence, and that there is evidence to support it, we find it unnecessary to determine the question as to the sufficiency of the notice to the chairman of the board of county commissioners.
The statute under which the action is brought provides in effect that no one can recover damages because of the defects mentioned who is guilty of contributing negligence to his injury. (R. S. 68-301.) The nature of the action, the elements of liability necessary to a recovery and the procedure in establishing the right, are carefully and fully stated in Arnold v. Coffey County Commissioners, supra. To recover- for damages arising from a defect in a bridge, culvert or highway, the injured person must have been “without contributing negligence on his part.” Contributory negligence is to be alleged and established by the defendant. In the answer of defendant contributory negligence was sufficiently alleged as follows:
“Further answering; this defendant says that if the said Nannie Arnold received the injuries alleged in said plaintiff’s petition, which this defendant denies, that by her acts and negligence she contributed thereto in the following particulars, to wit: That on the evening of about October 9, 1927, the said Nannie Arnold was riding along said highway No. 75 in an auto with the plaintiff herein; that a short distance south of the Osage county line said auto was stopped; that at the time same was stopped it was dark; that the said Nannie Arnold, for her own convenience, got out of said auto without looking or observing where she was going or what she was getting into; that said highway was a strange highway to the said Nannie Arnold and she got out of said auto as aforesaid and into the weeds and grass outside the traveled and maintained part and portion of said highway and without looking or observing where she was going or what she was getting into, started north and stepped or fell into a ditch and received whatever injury she received,’ if any.”
It is not easy to understand why Mrs. Arnold left the automobile on the right-hand side of the car and ip the darkness wandered away through the grass and weeds instead .of alighting on the traveled way on the other side of the car, which was free from the perils she encountered. She must have known that only a part of a country highway was improved and prepared for public travel, and that on either side of the improved part were excavations made to drain water from the traveled way. It was not incumbent on the county to keep the full width of a county road open and fit for travel. It is generally held that if it was open and improved for a sufficient width to make it reasonably safe and convenient for ordinary travel, it is enough, and that if the local authorities do so, it is not compelled to keep the sides of the prepared way free from obstructions. (13 R. C. L. 379.)
It was shown that the improved part of the highway was twenty-four feet wide and that this part of it was reasonably safe for public travel. It does not appear that any emergency arose which justified Mrs. Arnold in alighting in the grass and weeds. In McFarland v. Emporia Twp., 59 Kan. 568, 570, 53 Pac. 864, the court said: “It is well settled that the public is not bound to make the whole width of a highway passable.” (See, also, Martin v. City of Columbus, 93 Kan. 79, 143 Pac. 421.) In Watson v. Parker Township, 113 Kan. 130, 213 Pac. 1051, it was said:
“Defendant oites many cases which hold, in substance, that it is not necessary to keep the full width of a rural highway fit for public travel, and that where a sufficient portion of its width is maintained in a safe and passable condition to serve the reasonable needs of the public in that locality, the fact that outlying and unused portions of the road are impassable or dangerous, and yet without barriers, does not constitute the sort of defect for which the municipality or quasimunicipality is liable.” (p. 132.)
Under the statute Mrs. Arnold was required to use due care for her own safety, and how can it be said that one who left the traveled way in the nighttime and went out in the grass and weeds on the unimproved side of the road, was in the exercise of due care. It has been said:
“One who voluntarily and unnecessarily deviates from the traveled part of a highway and in so doing meets with an accident from some cause, outside of the traveled way, cannot as a general rule recover for injury sustained.” (29 C. J. 703.)
Again it has been said that—
“Where a traveler carelessly or unnecessarily, for his own convenience, leaves the street and in so doing meets with an accident, outside of its limits, the municipality is not liable no matter how near the street the obstruction which causes the injury may be.” (43 C. J. 1093.)
Under the circumstances as shown by the evidence it must be held that the contributory negligence of the injured person at least became a question of fact for the determination of the jury. There were some conflicts in the evidence touching the matter of contributory negligence, but these have been settled by the jury and it has found upon what appears to be sufficient evidence that her own negligence contributed to her injury.
Some criticisms of the instructions are made, but an examination of these satisfies us that there was no material error in them.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
Two cases here on appeal from the district court of Wyandotte county have been on motion in this court consolidated. One is a delinquent tax foreclosure action brought by the board of county commissioners in which judgment had been rendered, sheriff’s sale had and sale confirmed. Later the sale and confirmation as to one particular lot was set aside and the purchaser, as an intervener, appeals. The other case is a mandamus action brought by the same purchaser against the sheriff to require him to issue deed to the pur chaser. The trial court denied the writ, from which order the plaintiff appeals.
Judgment was rendered for the county in the foreclosure action on June 20, 1930. Sheriff’s sale was had on August 11, 1930, at which the intervener purchased the property described as No. 82, being lot 4, block 4, Orr’s second addition to Kansas City, Kan., for $90 and paid that amount to the sheriff. On September 11,1930, the sale was on motion of the county attorney confirmed and deed ordered. Later a motion was filed by the county attorney to set aside the sale and confirmation of sale of this one lot because of being left on the list and sold by mistake. This motion was heard and sustained on the 8th of November, 1930, which was within the same term as that at which the sale was confirmed, viz., the September, 1930, term beginning on the second Monday of September, which was September 8, 1930, but not at the same term as that at which the judgment was rendered on June 20, 1930.
The purchaser of said lot, as an intervener, filed a motion to set aside and hold for' naught the order of court made November 8, 1930, setting aside the sale and confirmation of sale of said lot. This motion was heard on March 21, 1931, and overruled. From this judgment and order-the-intervener appeals.
On October 17, 1930, this purchaser at the sheriff’s sale applied to the district court for a writ of mandamus against the sheriff of Wyandotte county to require him to issue a deed to plaintiff as purchaser, and the same day an alternative writ of -mandamus was issued requiring the sheriff to issue such deed to the plaintiff or show cause. The sheriff answered admitting all the allegations of the alternative writ, but alleged that he had been requested by,,the county attorney of that county not to issue to -the purchaser, a deed to this particular tract for the reason that he, the county attorney, had made a promise to the Owner thereof that he would take said property out of the sale list upon payment of taxes, and that the same would not be -sold,- but through an error and mistake it was not removed from-.the. list and it was sold, and that the owner was able at the time of the sale to pay the taxes against The property.
On November 8, 1930, a hearing was had on the alternative' writ-, at which the county attorney and sheriff testified as -toThe-reasons why the deed had .not been issued, showing, also, that on November 5, 1930, the full amount of the taxes due on said.property had been fully paid by the pwner thereof in the sum of $212.99. The trial court d'enied the writ. Plaintiff appeals.
The purchaser claims he has rights as an innocent purchaser of which he cannot be deprived after the regularity of tire sale has received the approval and confirmation of the court; that although the confirmation was had at the same term that it was later set aside-, yet his rights relate back to the date of the judgment authorizing and directing the sheriff’s sale at an earlier term; that R. S. 79-2803 limits the right to withdraw from the list of property for sale in a foreclosure action to those properties only on which the taxes were paid “before the day of sale.”
In addition to the statute, R. S. 79-2803, appellant cites two cases construing it as applying to cases where the taxes are paid or tendered prior to the date of the sale, viz., Wyandotte County v. Kerr, 112 Kan. 463, 211 Pac. 128, and Montgomery County v. Wilmot, 114 Kan. 819, 221 Pac. 276. The former was where a defendant lot owner endeavored to open.up a judgment where service had been had upon him by publication, and his answer was held insufficient because it did not show a payment or tender of payment of all the taxes prior to the date of the sale. The second case cited was where the taxes due had been paid to the county treasurer before the date of the sale instead of the clerk or sheriff, as provided by law, but the lot was sold just the same, sale confirmed and deed had been issued and on record for six months before application had been made to set aside the judgment. This case as well as the former adheres to the statutory requirement of payment before date of sale. Both these efforts to dispose of the judgments rendered were under a provision of the statute imposing certain conditions for opening up a judgment. The first one failed to meet those conditions, the latter met them.
The case at bar was an appeal to the discretion of the court because of a mistake of a county officer in complying with his promise to withdraw the lot from the sale list. True, the lot owner had no right or authority to demand its withdrawal without paying the taxes in full before the day of sale. But it was within the discretion of the court to respect that promise of the attorney for the plaintiff and in doing so consider the best interests of the county by its being able thereby to collect $212.99 taxes from the owner instead of $90 from the purchaser.
It was not the lot owner that asked that the sale and confirmation thereof be set aside in this case, as in the two cases above cited. Here it was the plaintiff, the board of county commissioners, that filed the motion and made the request. The proceeding was in its favor and it files the motion to' set it aside. The origin of the whole proceeding was with the board (R. S. 79-2801). The plaintiff board, through the county attorney, showed to the court a mistake had been made as to the sale of this lot, and the court in its discretion granted the request by setting aside the sale and confirmation at the same term at which the confirmation was made. R. S. 60-3007, third subdivision, grants such right at or after the term. But the common law places in the breast of the court all its decisions, orders and judgments rendered during the term, with full power to alter, change or set them aside during the term, in the discretion of the court.
“It was one of the earliest doctrines of the common law that the record of a court might be changed or amended at any time during the same term of the court in which a judgment was rendered, and now as then the general power of a. court of record over its own judgments, orders and decrees during the existence of the term at which they are first made is undeniable.” (15 R. C. L. 677.)
“A court has full control over its orders or judgments during the term at which they are made, and may, upon sufficient cause shown, in the exercise of its sound discretion, amend, correct, revise, supplement, open or vacate such judgments. This was the rule at common law, and it prevails in almost all jurisdictions.” (34 C. J. 207.)
“Rule applied that the district court has absolute control of its judgments during the term at which they were rendered.” (Sylvester v. Riebolt, 100 Kan. 245, syl., 164 Pac. 176.)
“During the term at which a judgment is entered the trial court has complete control of that judgment, and may permit amendments to pleadings in furtherance of justice even after judgment, and may grant a new trial thereon; and if the trial court is not satisfied that the litigants have received substantial justice, it may and should grant a new trial.” (Beachy v. Jones, 108 Kan. 236, syl. ¶ 4, 195 Pac. 184. See, also, Adams v. Devalley, 40 Kan. 486, 20 Pac. 239; and State, ex rel., v. Sowders, 42 Kan. 312, 22 Pac. 425.)
We see no abuse of discretion whatever in setting the sale and confirmation aside and thus permitting the lot owner to pay the full amount of the taxes, which she had done before the motion was sustained, even if the payment was not made before the date of the gale.
Appellant insists upon his rights as a purchaser and as an innocent purchaser. Of course, the purchaser as such has certain rights, but not as an innocent purchaser. In the Wilmot case, supra, cited by the appellant, it is stated that such a purchaser is not a purchaser in good faith, but is one to whom the rule of caveat emptor applies.
“This raises the question of whether the purchaser at a sheriff’s sale in the foreclosure of a tax lien by the county is a purchaser in good faith within the meaning of the statute quoted. Ordinarily a purchaser at a tax sale is not a purchaser in good faith. The rule of caveat emptor applies to him.” (Montgomery County v. Wilmot, 114 Kan. 819, 823, 221 Pac. 128.)
The motion of the appellant as an intervener and his petition for a writ of mandamus simply raise the question of the legality of the action of the trial court in setting aside the sale and confirmation of sale. And since we have concluded there was no abuse of discretion in setting the sale and confirmation aside, it follows that there was no error in the overruling of the intervener’s motion to set aside that order, nor in denying appellant’s application for writ of mandamus.
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The opinion of the court was delivered by
Smith, J.:
This was an action to partition real estate. Judgment was for plaintiff. Defendants appeal.
The parties to the action are Mary A. Wentworth, the widow of Wallace W. Wentworth, who brought the action, and several of the children of Wallace by a former marriage. The basis of the claim of Mary A. Wentworth is that at the time of the death of her husband they each owned an undivided one-half of the real estate in question and that on his death she became entitled to her undivided one-half plus a widow’s share of the undivided one-half which her husband had owned. The trial court adopted this view and decreed her to be the owner of an undivided three-fourths interest. It is from that judgment that this appeal is taken.
Wallace W. Wentworth and Mary A. Wentworth were married in 1898. Both had children by a former marriage. Both owned real estate at the time of their marriage. Without setting out details, at the time of their marriage each owned about the same amount of real estate.
Along in 1908 Mr. Wentworth became involved in financial difficulties. He admitted he owed the Citizens and Farmers State Bank $5,000. The bank claimed that he owed about $2,100 in addition. He was also involved with the Security State Bank in the amount of $2,704.29. S. J. Gilbert was the president of that bank. On November 4, 1908, the Citizens and Farmers State Bank closed its doors and went into the hands of a receiver. This receiver immediately began pressing for payment of the amount claimed to be due the bank.
On November 17, 1908, Mr. and Mrs. Wentworth executed a mortgage to the bank on some lots owned by them in Arkansas City in the amount of $4,000.
At the same time Wallace W. Wentworth and Mary A. Went-worth executed a warranty deed to S. J. Gilbert for eighty acres of land that Wallace W. Wentworth had deeded to his wife when they were married, the 240 acres that stood in the name of Wallace W. Wentworth, and an undivided half interest in eighty acres which he had inherited from his first wife. At the same time all this real estate was conveyed back to “Wallace W. Wentworth and Mary A. Wentworth, husband and wife, jointly” except for the undivided one-half interest in the eighty acres which he had inherited from his first wife, and that was conveyed to Wallace W. Wentworth. These conveyances were by quitclaim deeds signed by Mr. and Mrs. Gilbert. The deeds to the Wentworths were immediately delivered to them and remained in their possession. These deeds were not recorded till the indebtedness of Wallace W. Wentworth to the Security State Bank was paid. On November 11, 1908, Mr. and Mrs. Wentworth joined in a conveyance of 159 acres of land that had been left her by her first husband, and an odd lot, called lot 5, containing thirty-two acres, which had belonged to Wallace W. Wentworth at the time of his marriage. This land was sold for about $4,775. This money was used to pay debts of Mr. Wentworth.
In reply of appellee she alleged that the conveyances spoken of heretofore to the Gilberts were made “to protect the said Wallace W. Wentworth, as he thought and believed, against unjust and illegal demands of said Citizens and Farmers State Bank and the receiver thereof,” and on her cross-examination by counsel for appellant she testified as follows:
“Q. Then you executed a deed to Gilbert to put all of that land out of your hands so the bank couldn’t get it? A. So the bank couldn’t get the twenty-one hundred. We expected to pay what we owed.”
The petition alleged that at the time of the death of Wallace W. Wentworth the plaintiff and Wallace W. Wentworth were the owners in fee simple in equal undivided one-half interests, standing in their joint names, of the real estate in question. It was upon' this allegation that appellee based her claim to an undivided one-half plus an undivided one-fourth. The answer of defendants alleged that while the real estate in question did stand in the joint names of Wallace W. Wentworth and Mary A. Wentworth, still Mr. Went-worth really was the sole owner in fee simple of the real estate in question. In the answer they set out the conveyances that have been spoken of heretofore and alleged that the conveyances to Gilbert were mortgages and for the benefit of the bank, and the conveyances to Mr. and Mrs. Wentworth from the Gilberts were releases of their mortgages. The reply of appellee denied this and contained the allegations heretofore spoken of.
It will be seen that a clear-cut issue of fact is made out by these pleadings.
The court made extensive findings of fact. Those material here are as follows:
“23. The court further finds that the quitclaim deed dated and acknowledged the 17th day of November, 1908, from Samuel J. Gilbert and Martha E. Gilbert, his wife, to Wallace W. Wentworth and Mary A. Wentworth, husband and wife, jointly, conveying:
“ ‘The W% of the NE1^ and the NW14 of sec. 33, twp. 34, range 2 east, and the N% of the SW% of see. 32, twp. 34, range 2 east, Sumner county, Kansas,’
and filed for record on the 26th day of April, 1909, in the office of the register of deeds of Sumner county, Kansas, was a conveyance of said property to said Wallace W. Wentworth and Mary A. Wentworth, jointly, and not the release of any mortgage or deed given or intended to be a mortgage or security for any debt.
“24. The court further finds that at the time of the death of Wallace W. Wentworth, the fee title to the last above described real estate was in Wallace W. Wentworth and Mary A. Wentworth, jointly, and that each owned an undivided one-half interest therein at all times since the date of said last above mentioned deed until the death of said Wallace W. Wentworth.”
The brief of appellants is an argument to this court to examine the evidence and reach a different conclusion as to the facts. It would needlessly encumber this opinion to set out all that evidence here. Suffice it to say, this court regards it as ample to sustain the above findings.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to quiet title. The trial court sustained a demurrer to defendant’s cross petition and rendered judgment for plaintiffs. Defendant has appealed.
Plaintiffs, in their petition, allege that they own and are in the possession of 2,000 acres of described land in Stevens county and that the plaintiff Pettijohn owns and is in possession of an additional 1,200 acres, which is described; that in April, 1930, they leased the same to the Skelly Oil Company for a production of gas and oil; that defendant, for the purpose of clouding plaintiffs’ title to the real estate, filed and recorded a certain affidavit with the register of deeds of Stevens county; that the affidavit was false and has had the effect of disturbing plaintiffs in the quiet, peaceable possession of their premises and in closing their transaction with reference to the production of oil on the premises, and has cast a cloud upon plaintiffs’ title, which they are entitled to have removed by the judgment of the court.
Defendant answered with a general denial, and by cross petition alleged that prior to March 26,1930, he had negotiated for the purchase from plaintiffs of an oil and gas lease on the property in ques tion, as shown by letters and telegrams, copies of which were attached to his cross petition. The first of these was a letter from defendant to the plaintiff Pettijohn under date of February 15, 1930, in which defendant advised that he had taken a block of leases in Stevens county and was working to secure development; that in checking the map of the county he found the lands in question to be in the name of plaintiffs, and that he would be interested in leasing this land on a “Producer’s 88 A” lease for a period of ten years at $1 per acre bonus and $1 per acre annual rental, and inquired if the plaintiffs would be interested. On February 20 defendant again wrote Pettijohn, inclosing a form of the lease, which called for $1 per acre rental beginning a year after the date of the lease, and stated if plaintiffs would care to name a bonus they would take for a lease for ten years he would, try to negotiate a trade. Replying to that letter, March 3, Mr. Pettijohn wrote that he had received letters from other parties in Kansas concerning leases and invited defendant to send the best bonus he would offer in addition to the rental for the lease. On March 7 Mr. Pettijohn wired defendant that it was his intention to be in Dodge City the next week, when he would continue negotiations relative to leasing his Stevens county land for oil. From the allegations it would appear that defendant met plaintiffs at Dodge City and discussed the matter with them. At that time it seems defendant was endeavoring to negotiate the leases from plaintiffs to the Prairie Oil and Gas Company. The next of the correspondence shown is a telegram from Mr. Pettijohn to defendant on March 18, which stated that he would wire the next day if he could hear from Beeson, and that he would want leases made “to good company and yourself.” On the same date defendant wired Mr. Pettijohn that the Prairie had refused to close deal, that he was much disappointed, that he could dispose of leases to responsible major companies and retain some acreage for himself. “Wire immediately if satisfactory to sell to other companies.” On March 19 Mr. Pettijohn wired defendant: “Beeson will not lease as per your telegram yesterday. Will wait awhile.” On the same day defendant wrote Mr. Pettijohn, explaining in some detail the refusal of the Prairie Oil and Gas Company to take the leases and the reasons therefor, of other companies he had taken the matter up with, and the possibility some one of them might take the acreage, or part of it, and asked that the matter be given further consideration, and that he be advised if plaintiffs cared to deal as outlined. The answer further alleged that on March 26 defendant sent a tele gram to plaintiff Pettijohn: “Have responsible operator that will take all of thirty-two hundred acres at price we previously agreed upon. Answer.” Mr. Pettijohn replied, March 27: “You may write up leases as per verbal agreement. Because of partnership in some of these titles want to know operator or company is responsible.”
The cross petition alleged that by the verbal agreement referred to in the telegram last mentioned it had been understood and agreed between the parties that Pettijohn would furnish the defendant, for examination, certificates of title prepared by a bonded abstracter of Stevens county; that defendant should prepare the leases and send them to plaintiffs, who would execute them and send them, with a draft on defendant for $4,000, to a named bank at Wichita, and that defendant, upon examination of the certificates of title, would pay the draft, and that, as some of the lands were mortgaged, defendant would obtain, at plaintiffs’ expense, certificates from the holders of the mortgages as to whether they were in good standing. It is further alleged that on March 28 defendant sent Mr. Pettijohn a telegram that he would write up and forward leases “and satisfy you that purchaser is responsible,” and on the next day wrote plaintiffs a letter, inclosing the leases in triplicate, asked that they be executed, that a depository for rentals be designated, that they be forwarded to a named bank at Wichita with draft on him for $4,000, and to have the time for the payment of the draft sufficient “for me to have the certificates of title made, which will take a few days, and it will be necessary for me to get the certificates examined” and to learn the status of the mortgages. “I have taken these leases in my. name, and will make assignment to the company that takes over the block,” and advised that the company that had taken over the block was the Jo-Mac Oil and Gas Company. Some statement of that company and its activities was made. It was made clear that there was no assurance that a well would be drilled on the lands. On April 5 Mr. Pettijohn wrote defendant, advising that he and Mr. Beeson had not been in favor of leasing to an individual, but wanted the tract taken in a body to a responsible company which would at some time drill on the land, that he was not familiar with the company mentioned. With reference to time to examine certificates of title and status of mortgages the letter inquired: “Why not obtain these now” so that you will be “ready to make payment on receipt of leases?” On April 7 Mr. Pettijohn wired defendant: “Have concluded not to lease now, as Beeson will not sign leases as written. We will not divide acreage.” Plaintiffs’ letter of April 5 and this telegram reached defendant on the same day. After receiving them defendant wired plaintiffs:
“SigiToriginal lease only . . . Have certificates of title waiting for leases to close deal. Received your telegram. Must close deal. Have made sale to Jo-Mac. They demand delivery. . . . Cannot cancel deal. Answer.”
The cross petition alleged that by the terms of these telegrams and letters plaintiffs contracted to execute the leases to him for $1.25 per acre bonus; that the Jo-Mac Oil and Gas Company was- a responsible concern; that the leases were in fact of the value of $6.25 per acre; that plaintiffs had refused to carry out their contract to make the lease to defendant, to his damage in the sum of $16,000. The prayer was for the specific performance of the contract, and in the alternative for damages in the sum of $16,000.
The trial court sustained a demurrer to the cross petition. The question presented here is whether or not the allegations of this cross petition show that there was binding contract between plaintiffs and defendant which can be enforced by specific performance, or be the basis for a claim for damages. It is clear there was not such a binding contract. The minds of the parties never met on essential features of the contract. Obviously defendant was undertaking to act as a broker to negotiate the leases to some responsible oil company. He first undertook to make a deal to the Prairie Oil and Gas Company, and apparently represented to plaintiffs that such a deal would be made. That fell through, for reasons not the fault of plaintiffs. He then- thought that he might negotiate them to other companies, perhaps part of the land to one and part to another. He was advised plaintiffs would want them made to a responsible company and to defendant. He sent leases running to himself only, but advised that he planned to assign them to the Jo-Mac Company, which he represented to be a responsible concern. Plaintiffs knew nothing about that company. They never consented at any time to make leases to defendant alone. The proposition that the leases and draft would be forwarded to a named bank at Wichita, with an indefinite time for defendant’s research and investigation before payment of the draft, was not agreed to by plaintiffs. If the leases were actually worth $6.25 per acre bonus obviously he had not advised plaintiffs of that fact, which, if he was acting as their broker, he should have done. His efforts to get the leases in his own name and then assign them, obviously with a large profit to himself, did not accord with any agreement he had made with plaintiffs. Defendant’s attitude, as disclosed by his answer and cross petition, is that of a none too conscientious broker seeking to obtain unjustified rights in the real property of nonresidents. The facts alleged do not state a,cause of action in his behalf, nor justify him in filing of .record an affidavit which clouds plaintiffs’'title.
The judgment of the court below is correct, and it is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the administrator of the estate of Ernest D. Parr, deceased, to set aside a gift of money and property made by the decedent, shortly before his death, to Lillian M. Young. The court found generally and specially for defendant, and rendered judgment accordingly. Plaintiff appeals, and raises two questions: first, the gift was not completed by delivery, and second, the donor ought to have had independent advice.
In his lifetime Ernest Parr was engaged in the business of billboard advertising, and had an office in the city of Topeka. For several years previous to his death he suffered from poor health. He gradually grew worse and in May, 1930, he went to a hospital. After a period of observation and treatment, he was advised an operation was necessary. While getting into condition for the operation, he said he had but one chance in a thousand to get well, but he had suffered all he could, and was willing to take the chance. The operation was performed on June é. On June 5 he died.
Lillian M. Young, with her sister, conducted a beauty parlor in the city of Topeka. Of evenings and on Sundays and holidays and at some other times, she acted as bookkeeper for Ernest Parr, and performed other business services for him. Plaintiff’s attorneys say she was Ernest Parr’s private, confidential secretary, and general agent. The district court did not so find, and this court cannot determine the precise nature and extent of the relations, because the court does not know how much of the testimony for plaintiff the district court disbelieved. Confidential relations vary innumerably in scope and degree. Assuming Lillian Young did bear a confidential relation to decedent, and that the burden rested on her to establish the gift, she discharged the burden to the full satisfaction of the district court.
For several years previous to his death Ernest Parr and Lillian Young were engaged to be married. They were devoted to each other, made plans to be married when his health would permit, and they hoped to be married early in July, 1930.
In September, 1929, Ernest Parr took out two policies of life insurance, one for $3,000, and one for $1,000, which were payable to Lillian Young, fiancée. A few months before his death Ernest Parr arranged for change of a joint certificate of Cities Service stock to individual ownership, so that, as he stated, if anything happened to him, Miss Young would have no trouble about it.
The gifts, if consummated, consisted of two checks, one for $1,-022.25, on Ernest Parr’s personal account, and one for $2,000 on his business account in the Farmers National Bank of Topeka; a certificate for shares of the Capitol Building and Loan Association of Topeka to the amount of $2,000; and five certificates for seventeen shares of common and two shares of preferred stock of Cities Service Company. The Cities Service stock was valued, at the time of his death, at $600. The court made the following findings of fact:
“The court, after due consideration of the evidence in this case and being fully advised in the premises, finds for the defendant and against the plaintiff on all the issues in this case.
“The court further finds that Ernest D. Parr, at the time of the gifts of the property to the defendant, was in the full and perfect possession of all his mental faculties, and at the time he executed the two checks on the Farmers National Bank payable to the defendant Lillian M. Young, and at the time he executed the assignment of the shares of stock in the Capitol Building and Loan Association and the shares of stock in the Cities Service Company, which have been introduced in evidence in this case, the said Ernest Parr was in the full possession of all his mental faculties, and that said checks and shares of stock were duly delivered by the said Ernest Parr to the said Lillian M. Young, and that the said Lillian M!. Young thereupon became and was at the time of the death of said Ernest Parr the absolute owner of the money represented by the two checks on the Farmers National Bank, and was the absolute owner of the shares of stock in the Capitol Building and Loan Association, and the shares of stock in the Cities Service Company.
“The court further finds from the evidence in this case that the said Fred Parr, administrator of the estate of Ernest D. Parr, deceased, had no right, title or interest in or to . . . any of the said property at the time of the death of Ernest D. Parr, or at the time of the commencement of this suit, or at any other time.
“The court further finds that the said Ernest D. Parr was not unduly influenced at the time of the gifts of the checks and shares of stock as herein-before stated, but the giving of the same to the defendant herein by the said Ernest D. Pan- was his free and voluntary act.”
Ernest Parr was a patient at the Security Benefit Association hospital, located some distance west of the corporate limits of the city of Topeka. His recovery was doubtful. He was a'fairly successful business man. The court’s findings that he was in full possession of his mental faculties, was under no restraint, and acted freely and voluntarily, are not questioned. His disposition and desire, in case of death, to make financial provision for the woman to whom he had been long engaged, and whom he would soon marry if he recovered, has been indicated.
In the forenoon of May 31 Ernest Parr came into the city of Topeka, went to the Masonic Temple and there revoked a Masonic will which would have vested all his property in his estate, and consequently in his heirs at law. He said he had everything arranged the way he wanted it, and he did not care to leave a will.
After revoking his will, and in the forenoon of the same day, Ernest Parr went to the beauty parlor. When he appeared, Miss Young said, “Why, Ernest, what are you doing here?” He took some folded legal-size papers from his pocket, and said he came up town to cancel the will and to have the papers taken care of, so that if anything happened, she would be well taken care of. He said he wanted to see her, and wanted to straighten up everything, so that if anything happened to him, everything would be taken care of for her. Ernest Parr and Miss Young then stepped into a room where they were alone. Soon afterward he went away.
About noon of the same day Miss Young appeared at the Cities Service office in Topeka with the five share certificates in her possession, and she asked that they be transferred to her. She was told it would be necessary for Ernest Parr to execute the blank assignments on the backs of the certificates, and that his signature should be witnessed. She took the certificates away with her.
On the same day Miss Young appeared at the office of the Capitol Building and Loan Association, with the certificate of building and loan shares, and asked that the certificate be transferred to her. She was told by the assistant secretary of the association it was necessary for Ernest Parr to execute the assignment on the back of the certificate. The assistant secretary filled the blanks, and checked the place where Ernest Parr was to sign.
On June 3, Miss Young returned to the office of the building and loan association, and presented the certificate for transfer. The assignment then, bore the signature of Ernest Parr. The assighment was approved, the certificate was canceled, and a new certificate was issued to Lillian M. Young. When introduced in evidence, the indorsement on the back of the old certificate appeared as follows:
“For value received, I hereby sell, assign and transfer unto Lillian M. Young the shares represented by this certificate, and authorize the secretary to transfer such shares on the books of the association.
“Dated-, 1930. E. D. Parr, Shareholder.
“Approved June 3, 1930: Roy McCtte, Assistant Secretary.”
On June 3 the certificates of Cities Service shares were at the hospital on the bed in Ernest Parr’s room. Miss Young called Mary Melchior, general floor nurse of the hospital, into the room, and Ernest Parr asked Miss Melchior to witness his signature. He signed the papers, and she witnessed the signatures. The assignments were on the backs of the certificates, the written portions were in Ernest Parr’s handwriting, and as signed by him and witnessed by Miss Melchior, one of them, when offered in evidence, appeared as follows:
“For value received, I hereby sell, assign and transfer unto Lillian M. Young, five shares of the capital stock represented by the within certificate, and do hereby irrevocably constitute and appoint-attorney, to transfer the said stock on the books of the within-named company, with full power of substitution in the premises.
“Dated June 3, 1930. ' Ernest D. Parr.
“In presence of Mary Melchior.”
The assigned certificates were presented for transfer, and the transfer was made on June 13.
The checks were not dated, but were in the handwriting of Ernest Parr. Ernest Parr and Miss Young sometimes took meals at the Edward Johnson restaurant. Edward Johnson would inquire after Ernest Parr’s health, and after Ernest Parr went to the hospital, Edward Johnson talked to him. Ernest Parr said he guessed the only way was to have an operation. Two or three days before the operation was performed, Miss Young was in the restaurant. On that occasion she had the checks in her possession. On June 2 she appeared at the Farmers National Bank, had the checks in her possession, and cashed them. She had a conversation with the president of the bank, and on his advice the proceeds of the checks were deposited in two accounts, “Lillian Young, Trustee,” and “Lillian Young, Guardian.”
Witnesses were permitted to testify, over objection, that in connection with the transactions at the Cities Service office and at the building and loan association office, Lillian Young explained how she came to have the certificates; and that in connection with the transaction at the bank, she explained how she came to have the checks. The testimony was admitted with the understanding the court would rule later. • The court made the following finding:
“The court further finds that in the absence of the testimony of these witnesses, the defendant has proven by a preponderance of the evidence that the checks and certificates of stock were 'duly delivered to the defendant by the said Ernest D. Parr, and that said delivery was the free and voluntary act of the said Ernest D. Parr, and was free from any undue influence.”
There was testimony, properly admitted, which has not been referred to, which would materially aid in sustaining the findings of fact. One illuminating bit of testimony was that of Miss Young that she first saw the certificate of building and loan association shares at the beauty parlor. Such testimony may be left at one side; and without debating the evidence embraced in the stark narrative appearing above, and without discussing the very many authorities cited by.counsel for the respective parties, the court holds as follows: The evidence warrants an inference of fact that Ernest Parr delivered the checks and share certificates to Lillian M. Young; no other reasonable inference could be drawn; no rule of law forbids the inference; and the contention that the gift failed because it was not proved Ernest Parr had independent advice before making it, is without merit.
The judgment of the district court is affirmed.
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The opinion of the court was delivered by
Dawson, J.:
This was an action for damages against the city of Osawatomie for the death of Lloyd E. Zumbrun, who was electrocuted in the attic of a two-story building while engaged in changing the position of a drop light to serve the convenience of a doctor whose office was immediately below.
The principal facts were these: For some time prior to the summer of 1927 the city of Osawatomie owned and operated an electric light plant which served the town and its inhabitants. The system of wiring which supplied the current was “a single-phase, three-wire, 220-volt, secondary system.” In this sort of system there are three-fold sets of wires which radiate from a transformer, and each set furnishes current to a particular- group of buildings. In each of these threefold sets, two of the wires are charged with electricity— “hot wires” the workmen call them — and one wire which is neutral. To get a lighting current one of the hot wires is connected with the neutral. The function of the transformer is to reduce the higher voltage coming from the dynamos of the power plant to 110, which constitutes the usual strength of current used for lighting purposes. Some years ago this sort of system for distributing electric light and power was common, but in recent years it has been found that the neutral wire should be methodically grounded to guard against accidental contact with current of higher voltage. The city’s distributing system did not conform to this later and safer practice of grounding the neutral wire in each threefold set.
On July 2, 1927, one Doctor Pool, a tenant on the second floor of a certain business building in Osawatomie, telephoned to one Otis Pierce, who was engaged in the business of furnishing electric supplies and services, that he desired an extension electric light hung in front of his operating chair. Pierce sent his employee, Zumbrun, to attend to it. Zumbrun arrived and with the aid of a stepladder he climbed through a ceiling hatchway into the attic, where he made some effort to make the requisite connection. Then he descended into the hallway near the doctor’s office and-reported that he had fixed the desired connection and went away. Shortly afterwards Doctor Pool tried to turn on the light, but it would not work, so he telephoned that fact to Pierce. This telephone statement brought the response that a man would be sent over immediately to fix it. Soon Zumbrun reappeared, tried the electric bulb, which would not work. He then tried it in another socket, but it gave no light there. So he remounted the ladder and passed into the attic. Doctor Pool soon noticed that all sounds in the attic had ceased. He called a fellow tenant, Clarence Chambers, who climbed the ladder and looked into the attic and spoke to Zumbrun, but got no response. The Pierce shop was notified; Pierce appeared and climbed into the attic; he caught hold of Zumbrun’s hand and received an electric shock which partly stunned him. Pierce then descended the ladder and went to the switch block in the hallway and turned off the current. Some other men climbed into the attic, and found Zumbrun’s dead body lying on the rafters within two feet of the ceiling, with one wrist lying on an electric wire and one ankle on a gas pipe which apparently had made a connection for the electric current to pass with fatal results through Zumbrun’s perspiring body and sweaty clothing on that hot July day.
Plaintiff, as widow of Zumbrun, brought this action on her own behalf and that of her minor daughter against the defendant city.. Her petition charged that Zumbrun’s death was caused by the city’s negligent failure to ground the neutral wire to prevent the threefold set of wires from carrying an excess current into the building. Her petition alleged:
“That the service so maintained to supply electric current to said buildings is known as single-phase, three-wire, 220-volt construction, there being two service wires carrying current and a neutral wire. . . .
“Plaintiff alleges that in order to insure safety to property and life it is necessary according to approved methods of construction and in the proper construction of said electric - system, that the said neutral wire should be properly grounded. . . .
“Plaintiff further alleges that on July 2, 1927, and for a long time prior thereto, the said neutral wire above mentioned, was not grounded and that one of the service wires at that time carried more than 220 volts of electric current.
“Plaintiff further alleges that the defendant city was negligent in not having said neutral wire properly grounded and in maintaining and permitting its service wire to carry a high and dangerous voltage of electricity, and that the death of said Lloyd M. Zumbrun was directly caused by the said negligence of said city.”
Defendant’s answer, among other matters, pleaded a city ordinance, entitled: “An ordinance relating to the registration of electricians, regulating inside wiring and providing a penalty for the violation thereof.” This ordinance made it unlawful for any person to install or'alter any electrical wiring without a permit from the city, good for one year, which Zumbrun did not have. The ordinance excused employees of an electric supply and service shop from having such a permit if their employer had one; but Pierce, Zumbrun’s employer, did not have such a permit. The ordinance also provided that no alterations of inside wiring or the attaching of devices using electric current should be made without a permit from the superintendent of the light department, and such work had to be done under the direction of the superintendent. This provision of the ordinance was ignored by Zumbrun and his employer. Under the ordinance city employees and persons wiring their own buildings under the rules and regulations of the ordinance were not required to haye a permit. Misdemeanors for breach of the ordinance were defined and penalties prescribed.
Defendant’s answer also alleged that Zumbrun met his death while committing a breach of the city ordinance. Defendant also pleaded Zumbrun’s contributory negligence. Its answer on this point, in part, alleged—
“That the said Zumbrun was further negligent and careless in undertaking to do the acts mentioned in the plaintiff’s petition with reference to the electric wires therein described without first unscrewing the fuses and removing the same so as to shut off the electric current on the wires when he first entered the building before climbing to the attic at the point where he was to be engaged in the chores described in plaintiff’s petition, which he could have easily done and which it was his duty to do before undertaking any of the acts described in plaintiff’s petition with reference to the said electric wire and thereby he would have avoided every possibility of any injury from any voltage.”
Jury trial; long record; many witnesses pro and con testified. The jury returned a verdict for $4,000 in favor of plaintiff; judgment was rendered thereon, and the city appeals.
1. The first error urged relates to the overruling of defendant’s demurrer to plaintiff’s evidence. Defendant stresses the fact that Zumbrun was an electrician regularly engaged in the sort of work he was doing when he met his death. He had been employed by Pierce for over a year and was familiar with the city’s electrical system, and according to Pierce’s testimony Zumbrun had been explicitly instructed that the neutral wire was not grounded and the danger of accidental grounding had been explained to him. Many witnesses for defendant testified that any electrician could tell from a mere glance at the wiring system that the neutral was not grounded; and defendant makes the contention that the fact which was wanting to sustain the judgment when this case was here before (Zumbrun v. City of Osawatomie, 130 Kan. 719, 288 Pac. 584) was thoroughly established by the proof in the second trial now under review. In the former opinion it was said:
“It majr be conceded that the handling of electric wires while the current is on involves danger and that one so engaged should exercise such care as the danger of the surroundings would suggest to a man of ordinary prudence. As to the contention that Zumbrun should have known that there was no grounding of the wires at the transformer, the evidence does not show that he did know, and as the case was presented presumptions cannot be indulged against him. In the absence of evidence of knowledge he would be warranted in assuming that the plant was properly constructed.” (p. 724.)
The point is emphasized that in this trial Pierce, whose testimony showed that Zumbrun had been instructed that the neutral wire was not grounded, and had the danger of the system explained to him, was plaintiff’s witness. Another witness for plaintiff testified that Zumbrun had taken down some wiring and did some rewiring for'him and hooked up a power motor in the laundry of the witness. The significant part of his testimony reads:
“Q. Did you notice anything as to whether he (Zumbrun) took out the fuse or stopped the current on the work? A. He did.”
The testimony of other electricians, of whom there were several, was all to the effect that the proper thing for Zumbrun to have done was to have switched off the current or to have taken out the switch plugs before he climbed into the attic, and that he would thereby have been perfectly safe from any danger of electricity. It was also shown that the switch box was just a few steps along the hallway from where he climbed into the attic, and that it was the simple work of a moment to perform that operation. There was, however, considerable testimony that electricians often took the risk of working with electric wires without turning off the current, but they all knew the safe and proper way such work ought to be done.
It is on this state of the evidence that defendant makes the contention that Zumbrun’s contributory negligence was incontestibly established. A majority of this court holds otherwise — that the testimony of Pierce was not necessarily true, and even if its truth be conceded because Pierce was plaintiff’s witness, nevertheless it was a jury question whether Zumbrun was guilty of contributory negligence. Apparently before Zumbrun went into the attic the first time he turned off the switch, since that was the proper thing to do and he was not injured on that occasion. Perhaps he may have forgotten to do so the second time. But there is good authority for the view that temporary forgetfulness of a known danger does not necessarily constitute contributory negligence as a matter of law. In 45 C. J. 959 it is said:
“Expressions are found in many decisions to the effect that one who voluntarily exposes himself or his property to a known and appreciated danger is guilty of negligence; but while an important factor to be considered in all cases, it is generally held that the fact that one knew and appreciated, or in the exercise of ordinary care should have known and appreciated the danger, and voluntarily encountered it, does not necessarily show negligence.”
In 20 R. C. L. Ill it is said:
“When, however, the specific evidence submitted only goes to the extent of establishing knowledge of the defect, the question of his contributory negligence should not be withdrawn from the jury. Indeed, it can only be in rare cases, if ever, that the question becomes one of law. In other words, it is for the jury to determine whether knowledge of the physical characteristics of the offending instrumentality constituted a sufficient warning of peril to the plaintiff.”
2. It is next contended that there was a total failure of evidence to establish plaintiff’s allegation that a current of 220 volts of electricity passed through the body of Zumbrun. The severe shock which Pierce received when he climbed into the attic and took Zumbrun by the hand was some evidence of considerable voltage; and the test made by the witness Armour, foreman of electrical service in Fort Scott, showed that he “got a reading of 230 volts” on one of • the “hot wires,” in another building, and 220 volts and 110 volts in corresponding readings in the building where Zumbrun was killed. Objection is made to this testimony because these tests were made some days afterwards, but there was nothing to show that conditions had changed in the interim, and the error assigned on want of evidence to sustain this allegation of plaintiff’s petition cannot be sustained.
3. Fault is found with several of the court’s instructions to the jury. In one of these the court'said that “the particular act of negligence charged is that the city did not have the neutral wire grounded in connection with its distribution system.” This was merely a simplified statement of the pertinent allegation of the petition. The trial court’s definition of contributory negligence is also criticized, but we see nothing in it prejudicial to defendant. The fifth instruction read:
“A party which owns and operates an electric light plant and furnishes an electric current for light to his patrons is required to exercise such care as will prevent injury to its patrons and others. And a party thus engaged in the business of distributing such a dangerous element as electricity is bound not only to know the extent of the dangerous element it is distributing, but it is bound to use the highest degree of care which skill and foresight can obtain in order to avoid injury to all persons who may be lawfully in proximity to the equipment which supplies the electrical current, and also to those who are liable to come accidentally in contact with such equipment.”
Defendant makes two objections to this instruction. It declares it to be the law that the defendant owner of an electric power plant is required to exercise such care as will prevent injury to its patrons and others. Defendant contends that no statute or rule of court heretofore announced places so exacting a burden, upon the owner of a power plant; that to say that such care is required to be exercised as will prevent injury prescribes a standard impossible of attainment and would result in making the operator of a power plant an insurer. The second criticism of this instruction pertains to the requirement that a distributor of electric current “is bound to use the. highest degree of care which skill and foresight can attain to avoid injury to persons.” This latter part of the instruction was a correct statement of law under our own precedents. In Stone v. City of Pleasanton, 115 Kan. 378, 223 Pac. 312, the standard of care required of a city which operates an electric power plant was stated thus:
“A city owning and operating an electric lighting system within its limits is under obligation to use the highest degree of care, including insulated wires where necessary, in making the lighting system safe for all in the city.” (Syl. K8.)
In Snyder v. Light Co., 98 Kan. 157, 160, 157 Pac. 442, it was said:
“It is conceded that a party who conducts so powerful and destructive an agency through the streets of a thickly populated part of a city is bound to exercise a degree of care commensurate with the dangerous character.of the agency to protect those who may come in contact or even in close proximity with its wires. The highest care and utmost caution should be exercised for the safety of the public, including those engaged in business or play, and for the protection of thoughtless, curious and inexperienced children, as well as those who have reached maturity. [Citations.]”
The court holds that when the entire text of the fifth instruction is considered, the phraseology of the first part of it which would require “such care as will pervent injury,” although inaccurate, was not prejudicial, especially since counsel for defendant did not regard it as of sufficient gravity to make a timely request in the trial court to have it modified. (Lambert v. Rhea, 134 Kan. 10, 4 P. 2d 419.)
Error is also assigned on the trial court’s refusal to give certain instructions requested by defendant. In one of these the court was asked to instruct the jury that plaintiff claimed that her husband was killed by a current of 220 volts and that if the neutral wire had been properly grounded the other wires would carry only 110 volts, and that such voltage would not be dangerous to life. While there was testimony that 110 volts would be dangerous to a perspiring workman in the cramped position between the joists and rafters where Zumbrun lay while changing the connection for Doctor Pool’s drop light, there had been no issue on this point raised in defendant’s answer. The instructions which the trial court did give made it clear that before defendant would be liable for the death of Zumbrun it was necessary for plaintiff to show that it was negligence for the city to omit to ground the neutral wire and that such failure or omission caused the death of Zumbrun. We think this was sufficient.
Defendant next complains of the trial court’s refusal to instruct the jury relative to the effect of the breach of the city ordinance on the rights of Zumbrun and his personal representative. This point might be serious if it had been shown that the breach of the ordinance had anything to do with the death of Zumbrun, but no such showing was made, nor did the circumstances warrant such an in-
ference. It is not suggested that if Zumbrun had applied for a permit or if his employer had done so, the city would have investigated his competency to work on electric wires and services and might have denied him a permit for want of the requisite skill. It is familiar law that where there is no causal connection between the breach of a statute or city ordinance and the wrong or injury complained of, its violation does not bar a recovery. (Williams v. Electric Railroad Co., 102 Kan. 268, 271, 170 Pac. 397; Griffith v. Atchison, T. & S. F. Rly. Co., 132 Kan. 282, 286, 395 Pac. 687; 45 C. J. 902-905.)
Another error pressed on our attention relates to the instruction given by the court touching the measure of damages. It reads:
“The plaintiff herein, the widow of Lloyd Zumbrun, has no right of recovery herein that would not inure to her husband had he been only injured instead of killed. In other words, the plaintiff, as widow of the deceased, has no added rights of recovery of damages against the defendant city than the deceased, himself, would have had in event that he had survived the shock and had brought an action against the city in damages for an injury sustained thereby. And the plaintiff in this action is limited to all of the defenses that could or might have been urged against the deceased in an action for damages by him against the defendant herein for an injury caused to him by the circumstances and the means which in fact caused his death.
“And on the other hand, if the deceased had survived the shock and could have held the defendant city in damages for any injury received thereby through the fault of the defendant, then in that event, under our law, the widow of the deceased may recover against the defendant for damages for the death that was caused by the circumstances and means which caused the suggested injury.”
Defendant suggests an inaccuracy in this instruction, in that it permits the jury to infer that plaintiff had all the rights of recovery which Zumbrun himself would have had, such as damages for pain and suffering. Defendant insists that the widow and orphan’s rights of recovery were limited to compensatory damages only. But there was no evidence of any damages such as pain and suffering which would have been peculiar to Zumbrun and recoverable only by himself if he had lived. And it cannot be presumed that the jury made any allowance for damages neither proven nor even suggested; and, indeed, the modest verdict for $4,000 precludes the idea that any improper item of damages was included in the verdict. The court holds that any inaccuracy in this instruction was nonprejudicial.
The other errors assigned relate to the trial court’s failure to direct a verdict for defendant and to the overruling of the motion for a new trial. These have been considered, but as their importance is chiefly predicated on the errors already noted and ruled on they require no discussion.
The court holds that prejudicial error is nowhere shown in this record, and the judgment is therefore affirmed.
Dawson, J., dissents, being of the opinion that Zumbrun’s contributory negligence was conclusively established, and that judgment in favor of the city should be ordered. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order, first, of the probate court, and on appeal, of the district court, approving the final account of executors. From the record before us, including the findings made by the trial court, the facts may be stated briefly as follows: Mathias Schneider, a resident of Nemaha county and the father of the appellant here, died May 30, 1922. He left personal property of the value of $7,000, a farm of 320 acres, and a residence property in Seneca. At the time of his death he was a widower, his wife’s death having preceded his. He left five living children and nine grandchildren who were the children of his deceased daughter, Jennie Kolzer. He left a will providing that his executors should take possession of all the property of which he died possessed and directing that his executors should proceed to sell and dispose of all his property, both real and personal, as soon as in their judgment the interest of the estate would permit, giving to them full power and authority to sell and convey the property, at either public or private sale, and on such terms and conditions as to them seemed best. The will contained provisions for dividing household effects without regard to value, for taking certain advancements into consideration, and for a monument and the care of the cemetery — none of which are important here. He gave to the children of his deceased daughter, Jennie Kolzer, the. sum of $10,000 in money, to be equally divided among them. The will then provided that the balance of the proceeds of the estate should be divided equally among his five living children and a sixth interest to the children of his daughter Jennie, and if any of his other children be deceased at the time of distribution, then his or her share should go to the children of such deceased, and if no children, then to their legal heirs. A son, Peter A., and a daughter, Anna M., were appointed as executor and executrix.
Soon after the death of Mathias Schneider and the will was admitted to probate the executors sold the residence in Seneca and with the proceeds thereof, and of the personal property, paid all debts and costs of administration and paid the $10,000 to the children of Jennie Kolzer. Thereafter they sold 160 acres of the farm and distributed the proceeds as provided by the will. This left 160 acres of the farm unsold.
In August, 1926, one of the sons, Karl M. Schneider, the appellant here, and his wife, executed to a bank at Seneca their note for $8,600, renewing an indebtedness then due the bank, and to secure the same gave to the bank a mortgage on an undivided one-sixth interest in the 160 acres last above mentioned and another 120 acres oWned by them. The debt secured by this mortgage became due and was unpaid, and in October, 1928, the bank brought an action on the note and to foreclose the mortgage. In that action Karl M. Schneider and his wife filed an answer admitting the execution of the note and mortgage, and alleged, among other things, “that defendant Karl M. Schneider is the owner of the fee-simple title in and to the real estate described,” and asked the court to provide in its decree that the real estate should be sold in separate tracts, “and that defendant Karl M. Schneider should be adjudged and decreed the right to redeem the whole or either separate tract thereof within eighteen months from the date of the sale thereof, as provided by law.” In December, 1928, in that action the bank recovered a judgment against Karl M. Schneider and wife for $6,034.30, being the balance due on the $8,600 note, and that the same was a first lien upon the undivided one-sixth interest of Karl M. Schneider in the 160 acres of land above mentioned (also to be a lien on the 120 acres). The court adjudged the equity of redemption, as provided by law, to be in Karl M. Schneider and wife and fixed the period of redemption at eighteen months. In due time the property was sold under this judgment. The one-sixth interest of Karl M. Schneider in the 160 acres in question was bid in by the bank for $3,000. The sale was confirmed by the court, and after the payment of costs and taxes a credit of $2,790.48 was made on the judgment in favor of the bank, and' a certificate of purchase for the undivided one-sixth interest of Karl M. Schneider in the 160 acres in question was executed to the bank. Karl M. Schneider never redeemed from that sale. He did pay the balance of the judgment rendered against him in that action, and in doing so knowingly took credit on such judgment for the proceeds of the sale previously mentioned.
In March, 1930, the executors under the will of Mathias Schneider sold the 160 acres in controversy. It is agreed in this proceeding that the share of the net proceeds of this sale which Karl M. Schneider Would have been entitled to under the will, had he not mortgaged his interest in the land and the mortgage been foreclosed, would have been $2,827.26. To satisfy the purchaser, and under the advice of counsel, the executors paid this sum to the bank and took an assignment of the certificate of purchase which it held. In making their final accounting to the probate court they asked credit for this payment, reporting the facts. Karl M. Schneider objected to that disposition of the money and demanded of the executors the payment to him of the sum of the $2,827.26 above mentioned. As previously stated, both the probate court and the district court, on appeal, denied his claim and approved the final settlement.
In this court appellant relies upon the doctrine of equitable conversion. He points out that while the testator by his will did not, in specific terms, vest title in his executors, he did give them possession of his real property and specifically authorized and directed them to sell it and to distribute the proceeds. From this it is argued that by the terms of the will the real property of which the testator died seized was converted into personalty for distribution.
The theory of equitable conversion is a fiction invented by courts of equity to promote justice in carrying out the purposes of the testator, and it should be applied with that purpose in view. (Bank v. Murray, 86 Kan. 766, 768, 121 Pac. 1117.) Equitable conversion has been defined to be that change in the nature of property by which, for certain purposes, real estate is considered as personal, and personal estate as real, and transmissible and descendable as such. It is an application of the axiom that equity regards that as done which ought to be done. (Haward et al. v. Peavey, 128 Ill. 430, 21 N. E. 503.) In Yerkes v. Yerkes, 200 Pa. St. 419, 50 Atl. 186, it Was said:
“The doctrine of equitable conversion is based on the rule that what is to be, or ought to be done shall be treated as if done already. It is a fiction therefore invented to sustain and carry out the intention of the testator or settlor, never to defeat it. Its application requires constant watchfulness to guard against the tendency to become a formal rule de jure, without regard to its real purpose and necessity. It should never be overlooked that there is no real conversion, the property remains all the time in fact realty or personalty as it was, but for the purpose of the will, so far as it may be necessary and only so far, it is treated in contemplation of law as if it had been converted." (Syl. fl.)
We find it unnecessary to go into an exhaustive study of the doctrine of equitable conversion, or to examine critically the cases in which the courts have applied or have failed to apply it. Those interested will find the subject treated in 13 C. J. 852 et seq. and 6 R. C. L. 1065 et seq. Many of the cases are collected under the title “Equitable Conversion” in Words and Phrases, first, second and third series. Some of our own cases dealing with the question are: Weir v. Bagby, 72 Kan. 67, 82 Pac. 585; Bank v. Murray, supra; Ward v. Benner, 89 Kan. 369, 131 Pac. 609; Smith v. Hensen, 89 Kan. 792, 132 Pac. 997; Bank v. Haid, 97 Kan. 297, 155 Pac. 57; Hart-Parr Co. v. Chambers, 116 Kan. 136, 225 Pac. 1076; Jones v. McMillan, 124 Kan. 599, 261 Pac. 596.
The gist of the doctrine, so far as necessary here to be considered, is as above stated. As pointed out in the Yerkes case, it is not a rule of right, hence it is not one which can be invoked under all circumstances. It is designed to promote equity, hence it should not be used as a basis to accomplish inequitable results. For the purposes of this case it may be conceded that the will in question forms a basis where, under some circumstances, the doctrine might have been properly applied, but the facts of this case do not present such a situation. It is clear from the will in question that the testator desired certain things to be done in a way different from the law of descent and distribution. The division of household goods without regard to value, the taking into consideration in the distribution of the estate of certain advancements, the provision for erecting a monument and for the care of the cemetery, and the bequest of $10,000 to the children of his deceased daughter, were matters which he first provided for. The remainder of his estate, under the terms of his will, was to be distributed substantially in accordance with the law of descent and distribution. Had it not been for what we might speak of as preliminary matters or specific things he desired to be done, there was no purpose in his making a will, for the remainder of the property, in either event, went to his heirs at law. These specific things had been done before the appellant executed his mortgage to the bank. In fact, one of the quarter sections of the land had been sol'd and the proceeds divided. There was no longer any use for applying the fiction of equitable conversion. In the situation appellant then found himself he was the owner of an undivided one-sixth interest in the remaining quarter section of land. That interest was subject to barter and sale. (See Knutson v. Hederstedt, 125 Kan. 312, 264 Pac. 41, and authorities there cited.) In such a situation he was at liberty to elect whether he would take his interest in the land, or his interest in the proceeds. Such an election is sometimes referred to as a reconversion (13 C. J. 885; 6 R. C. L. 1090). That appellant did elect to consider his interest in the form of land is clear from the fact that he mortgaged it, representing to be the owner of an undivided one-sixth; when suit was brought to foreclose the mortgage he filed an answer in which he specifically asserted his title in fee to an undivided one-sixth of the land, asked the court to recognize his title, and to adjudge him to have the rights of redemption provided by law, which the court did; and received the benefit of his interest in the land by a credit for the value thereof upon his indebtedness to the bank. In this way he actually sold and was paid for his interest in the land.
The trial court held that the mortgage to the bank was a valid, legal mortgage on appellant’s interest in the property. Complaint is made of that holding. We approve it. At the time he made the mortgage there was no occasion for applying the doctrine of equitable conversion. He elected at that time to claim an interest in the property as distinct from an interest in the proceeds of the sale of it by the executors. He was at liberty to do this if his doing so did not affect adversely other parties who had an interest in the property. (13 C. J. 886.) On no principle of equity is it to his disadvantage to hold him to that election.
The trial court further held that the appellant by having represented in his mortgage to the bank that he was the owner of a definite interest in the property, having claimed in his answer in the foreclosure ease to be the owner in fee of the definite interest, and having sought and obtained from the court a ruling based upon that claim, and having actually got the benefit of his claimed interest in the property in the payment of his indebtedness to the bank, he is now estopped from asserting he had no mortgageable interest in the property. We concur in that holding. The bank, in taking the mortgage, and the court, in entering its judgment, relied upon appellant’s representation that he was the owner in fee of an undivided one-sixth of the real property. The will and the administration of the estate up to that time made such a claim tenable, if he desired to make it. He received pay for his claimed interest in the prop erty. He is not entitled to pay for it a second time. As tending to support the holding of estoppel see Gray v. Crockett, 35 Kan. 66, syl. ¶ 5, 10 Pac. 452, and Westerman v. Corder, 86 Kan. 239, 119 Pac. 868.
The judgment of the court below is affirmed. | [
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|
The opinion of the court was delivered by
Jackson, J.:
This is an appeal by the claimant in a workmens compensation case from an adverse decision of the district court which set aside an award made by the workmen’s compensation commissioner.
In making his decision, the learned judge of the district court followed his commendable, usual practice of preparing a memorandum opinion. The facts of this case are not in dispute and are carefully set out in the opinion of the trial judge. Therefore, we are including almost the whole of the opinion herein:
“Memorandum Opinion of Judge
“This case is an appeal from an award made by the Workmen’s Compensation Commissioner. Counsel appeared by agreement on January 29, 1959, presented their respective contentions and submitted the matter for decision. The case has since been under advisement.
“Under the applicable statute (G. S. 1957, 44-556) an appeal was taken in this case by the employer and its insurance carrier. In this Court the appeal is to be determined upon questions of law and fact as presented and shown by a transcript of the evidence and proceedings as presented, had and introduced before the commissioner. From such record the following findings are made:
“1. Claimant received an accidental injury to his right shoulder as a result of a fall from a 12 foot scaffold while in the employ of the respondent as a journeyman electrician and while working on a job in the Allen Field House on Wednesday, December 1, 1954. His average weekly wage at the time of such injury was $120. Claimant rested briefly after his fall and continued to work the remainder of that day and week and all of the following week before seeing a doctor.
“2. For several days following his injury claimant experienced difficulty in sleeping because of pain in his right shoulder and the pain bothered him while at work. On December 11, 1954 he went to Dr. E. A. McClintock with his complaints and from that date was under said Doctor’s care until May 26, 1956, on which date he was released, not as cured, but as having received the maximum benefits from the treatments which had or could at that time be given.
“3. While under Dr. McClintock’s care, claimant received 28 diathermy treatments and seven injections and purchased and took the drugs prescribed. He also did exercises in his basement designed to aid him in raising his right arm. When claimant was released, claimant did not inquire nor did his Doctor tell him whether claimant did or did not have a permanent disability, but claimant believed from what the Doctor had said, that in time and with exercise his condition would continue to improve.
“4. On January 6, 1955, claimant was laid off by respondent because he could not do overhead work and he next found employment sometime in March, 1955. During said interval while he was not working, claimant made no claim for unemployment benefits.
“5. On January 10, 1955 claimant filed his claim for compensation with respondent.
“6. From March 1955 up to the time of the hearing before the Commissioner on November 14, 1958, claimant had employment in his trade as a journeyman electrician. However, during the interval between March 1955 and about January, 1958, claimant was doing the kind of work which for the most part did not require him to reach overhead.
“7. At the time claimant finished treatments and was released from the care of Dr. McClintock, his arm was not bothering him at night but during the day it was sore. From this time until about January 1958 the arm was better and did not bother claimant very much but it was still sore. In January 1958 claimant began work which required him to have his arms over his head most of the time and by February 8, 1958, he was beginning to have the sort of shoulder pains at night which had occurred in the days shortly following the accidental injury.
“8. On February 8, 1958, claimant went to Dr. McClintock again and found that he had a permanent injury but that the Doctor could do nothing for it. That the disability consisted in limited motion of the right arm above the shoulder level and the Doctor estimated the extent of such disability at 15%.
“9. On March 20, 1958, claimant filed his request for a hearing before the Commissioner, notice of which was served on the respondent about a week later.
“10. Claimant was later examined by Dr. Orville R. Clark for the respondent and on August 23, 1958, Dr. Clark made his report which largely confirmed Dr. McClintock’s findings. Dr. Clark estimated the extent of disability at 15 to 20%. Both Doctors found the disability to have been the result of the accident which occurred December 1, 1954.
“11. Between December 1, 1954, and November 14, 1958, claimant received no other injury to his person.
“12. Respondent and the Insurer had paid medical expense of $118 to Dr. McClintock and $40.90 to Blaylock Drug Store prior to the November 14, 1958, hearing before the Commissioner. The only medical expense incurred by claimant, not included in the above items, is the sum of $3.00 due Dr. McClintock for the office call of February 8, 1958. No other compensation has been paid by respondent or the insurer.
“13. Claimant was under no disability, mental or physical, which pre vented him from having his claim set for hearing before the Commissioner within three years from December 1, 1954, the date of his accidental injury. However, on and immediately prior to December 1, 1957, claimant’s arm was not bothering him particularly, he was sleeping well and he did not then know he had any permanent disability.
“Conclusions
“1. The period within which a claimant must have his claim set for hearing before the Commissioner begins to run against such claimant from the date of his accidental injury. (G. S. 1949, 44-535)
“2. Although the statute is silent as to the time limit within which a claim must be set for hearing, the Supreme Court of this State has held that under ordinary circumstances three years from the date of an accidental injury is ‘more than reasonable for such purpose where quick, easy and inexpensive service is expected and designed.’ (Cruse v. Chicago, R. I. & P. Rly. Co., 138 K. 117; also 4 K. L. R. 329.
“3. The findings made in the case now being considered do not in my judgment warrant the conclusion that the circumstances surrounding claimant’s injury were of such an extraordinary character as to warrant an extension of the time, within which he was privileged to have his claim set for hearing before the Commissioner, beyond the above mentioned reasonable time of three years from the date of injury.
“4. The fact that claimant did not discover that he had a permanent disability prior to the expiration of the above mentioned three year period, would not toll the running of such period under the circumstances disclosed by the record in this case as shown by the findings. hereinabove made. (Though not directly in point, see: Rutledge v. Sandlin, 181 K. 369; Johnson v. Skelly Oil Co., 180 K. 275; and 6 K. L. R. 490)
“Before concluding these findings and conclusions, two comments and supplemental findings in connection therewith, should be made; (1) Claimant’s counsel sought, before the Commissioner and through the claimant as a witness, to show that had claimant asked that his claim be set for hearing on" or just prior to December 1, 1957, claimant would have received nothing because he did not then have a permanent disability. For this reason such counsel contended that claimant should be given a few months leeway beyond the recognized three year limit. Needless to say, if the injury in question caused the permanent partial disability discovered in February of 1958, such disability would, on proper medical examination, have been discovered on or prior to December 1, 1957. (2) Although claimant suffered insufficient discomfort after May 26, 1955, to prompt him to go to his Doctor, still he did have a ‘sore’ arm most, if not all, of the time before he began the overhead work which sent him to the Doctor in February, 1958. Claimant had filed, his claim on January 10, 1955, and had been interviewed at or after this time by personnel in the Commissioner’s Office. Claimant knew the respondent was under the Workmen’s Compensation Act and had been asked by respondent’s counsel to discuss his claim. Claimant also knew or assumed that respondent had paid claimant’s medical expense.
“In view of the above findings and conclusions and the .comment thereon, the award of the Commissioner must be set aside and the claim for compensa tion, other than the medical expense heretofore paid, is denied. Commissioner’s fees and expenses were assessed by the Commissioner against the respondent and insurer and this is affirmed, if such be required. The costs of the appeal are assessed against the claimant.
“Signed and dated at Lawrence, Kansas, on February 28, 1959.”
From the above opinion it will be seen that the district court based its denial of the award upon the rule announced in the case of Cruse v. Chicago R. I. & P. Rly. Co., 138 Kan. 117, 23 P. 2d 471, setting up as a normal test a three year limitations requirement for the hearing of a written claim for compensation after it has been filed under the statute. The court recognizes that the three year period was not a hard and fast rule as it has been “engrafted” upon the statute in the opinion of the Cruse case (See second paragraph of conclusion 4, above). It would appear also that the court’s attention was not directed by counsel to the sequel to the above opinion appearing in Cruse v. Chicago R. I. & P. Rly. Co., 140 Kan. 704, 38 P. 2d 672. This opinion deals with an appeal by the claimant after a new hearing before the workmen’s compensation commissioner. On the new appeal it appeared that claimant in that case had not in fact filed a claim for compensation on June 13, 1929, as erroneously stated in the former opinion. The last appeal from the decision denying compensation was based upon a failure of claimant to comply with the provision of the act now appearing as G. S. 1957 Supp. 44-520a. The decision of the district court was affirmed on that basis. The court did not reverse the “three year” rule announced in its former opinion, but referring to its former opinion said:
“With respect to that the court held the proceedings before the compensation commissioner should be commenced within a reasonable time, and expressed the view that ordinarily three years from the date of the accident would be a reasonable time, but this might be varied by the facts of a particular case. The judgment of the trial court was reversed, leaving ‘the matter just where it was before the commission acted upon the motion to dismiss’.”
We would point out the differences in the case now before the court from the facts in the Cruse case. The written claim for compensation was timely filed, finding No. 5 above, and compensation was paid when the medical bills were paid by the employer, finding No. 12 above (Wolgamott v. Vinegar Hill Zinc Co., 151 Kan. 374, 99 P. 2d 755). In the first Cruse opinion referred to above, it was assumed that a claim had been filed, but certainly no compensation had been paid.
It will be noted that in this case, the date of the payment of the compensation must have been less than three years before the time appellant asked to have the case set down for hearing. In finding No. 2 it is shown that appellant was treated by Dr. McClintock as late as May 26,1955, and on March 20, 1958, he filed his request for hearing before the commissioner of his claim filed January 10, 1955. We direct attention to the fact that payment of compensation has always suspended the running of the statutory time for filing written claim for compensation under the various forms of the statute now appearing as G. S. 1957 Supp. 44-520a.
It may be noted further that in fixing its rule of “laches” at the period of three years in the opinion of the Cruse case, the court relied upon “the old law” prior to the re-enactment of the workmen’s compensation act in 1927, and the limitation as to the death of a workman found in the older version of the present section 44-520a. The provision for a three year limitation has now been changed to five years, but does not apply to the case at bar.
We do not fully understand the reasoning of the trial judge in the second paragraph of conclusion of law No. 4, supra. The court found Clark had suffered a permanent partial disability from the accident involved in this case, finding No. 10, supra. On the whole record, it would certainly appear that Mr. Clark was not a malingerer.
However, it must be remembered that the employer could call up the claim for hearing just as a defendant in the district court may insist that a case pending against him be heard (Rule 51-3-5 of the workmen’s compensation commissioner filed in oflBce of the revisor of statutes).
In the Cruse case the application of the three year limitation rule was assigned first to the discretion of the commissioner. The commissioner in our case made an award in claimant’s favor but we do not here hold that the district court might not review that matter on appeal. The court is of the opinion that the three year limitation of the Cruse case — which is not found in the statute— should not be invoked where a timely written claim for compensation has been filed and compensation has been paid within three years of the time when claimant requests a hearing on his claim.
The judgment of the district court is reversed and' remanded to the district court for further proceedings consistent with the views expressed in this opinion. It is so ordered.
Price, J., dissents. | [
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The opinion of the court was delivered by
Robb, J.:
Appellants, respondents, appeal from an award in favor of appellee, claimant, and the computation thereof, by the trial court in an action under the workmen’s compensation act.
Claimant filed a cross-appeal that has since been abandoned and the merits thereof need not be herein discussed. ,
The record discloses an abundance of substantial evidence adduced on behalf of both respondents and claimant. However, a brief statement of the facts will be sufficient for the purposes of determining this appeal.
Claimant was regularly employed by the Crown Drug Company in Pittsburg where, at the time of the accident, she was manager of the soda fountain; her salary was $205.00 a month, together with her lunch, and if she worked overtime, her evening meal was included; on December 14, 1956, while in the course of her employment, as claimant came through a swinging kitchen door, her left heel or ankle was caught by the door causing her to strike her left hip on one or more booths and fall into another. She received a back injury and serious injuries to her left leg.
Claim for compensation and future medical treatment was timely and properly presented and after a hearing the compensation commissioner granted claimant a temporary total loss of the use of her left leg from December 17, 1956, to December 23, 1956, and from January 16, 1957, to June 10, 1957, and a 25% permanent partial loss of the use thereof pursuant to G. S. 1955 Supp. 44-510 (3) (c) (16) and (21). There was no allowance for future medical treatment.
Claimant timely and properly appealed to the district court of Crawford county from the award of the commissioner, which appeal was presented on October 9, 1958, and taken under advisement by the trial court.
On December 4, 1958, the attorneys received á postal card reading as follows:
“DISTRICT COURT OF CRAWFORD COUNTY, KANSAS
“Alice Dunlap Plaintiff
vs. Case No. 20253
“Crown Drug' Co. et al Defendant
“On this 4 day of Dee. 1958 the Judge of said Court has made the following
Orders, viz.:
on this case argued Oct. 9, 1958. Award is affirmed except claimant is awarded 50% for permanent partial loss of left leg.
“L. M. Resler , District Judge”
The minutes of the judge’s trial docket were entered as follows:
“Date of Trial, October 9, 1958.
“Argued and taken under advisement. December the 4th, 1958, Award affirmed except claimant is awarded 50% for permanent partial loss of leg, as per journal entry.” (Their emphasis.)
Subsequent to receipt of the postal card attorneys for both parties conferred ex parte with the judge and as a result of those conferences each drew a journal entry reflecting what it thought the judgment of the trial court was but neither would approve the journal entry of the other.
Respondents later attacked some of the findings of the trial court in its journal entry of judgment. The controversial findings are:
“9. That as a direct result of said accident and injuries suffered by the claimant on the 14th day of December, 1956, the claimant suffered a temporary total disability from December 14th to and including December 26, 1956, and from January 15th and including June 10, 1957, a total for both periods of 22/57 weeks and thereafter the claimant 'has suffered and will continue to suffer a fifty percent (50%) partial permanent loss of use of the left leg.
“10. That by reason thereof the claimant is entitled to compensation payable at the rate of $32.00 per week for a period of 21/57 weeks for the total disability and that the claimant has been paid in full for the temporary total disability in the total sum of $717.71 for over twenty-two (22) weeks from December 17th to and including December 26, 1956, and January 15th to and including June 10, 1957.
“11. That the claimant is entitled to 100 weeks compensation by reason of fifty percent (50%) partial loss of use of the left leg, payable at the rate of $32.00 per week from June 10, 1957, and in the total aggregate amount of $3200.00, of which $2486.85 is now due and should be paid in a lump sum, and the balance to be paid at the rate of $32.00 per week. ' .:
“12. That this is an extreme case and claimant will be required to have medical treatment for said injuries by physicians and in a sum not to exceed $2500.00 less the medical expenses already paid by respondent.”
The judgment reads:
“It Is Therefore by the Court Considered, Ordered, Adjudged and Decreed: That Alice Dunlap be and she hereby is awarded judgmént against the respondent, Crown Drug Company, and its insurance carrier, United States Fife Insurance Company, for compensation for total temporary disability from December 17, 1956, to December 26, 1956, and from January 16, 1957, to June 10, 1957, at the rate of $32.00 per week, in the sum of $717.71, heretofore paid, and compensation for a period of 100 weeks at the rate of $32.00 per week beginning June 10, 1957, for a 50% partial permanent loss of the use' of the left leg, or a total of $3200.00 of which $2486.85 is due and should be paid in a lump sum, the balance to be paid at the rate of $32.00 per week until fully paid.
“It is further by the court considered, ordered, adjudged and decreed that Alice Dunlap, claimant, be and she hereby is awarded medical treatment for future care for her injuries and is awarded the expenses for such treatment in a sum not to exceed $2500.00 less the medical expenses already paid by respondent.
“Further award is hereby made in favor of the claimant and plaintiff, Alice Dunlap, and against the respondent and defendant, Crown Drug Company, and its insurance carrier, United States Fire Insurance Company, for all costs assessed by the Commissioner of Workmen’s Compensation of the State-.of Kansas, State Office Building, Topeka, Kansas, in the sum of $35.00 payable to the Workmen’s Compensation Commissioner; the sum of $224.20, payable to Peter A. Kelly, Certified Shorthand Reporter, Girard, Kansas, and the costs in this court in the sum of $--”
A further hearing was had during which the trial court stated what its judgment was as determined by the form and contents óf the journal entry. This was approved by claimant’s attorney but approval was refused by attorneys for respondents. A concluding paragraph also signed by the trial court setting out this subsequent procedure was made a part of the journal entry of judgment. It reads:
“January 10, 1959. The attorneys having failed to agree on a journal entry, a hearing was had and the form and contents of same are determined by the court.” (Our emphasis.) i
Obviously the above statement was the actual judgment made by the trial court and is indicative of the fact that the trial court did not intend for the postal card ’or entry in the docket to be the judgment because they both state “loss of leg” and it is an admitted fact by everyone that claimant did not lose her leg but lost only the use thereof, as is correctly and clearly stated in the journal entry of judgment. In addition, the above-quoted docket entry by its own terms refers to the journal entry of judgment.
A judgment is the final determination of the rights of the parties in an action. (G. S. 1949, 60-3101.) All judgments must 'be entered on the journal of the court and shall specify clearly the relief granted in the action. (G. S. 1949, 60-3122.) The cleik shall make a complete record of every causé as it is finally determined whenever such record shall be ordered by the court a'nd the presiding judge of such court shall subscribe the same. (G. S. 1949,60-3123.)
Section 60-3124 relates to the items that make up the record in the trial court, and section 60-3125 states that if a record has not been regularly brought up and recorded, the trial court may direct a time within which that shall be done after which timé, if the record is correct, the presiding judge shall subscribe the same.
These statutes are clear and unambiguous and show that it is the trial judge who says what a judgment is. As to the time a judgment is effective, this court settled that question in Foster v. City of Augusta, 174 Kan. 324, 256 P. 2d 121, a damage action, where it was stated:
“The trial court is the one to say whether its preliminary findings are to be final. They and the conclusions, when complete, constitute the decision of the court, and the trial judge is the one to say when his decision is rendered.” (p. 327.)
In the Foster case the trial court had made findings of fact and conclusions of law on April 21, 1952, which, as a result of a hearing on posttrial motions, were changed slightly on May 14, 1952, when the trial court said, in substance, there was no judgment until May 14, 1952. The result of that phase of the Foster case was this court held that a motion for new trial filed by the city on May 14, 1952, was good and the complete case was brought to this court for purposes of appellate review.
We cannot agree with respondent’s theory that the trial court’s judgment entered on January 7, 1959, was a modification of its previous judgment and award because, as already stated, there had been no judgment or award made until January 7, 1959.
A question remains as to the computation of the amount of compensation set out in the above-quoted portions of the trial court’s journal entry of judgment. In G. S. 1955 Supp. 44-510 (3) (c) (16) and (21) and two of our decisions thereunder (Rhea v. Kansas City Power & Light Co., 176 Kan. 674, 272 P. 2d 741, which involved temporary total loss of use of a foot followed by permanent partial loss of use thereof as a scheduled injury, and McKinney v. Rodney Milling Co., 177 Kan. 401, 279 P. 2d 221, involving a foot injury which caused an amputation of the right leg four or five inches below the knee) the method is set out for computing our present scheduled injury according to the standards in the above statute and cases. Eriefly stated, under the trial court’s order claimant was given more than she was entitled to. The trial court did the same thing here that the trial court did in the McKinney case, (p. 404.) It allowed temporary total disability and also allowed permanent partial disability in total disregard of the statute.
No good purpose would be served by remanding this case to the trial court for correction because a simple computation readily shows that claimant is entitled to $32.00 per week for 100 weeks less $717.71 already paid or $2,482.29, which should be paid her in a lump sum.
The judgment of the trial court as modified in the preceding paragraph is therefore affirmed. So ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action for divorce, division of property and alimony. Plaintiff wife, appellee, was granted a divorce for the fault of defendant husband, appellant. The court set aside to plaintiff her personal effects, a few household goods and a 1951 automobile as her sole and separate property, and awarded to her the Miami county farm mutually acquired during the marriage as a division of property and in lieu of alimony. (G. S. 1949, 60-1511.) The court awarded defendant heavy farm machinery, farm implements and tools, and a 1947 pickup truck. Final judgment was entered December 1, 1958, and defendant served his notice of appeal from that order January 16, 1959, contending the trial court erred in granting the divorce and in its division of property.
Plaintiff filed a motion to dismiss the appeal from that part of the judgment granting the divorce on the ground that defendant had not filed a written notice of his intention to appeal therefrom as required by G. S. 1949, 60-1512. The statute provides that a party desiring to appeal from a judgment granting a divorce must within ten days after such judgment is rendered file a written notice in the office of the clerk of such court, stating that it is the intention of such party to appeal from such judgment; and unless such notice be filed no appeal shall be had or taken in such case. Under the mentioned statute, the filing of a notice of intention to appeal is a condition precedent to the right to appeal.
We recently settled this question in Lang v. Lang, 177 Kan. 650, 282 P. 2d 390, and stated that where a party desiring to appeal from a judgment granting a divorce fails within ten days to file such notice of his intention to appeal, as aforementioned, the appeal must be dismissed as to the divorce feature of the case, but the alimony and division of property feature of the case does not require such notice and it may be retained, reviewed and determined on appeal.
In the instant case, since defendant failed to comply with the provisions of the above-mentioned statute, his appeal as to the divorce feature is dismissed. The sole question before this court is whether the trial court abused its discretion in its division of the property.
A brief summary of the record reveals that at the time of the marriage plaintiff owned a farm in Texas, a home in Olathe, and furniture, and had approximately $1,000 in a bank account; defendant owned a 1946 Chevrolet and had $200 to $300 in the bank. After their marriage the parties purchased a Miami county farm for the sum of $8,500, into which plaintiff put “a net of $3,786.79” realized from the sale of her Olathe home. She also made payments of several hundred dollars on farm machinery and contributed to their living expenses. Plaintiff was employed at the time of the marriage and continued working for some time. She estimated her earnings during that time as approximately $15,000. She and defendant worked together on the farm and both spent their own money on it. Plaintiff also, during the marriage, received several thousand dollars in income from her Texas farm. In May, 1957, the parties’ joint bank account contained $1,100.
No useful purpose would be gained in commenting on the evidence. Suffice it to say, it has been the inviolate rule of this court that a division of property made by a trial court in a divorce action will not be disturbed on appellate review unless it is made clearly to appear its action in making that division amounted to an abuse of discretion. (Goetz v. Goetz, 180 Kan. 569, 306 P. 2d 167; Meads v. Meads, 182 Kan. 361, 363, 320 P. 2d 830; King v. King, 183 Kan. 406, 409, 327 P. 2d 865; Garver n. Garver, 184 Kan. 145, 150, 334 P. 2d 408.)
In the instant case, the court awarded the Miami county farm to the plaintiff as “a division of property and in lieu of alimony.” Defendant contends the court erred in not setting out separately the amount of alimony and the division of property awarded so that each amount was ascertainable. It is true the right to alimony is separate and distinct from the right to a division of property. This matter was fully discussed and determined in Garver v. Garver, supra.
In the Garver case the trial court had an erroneous view as to what constituted alimony and a division of property under G. S. 1949, 60-1511 and, therefore, it was impossible to determine whether that court in fact granted alimony to the wife or whether it awarded a division of property alone or a division of property and alimony in the form of property.
That is not true in the instant case. The lower court definitely stated it awarded plaintiff the farm as a division of property and in lieu of alimony, and the case falls within the rule stated in Meads v. Meads, supra, p. 363, where we said, “. . . the trial court, as a division of property and in lieu of alimony, set apart to the plaintiff the Missouri farm and the Wichita home, . . . It is clear that the court allowed plaintiff alimony in the form of property.” We went on to criticize such procedure and stated the court should have set forth that part of the property allowed as alimony and that part allowed as a division of property. However, under the facts of the Meads case, the failure of the judgment to so reflect such a definite division did not compel a reversal. (See also Matlock v. Matlock, 182 Kan. 631, 323 P. 2d 646.) It is clear the court in the present case, while not in the best manner, did allow alimony and did make a division of property by setting aside to plaintiff the Miami county farm as a division of property and as an allowance of alimony.
An examination of the record reveals no abuse of discretion by the trial court and the judgment is affirmed.
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The opinion of the court was delivered by
Price, J.:
This is a common-law action for damages for personal injury based on alleged negligence of defendants.
The joint demurrer of defendants Hendershot and Singleton, and the separate demurrer of defendant Smith, to the amended petition (hereafter referred to as petition), were overruled. The appeal is from those rulings.
The basic question involved is whether the petition shows on its face that plaintiff’s recovery is confined to the provisions of the workmen’s compensation act.
Despite our reluctance to encumber an opinion with lengthy quotation of pleadings, it is felt that in order fully to present the various questions and to show the basis of our decision it will be necessary to do so in this case. Material portions of the petition are therefore set out in full:
"Plaintiff, Rex Shuck, for his amended petition against the above named defendants, and for the purpose of complying with and conforming to the mlings of the above captioned Court in striking certain portions of the original petition filed herein, states and alleges as follows:
“1. Plaintiff, whose present post office address is Burdett, Kansas, is a resident of Pawnee County, Kansas;
“2. Defendants, Dale Hendershot and Joseph Singleton, are general partners, and engaged in such capacity in doing business as general construction contractors;
“3. That the defendant, Dale Hendershot, is a resident of Pawnee County, Kansas, and his present post office address is Burdett, Kansas;
“4. That the defendant, Joseph Singleton, is a resident of Pawnee County, Kansas, and his present post office address is Burdett, Kansas;
“5. That the defendant, Donald Smith, is a resident of Pawnee County, Kansas, and his present post office address is Burdett, Kansas;
“6. On or about the 31st day of July, 1957, plaintiff was employed by the defendant, Donald Smith, as a common laborer, and as directed by such employer, plaintiff commenced to work at his employer’s farm situated south of Burdett, in Pawnee County, Kansas;
“7. At the date last above shown and at all other times mentioned herein, the defendant, Donald Smith, was regularly engaged in the business of farming and raising livestock, and devoted a substantial portion of his time and labor to no other business or trade;
“8. Defendant, Donald Smith, was not at any time mentioned within this petition, engaged in the business or trade of constructing or repairing buildings, and the construction of a single machinery shed on such farm, as hereinafter alleged, was merely incidental to Donald Smith’s regular business of farming and raising livestock.
“9. At the time plaintiff accepted such employment and commenced to work for such employer, the defendants, Hendershot and Singleton, were engaged by Donald Smith as independent construction contractors in constructing and erecting a roundtop farm storage and machinery shed owned by and on premises owned and operated by Donald Smith at such farm.
“10. Acts of Dale Hendershot, as hereinafter alleged, were those performed and committed as the active partner of the general partnership composed of Hendershot and Singleton;
“11. On or about July 31, 1957, plaintiff was instructed by his employer, Donald Smith, to devote his labor to the construction of such roundtop shed under the supervision of Dale Hendershot, and to perform such work as Hendershot should assign to plaintiff as a common laborer.
“12. On or about July 31, 1957, plaintiff commenced to provide his labor to the construction of such roundtop machinery shed and was assigned work to perform by the said Dale Hendershot;
“13. Hendershot and Singleton, such partnership, had employed and were employing several persons on the date last above shown, including Gary Hendershot, a minor son of Dale Hendershot and Maurice Daughenbaugh, who were engaged in such machinery shed construction work;
“14. The partnership, Hendershot and Singleton, through Dale Hendershot, one of such general partners, was in complete charge of and assumed and exercised exclusive control over such construction, having been retained by Donald Smith for that purpose;
“15. Plaintiff was paid by the defendant, Donald Smith, on an hourly wage basis of $1.25 per hour, and received no other compensation for his labor in the construction of such machinery shed;
“16. That sometime between July 31, 1957, and August 8, 1957, the defendant, Dale Hendershot, with the assistance of the common labor of Maurice Daughenbaugh, employee of such partnership, constructed a building scaffold on the premises where such machinery shed was being erected; that Dale Hendershot performed most of the work in its construction and erection and the attachment of such scaffold to the machinery shed, and in addition, exclusively: (a) selected all lumber therefore from a pile of used lumber salvaged from a frame building shed owned by Donald Smith which had been demolished by a tornado, and which materials had been furnished by the defendant, Donald Smith, for use in and in connection with the construction of such machinery shed; (b) planned and designed the construction of such scaffold; (c) supervised the work of its construction and every detail thereof; (d) selected and furnished all other materials therefor, and (3) furnished such scaffold in a finished state to plaintiff for plaintiff’s use in performing work assigned to him by the defendant, Dale Hendershot;
“17. On August 8, 1957, such scaffold while attached and fastened to the entire front or south end of such machinery shed, was mounted by plaintiff in the performance of work assigned to him by the defendant, Dale Hendershot, at Hendershot’s direction, and in the course of his employment by the defendant, Donald Smith; in the early afternoon of that day as last above shown, plaintiff and the defendant, Dale Hendershot, were standing on two secured planks constituting the platform of such scaffold just above the top of the entrance to such machinery shed and approximately fourteen (14) feet above the ground level; plaintiff was standing approximately five (5) or six (6) feet east of the defendant, Dale Hendershot; the defendant, Dale Hendershot had just dismounted from a saw-horse resting on top of the scaffolding platform where he had been engaged in nailing siding on the machinery shed; at that time and place, plaintiff looked below and to his left or west, and saw a ‘scab’ split lengthwise; such ‘scab’ consisted of a 2" x 6" or a 2," x 8" block of wood, approximately one foot in length, one of approximately four or. five ‘scabs’ used in lieu of upright supports, which had been nailed to the front siding of such machinery shed; plaintiff immediately called over to the defendant, Dale Hendershot, and stated, in substance: ' ‘We’d better get down and fix that scab’; at that instant the scaffold collapsed hurling plaintiff and the defendant, Dale Hendershot, towards each other, converging on the point where the ‘scab,’ as had split and become severed, had been formerly' in place, and both the plaintiff and the defendant, Dale Hendershot, fell to the ground, and that such fall inflicted injuries upon the plaintiff as are hereinr after described;
“18. Plaintiff did not construct such scaffold nor any part thereof, nor did he aid in its planning or design nor in the selection of its materials; neither did plaintiff have any prior experience in the construction of scaffolds;
“19. Plaintiff, as a common laborer, neither knew nor, within the extent of his knowledge and experience, should have known that such scaffold was defective and dangerous; nor were the defects of such scaffold and the materials used therein and the danger arising therefrom, within the knowledge, of plaintiff nor were such defects and dangerous conditions plainly observable;
“20. That the defendant, Donald Smith, plaintiff’s employer, had a non delegable duty of providing the plaintiff with a reasonably safe place to perform plaintiff’s work in connection with the construction of such machinery shed, and that such duty existed not only in respect to apparent risks but also in respect to any defects and dangers as were latent; . ■
“21. That the defendants, Hendershot and Singleton, had a duty owing to plaintiff of exercising a degree of care duly required by the nature of the work for which they had been engaged and which they controlled, directed, and supervised; that such duty consisted of providing a scaffolding as would sustain the weight placed thereon under their direction.
“22. Defendants and each of them failed to discharge and breached their duties respectively owing by them to plaintiff as alleged in paragraphs ‘20’ and ‘21’ above;
“23. Defendants, Hendershot and Singleton, were at all times as alleged herein in sole control and possession and maintained the entire and exclusive supervision and superintendence over the instrumentality, to-wit: such scaffold as collapsed, the selection of materials therefor and the design, planning and construction, erection, inspection and testing thereof and especially at the times of the commission of an' act or acts of negligence or omission or omissions amounting thereto;
“24. Injuries and damages suffered by plaintiff, as hereinafter alleged, would not have resulted except for some act or acts of negligence or omission or omissions amounting thereto, in the design, planning, construction, erection, testing, or inspection of such scaffold, or the materials selected therefor, and that such injuries and damages resulted directly from such act or acts or omission or omissions, either jointly or severally committed by the defendants herein;
“25. Plaintiff is without the knowledge of the proper techniques, principles of stresses and strains, methods or manner of planning, designing, constructing, testing and inspecting of scaffolds and the selection of materials therefore; plaintiff does not know and therefore does not attempt to allege or describe what specific acts of negligence as may have been the proximate cause of his injuries and damages;”
Paragraphs 26 and 27 relate to the injuries and damage suffered by plaintiff and are followed by the prayer for recovery against all defendants in the amount of $10,728.80.
Defendants Hendershot and Singleton filed a joint demurrer, and defendant Smith a separate demurrer, to the petition. They were identical — the fifth ground thereof being that the petition
“. . . shows on its face that any right of recovery that the plaintiff may have as a result of the alleged accidental injury is confined to recovery under the Workmen’s Compensation Law of the State of Kansas.”
Both demurrers were overruled and all three defendants have appealed.
We first take up and discuss the question presented as it relates to defendants Hendershot and Singleton.
Specifically, they contend that under the allegations of the petition (1) they were engaged in the building trade and therefore compulsorily under the compensation act; (2) they were the special employers of plaintiff, and (3) therefore plaintiff’s exclusive remedy as to them was to proceed under the compensation act.
G. S. 1957 Supp. 44-507 specifically provides that “building work” is under the compensation act, and G. S. 1949, 44-508, defines “building work” as being any work in the erection, construction, extension, decoration, alteration, repair or demolition of any building or structural appurtenances.
While the allegations of the petition leave no doubt of the fact, it nevertheless is unnecessary to refer to them on the first two mentioned contentions, for in his brief plaintiff concedes that (1) Hendershot and Singleton were engaged in a trade covered by the act; (2) at the time and place in question they were his special employers, and (3) in performing work incidental tO' his general agricultural employment he also was concurrently performing work constituting his special employers’ trade.
In view of the allegations of the petition, the mentioned sections of the statute, and concessions by plaintiff, it is difficult to follow his contention that as to Hendershot and Singleton the provisions of the compensation act did not provide his exclusive remedy.
Insofar as claimed liability on the part of Hendershot and Singleton is concerned, the case of Giltner v. Stephens, 163 Kan. 37, 180 P. 2d 288, relied on by plaintiff, is readily distinguishable from the case before us. In that case the defendant, the owner and operator of a large dairy and stock farm, hired the plaintiff as a carpenter to work on the construction of a dairy barn on the farm. While so engaged the plaintiff was injured and brought a damage action against defendant. Among other things, it was alleged that the operation of a derrick and gin pole (by which plaintiff was injured) was within the control of the defendant. The defendant, a farmer, was exempt from the provisions of the compensation act (G. S. 1935, 44-505 — see similar provision in G. S. 1957 Supp. 44-505), but the question of the applicability of the act was injected because of the fact the defendant farmer was engaged in “building” a barn on his farm. It was held that under the allegations of the petition it was clear that the regular trade or business of defendant was the operation of a dairy and stock farm, and that the construction of the barn was merely incidental to his ordinary and regular agricultural pursuits — therefore it could not be said that he was under the compensation act.
It is clear that insofar as defendants Hendershot and Singleton are concerned plaintiff has pleaded himself under the compensation act. It is conceded they were covered by the act and that he was their special employee. It is pleaded that plaintiff was under their exclusive control and supervision in the performance of the work, and it also is clear that it was their work, as independent contractors, that was being done. For analogies to be drawn reference is made to Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868; Bell v. Hall Lithographing Co., 154 Kan. 660, 666, 121 P. 2d 281; Bright v. Bragg, 175 Kan. 404, 264 P. 2d 494, and Judd v. City of Emporia, 183 Kan. 689, 331 P. 2d 316. As was held in the Bright case, consistency of decisions involving interpretation of the compensation act cannot be maintained by construing the act liberally in favor of compensation where the workman seeks compensation, and strictly against compensation when he seeks damages. On this point see also Hoffman v. Cudahy Backing Co., 161 Kan. 345, 349, 350, 167 P. 2d 613. With respect to these two defendants, plaintiffs remedy was exclusively under the compensation act, and therefore their demurrer to the petition was erroneously overruled.
This brings us, then, to the question whether, under the facts alleged in the petition, a cause of action for damages is stated against defendant Smith — that being one of the grounds of his demurrer. Concededly, being engaged in farming, he was not operating under the compensation act (G. S. 1957 Supp. 44-505), and under the rule of Giltner v. Stephens, above, the mere fact that a barn was being constructed on his farm did not bring him within the act.
. The proposition, therefore, narrows down to the question whether the petition states a cause of action against him based either on specific acts of negligence — or under the doctrine of res ipsa loquitur, as appears to be plaintiff’s theory in paragraph 24 and 25 of the petition, quoted above.
A short answer to any contention concerning the theory of res ipsa loquitur is that the allegations of the petition negative that defendant Smith was in control of the instrumentality (the scaffold) either at the time it was allegedly negligently constructed or at the time the accidental injury occurred. Paragraph 23 of the petition affirmatively states that at all times Hendershot and Singleton were in sole control and possession and maintained the entire and exclusive supervision over the scaffold, and that the selection of materials therefor and the design, planning, construction, erection, inspection and testing thereof, and especially at the times of the commission of an act or acts of negligence or omission, were exclusively and solely their acts.
In Nichols v. Nold, 174 Kan. 613, 258 P. 2d 317, 38 A. L. R. 2d 887, in discussing the doctrine of res ipsa loquitur, it was said:
“The real test is whether defendants were in control at the time of the negligent act or omission which either at that time or later produced the accident.” (p. 620.)
See also Lamb v. Hartford Accident & Indemnity Co., 180 Kan. 157, 162 and 163, 300 P. 2d 387.
It is clear the petition does not state a cause of action against defendant Smith under the theory of res ipsa loquitur — in fact, the allegations of the petition affirmatively negative application of the doctrine.
Does the petition allege specific acts of negligence on*his part? We think not.
The accident in question resulted from the collapse of the scaffold upon which plaintiff and Hendershot were standing, apparently caused by a split piece of board referred to as a “scab” (see paragraph 17 of the petition). It alleges (paragraph 16) that Hendershot performed most of the work in the construction and erection and the attachment of the scaffold to the shed; that he, Hendershot, selected all lumber used in its construction, planned and designed its construction, supervised the work of its construction and every detail thereof, selected and furnished all of the materials therefor, and furnished the scaffold in a finished state to plaintiff for his, plaintiff’s, use in performing work assigned to him by Hendershot. The allegations of paragraph 23, in which Hendershot and Singleton are alleged to have had the entire and exclusive supervision over the scaffold and its construction, have already been noted and will not be repeated. It is significant to note that nowhere is defendant Smith charged with any specific act of negligence in connection with the actual and proximate cause of plaintiff’s injury, namely, the collapse of the scaffold. From the allegations, if anyone was negligent it was Hendershot, and not Smith.
Careful consideration has been given to all contentions relating to the alleged liability on the part of Smith, but our conclusion is that the petition fails to state a cause of action against him. It follows that his separate demurrer was- likewise erroneously overruled.
The judgment of the trial court is therefore reversed with directions to sustain each of the two demurrers to the petition.
Wertz and Robb, JJ., dissent from paragraph 2(c) of the syllabus and the corresponding portion of the opinion. | [
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The opinion of the court was delivered by
Jackson, J.:
Hirst sued Allen in the court below seeking to quiet title to certain described real property in Wyandotte county. Allen answered and following certain denials agreed with Hirst that plaintiff had purchased the real estate from the estate of Laura Belle Huff, an incompetent; alleged that the contract attached to plaintiff’s petition was not complete but that the actual contract had been filed in the probate court; that Allen’s name was inserted in the deed to Hirst “for the convenience and protection of the incompetent’s estate as indicated in the attached petition which is marked Exhibit A and made a part hereof . . .”
Neither the contract attached to plaintiffs petition nor the “petition” attached to defendant Allen’s answer are shown in the abstract of appellants herein.
On June SO, 1958, the guardian of the incompetent’s estate filed a pleading denominated an “Interpleader.” Apparently this paper was filed without leave of court and the court seems to have ordered the paper stricken. Later Tipton “as guardian and special administrator of the estate of Laura Belle Huff’ filed a formal motion to intervene and be made a defendant under G. S. 1949, 60-417. This motion contended movant should be made party for the reason:
“. . . your movant has an interest in this action in that the defendant, R. L. Allen, is not the real party in interest for he was merely acting and designated as trustee for your movant as guardian of the estate of Laura Belle Huff, an incompetent, in taking title to an undivided interest in the real property described in plaintiff’s Petition which plaintiff purchased from your movant as such guardian, and at the time of said purchase entered into a contemporaneous oral agreement with your movant as more fully appears from the copy of movant’s proposed answer attached hereto as a part hereof.”
In the proposed answer attached to the above motion, Tipton alleges that the guardian’s deed was delivered to plaintiff at a time when the parties were uncertain as to how much of the real estate was to be taken for highway purposes by the Kansas Turnpike Authority; that the parties agreed that if a major portion or all of said property was taken, they would divide any excess received from the turnpike authority over and above the purchase price paid by the plaintiff. It is alleged that all of said property was condemned by the turnpike athority.
The above motion to' intervene and be made a party defendant was denied by the trial court, and defendant Allen and guardian Tipton appeal from that order to this court.
It would appear that Allen and Tipton agree that Allen is acting as an express trustee for the benefit of the estate herein involved. Contrary to the conclusion pleaded in Tipton’s motion set out above, Allen as a trustee would constitute a real party in interest. See G. S. 1949, 60-403. As a trustee he would seem able to represent the interests of the estate alleged to be concerned herein. The trial court may have decided it was unnecessary to clutter the record further by the addition of other parties. Under the provisions of section 60-417, the court would seem to have some discretion in allowing intervention.
It has not been made to appear that there was error in the trial court’s ruling in this case, and the orders of that court should be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action in which the holder (payee) of a promissory note seeks to. establish the existence of an equitable mortgage and to foreclose such equitable mortgage subjecting the property so mortgaged to the payment of the debt.
The basic question is whether the transactions between a decedent maker of the note and his son, the payee, create an equitable mortgage in favor of the son against the property described on the reverse side of the note.
W. W. Hill, a resident of Lyon County, Kansas, died on the 15th day of October, 1952. He left surviving him his widow, Myrtle Bessie Hill, who was the original defendant in this action in the district court of Lyon County, Kansas, and W. E. Hill, also known as William'Elmer Hill, the appellant herein, his son by a previous marriage. Both W. W. Hill and his wife, Myrtle Bessie Hill, were in poor health prior to February, 1952, and by reason of their health, planned to move from the farm to a house in Emporia, Kansas. As a part of the purchase price for the house which was purchased in Emporia, W. W. Hill negotiated a loan from his son, the appellant herein, in the sum of $2,500, and executed and delivered to the appellant a promissory note for that sum. The note reads:
“$2500.00 February 20, 1952
“On or before Feb. 20-1957 or on demand after date I promise to pay to the order of W. E. Hill or his Estate Twenty Five Hundred Dollars_ No Dollars Payable at Emporia State Bank — with interest at 5% per annum —Value Received.
No__Due Feb. 20-1957 W. W. Hill
R. 4, Emporia, Kans.”
On the reverse side of the note appeared the following:
“This note is given in payment for a loan of $2500.00 in cash to make first payment of Arthur Glaze and Marjorie Glaze property — bought by W. W. Hill — Lot 21 — in Copely Addition to City of Emporia — House No. 115 S. Constitution St — Emporia, Kans. it is hereby agreed that the Holder of this note shall have $2500.00 interest in above described Property — besides his Legal interest as heir to Estate of W. W. Hill.
“I hereby agree to this agreement — 2-20-1952
W. W. HiE
“Paid $750.00 Oct. 15, 1952 from acct. at Columbia Bid & Loan Co.
Wm. E. HiE”
After the death of W. W. Hill an action was instituted in the district court of Lyon County, Kansas, by W. E. Hill against Myrtle Bessie Hill as defendant, seeking to have the court determine that he was the owner of an equitable mortgage covering the real estate described on the reverse side of the promissory note and asking for the foreclosure of the mortgage and the sale of the property to satisfy the amount due on the note.
The petition, filed on October 23, 1954, alleged the essential facts above related, and further alleged that at the time the money was borrowed and as a part of the consideration for the loaning of said money, W. W. Hill orally covenanted and agreed with the plaintiff (appellant) that he and his wife, the defendant, would execute and deliver to the plaintiff a good and sufficient instrument mortgaging and conveying the described real estate to the plaintiff as security for the repayment of the loan. The petition further alleged that by and with the use of the sum of money loaned by the plaintiff, W. W. Hill purchased the described real estate with a dwelling located thereon, “and caused the title to said real estate to he conveyed to W. W. Hill and Myrtle Bessie Hill, as joint tenants, with the right of survivorship.” (Emphasis added.)
The petition alleged that after receiving the conveyance of title to the said real estate, W. W. Hill orally advised the plaintiff that the defendant refused to sign and execute a mortgage covering said real estate. By reason of the foregoing allegations the plaintiff alleged he is entitled to and is the owner of an equitable mortgage in and to the described real estate, and has a first, prior and valid lien thereon, securing the repayment of the sum of $2,500, together with interest at the rate of 5% per annum from February 20, 1952, until paid. The petition then alleged:
“8. That on the 15th day of October, 1952, the said W. W. Hill died without having conveyed or otherwise alienated said real estate herein described.
“9. That no part of said sum of money, nor interest thereon, has been paid, except the sum of $750.00 which was paid on the 15th day of October, 1952; that there is now due and owing on said note, the sum of $1750.00 together with interest at the rate of five per cent per annum on $2500.00, from the 20th day of February, 1952, until the 15th day of October, 1952, and interest at the rate of five per cent per annum on $1750.00, from October 15, 1952, until paid.
“10. That the defendant, Myrtle Bessie Hill, has or claims to have some interest or lien upon said mortgaged premises, which interest or lien is subsequent and subject to the lien of the plaintiff; that no personal claim is being made by the plaintiff against the defendant.
“Wherefore, plaintiff demands judgment adjudging the amount due on said note and mortgage, and adjudging and directing the sale of the premises aforesaid and the payment from the proceeds of said sale of the costs and disbursements of this action, and the amount due the plaintiff as aforesaid, together with interest to the time of said payment, and that the defendant and all persons claiming under her, be barred and foreclosed of all rights, claims, liens and equity of redemption in said mortgaged premises and every part thereof subject only to the right to redeem said premises within eighteen months.” (Emphasis added.)
The record discloses a demurrer was filed on October 29, 1954, challenging the petition. This demurrer was pending on the 2nd day of March, 1957, when the defendant, Myrtle Bessie Hill, died. On May 24, 1957, the administratrix of the estate of Myrtle Bessie Hill, Pearl G. Garriott, filed a motion to revive the action in her name and requested until the 5th day of June to answer the plaintiff’s petition. The action was thereupon revived by an order of the trial court in the name of the administratrix of the estate of Myrtle Bessie Hill and the administratrix was granted an extension of time in which to file an answer. Insofar as the record discloses the demurrer was abandoned.
The answer admitted that Myrtle Bessie Hill was the wife and widow of W. W. Hill, deceased, and that she refused to sign the note set out in the plaintiff’s petition, and further admitted that W. W. Hill died on the 15th day of October, 1952. It placed in issue the execution of the note by W. W. Hill during his lifetime and the giving of an equitable mortgage and alleged that if an equitable mortgage were given by W. W. Hill to the plaintiff, all rights thereunder ceased upon the death of W. W. Hill and the equitable mortgage became a nullity.
As an affirmative defense it was alleged that the plaintiff prior to the filing of this action and on February 13, 1953, filed his claim in the probate court of Lyon County, Kansas, against the estate of W. W. Hill, deceased, for the recovery of the amount allegedly due him under the note in question and that the plaintiff caused said claim to be set for hearing. By reason thereof it is alleged the plain tiff elected his remedy to recover on said note from the assets of the estate of W. W. Hill, deceased, and is estopped from now attempting to recover on said note against the property of the defendant, Myrtle Bessie Hill, deceased.
The trial court after hearing all the evidence presented by the parties made the following findings and conclusions:
“FINDINGS OF FACT.
“1. On February 20, 1952, W. W. Hill executed and delivered to plaintiff his promissory note, payable to plaintiff in the principal amount of $2,500.00.
“2. Prior to the filing of the instant action, plaintiff filed a claim in the Probate Court of Lyon County, Kansas, against the estate of W. W. Hill to recover on the same note that forms the basis of this action.
“3. The real estate in question is not a part of the assets of the estate of W. W. Hill. Title to the same was taken in the names of W. W. Hill and his wife, Myrtle Bessie Hill, in joint tenancy.
“4. W. W. Hill did not agree to give a mortgage on the real estate purchased by him and his wife to secure the payment of the $2,500.00 note.
- “5. Plaintiff did not request or demand that W. W. Hill or Myrtle Bessie Hill execute a real estate mortgage covering the real estate in question.
“6. Myrtle Bessie Hill did not know of the existence of the $2,500.00 note executed by her husband.
“7. There was no evidence that the estate of W. W. Hill is insolvent.
“CONCLUSIONS OF LAW.
“1. G. S. 1949, 59-1303 is not applicable under the facts of this case.
“2. Plaintiff has an adequate remedy at law by prosecuting his claim against the estate of W. W. Hill.
“3. Plaintiff is not entitled to the relief sought in this case.”
Attention is directed to paragraphs numbered 4, 5, 6 and 7 of the findings of fact. A careful review of the abstract and counter abstract of the record presented in this case reveals that these findings have been made on the basis of negative evidence. That is, there was no evidence whatever before the trial court to have found one way or the other on any of these matters except finding of fact No. 4 in which the only testimony before the court was that of Goldie Hill, wife of W. E. Hill, to the effect that W. W. Hill did agree to give a mortgage on the real estate purchased when his wife returned from Newman Hospital. Whether an oral agreement to give a mortgage was made by W. W. Hill, as alleged in the petition, becomes immaterial in view of our decision presently to be considered.
■Finding of fact No. 1 implies a finding by the trial court that the promissory note in question was given for an adequate con sideratíon. The instrument itself which the trial court found to have been executed and delivered specifically recites that it was given in payment for a loan of $2,500 in cash for the payment on the property in question. Lack of consideration is an affirmative defense which must be asserted and established by the person claiming it. (Furst v. DeWitt, 145 Kan. 300, 65 P. 2d 567.)
The record discloses substantial evidence to support the finding that W. E. Hill had advanced $2,500 to W. W. Hill to purchase the property in question. The oral testimony of Goldie Hill is corroborated by documentary evidence in the form of a sight draft on the Eureka Federal Savings and Loan Association in the amount of $2,500, dated February 20, 1952, by W. E. Hill, and a deposit slip showing $2,500 deposited to the account of W. W. Hill on February 20, 1952, in the Emporia State Bank indicating: “Checks as follows: W. E. Hill 2,500.00.”
Where the execution and delivery of an instrument in writing has been properly established in the trial court, such as the note here in question, this court on review should make the determination for itself as to the interpretation to be placed upon such documentary evidence. (Goldberg v. Central Surety & Ins. Corp., 145 Kan. 412, 65 P. 2d 302; and Mathewson v. Campbell, 91 Kan. 625, 138 Pac. 637.)
The chronological sequence of events relating to the facts in this case, which are either established or uncontroverted, will materially assist in further discussion.
On February 20, 1952, the promissory note of W. W. Hill to W. E. Hill was executed and delivered.
On February 20, 1952, a general warranty deed conveying title to the property described on the reverse side of the note to W. W. Hill and Myrtle Bessie Hill, as joint tenants with right of survivor-ship, was made and acknowledged (recorded March 6, 1952).
On October 15, 1952, payment of $750 was endorsed on the back of the note.
On October 15, 1952, W. W. Hill died.
On February 13, 1953, W. E. Hill exhibited his demand against the estate of W. W. Hill, deceased, for the balance due on the note by filing his petition for its allowance in the probate court of Lyon County.
On October 23, 1954, the petition was filed commencing this action. ■
On February 20, 1957, the note in question matured unless it matured prior thereto by reason o£ the demand feature.
On March 2, 1957, the defendant in this action, Myrtle Bessie Hill, died.
On May 24, 1957, this action was revived on the motion of the administratrix of the estate of Myrtle Bessie Hill, deceased, in her name.
On October 28, 1957, this case was heard in the district court.
On May 26, 1958, the trial court made and filed its findings and conclusions.
On June 25, 1958, the trial court overruled the plaintiff’s motion for a new trial.
On July 18, 1958, the journal entry of judgment was filed.
On July 14, 3*958, appeal was taken to the Supreme Court from the order overruling the motion for a new trial, the findings and conclusions, and the judgment of the district court.
On May 9, 1959, the claim of W. E. Hill against the estate of W. W. Hill in probate court based on the promissory note dated February 20, 1952, was ultimately disallowed on appeal in the district court, claimant offering no evidence in support thereof. It should here be noted the appellant at no time presented any evidence in support of the claim or caused it to be allowed.
Does the note in question establish an equitable lien on the real property described on the reverse side of the note?
There can be no doubt upon the authorities that where one party advances money to another upon the faith of an agreement by the latter to secure its payment by a mortgage upon certain lands, but which is never executed, or which, if executed, is so defective or informal as to fail in effectuating the purpose of its execution, equity will impress upon the land intended to be mortgaged a lien in favor of the creditor who advanced the money for the security and satisfaction of his debt. The lien attaches upon the payment of the money and unless there is a waiver of it, express or implied, remains and may be enforced so long as the debt itself may be enforced.
The whole doctrine of equitable mortgages is founded upon the cardinal maxim of equity which regards that as done which has been agreed to be done, and ought to have been done. In order to apply this maxim according to' its true meaning the court will treat the subject matter, as to collateral consequences and incidents, in the same manner as if the final acts contemplated by the parties had been executed exactly as they ought to have been.
The doctrine of equitable mortgages is not limited to written instruments intended as mortgages, but which by reason of formal defects cannot have such operation without the aid of the court, but also to a very great variety of transactions to which equity attaches that character. It is not necessary that such transactions or agreements as to lands should be in writing in order to take them out of the operation of the statute of frauds because they are completely executed by at least one of the parties and are no longer executory, and because the statute by its own terms does not affect the power which courts of equity have always exercised to compel specific performance of such agreements.
In such case the equitable lien decreed results from the operation of the law upon the entire conduct of the parties, and hence, is in terms excluded from the inhibition of the statute. (Foster v. Bank, 71 Kan. 158, 80 Pac. 49, and cases cited therein.)
Many decisions in this jurisdiction have firmly announced the foregoing principle. In Clapp v. Maurer, 94 Kan. 549, 146 Pac. 1155, the court quoted from 16 Cyc. 85, 88, as follows:
“ ‘Where the transaction is in its nature and circumstances such as to give one party an inequitable or unconscionable advantage over the other, equity, inferring fraud, will not only decline to lend its aid to the party seeking to enforce such claim, but will often actively interfere to give relief to the other party. . . . While it is said that equity has general jurisdiction, concurrent with law, for the enforcement of liens, equity nevertheless recognizes and enforces certain liens not recognized at law. Of these the most frequent species are the lien of a vendor for unpaid purchase-money, and the so-called .equitable mortgages. Besides enforcing liens created by express contract, equity, while disclaiming the power to create a lien in the absence of contract, has nevertheless protected equitable rights by impressing liens in the absepce of express contract and contrary to tire rules of law.’ . . .” (p. 552.)
The form of an agreement by which security is given is unimportant. If the purpose plainly appears equity regards the substance and gives effect to the intention. Courts of equity are not governed by the same rules as courts of law in determining whether a mortgage has been created. Equity looks at the final incident and purpose rather than at the form. If the intent appears to give or charge real property as a security for an obligation the lien follows. (Charpie v. Stout, 88 Kan. 318, 128 Pac. 396.)
It is said of an equitable hen that it is not a right of property in the subject matter of the lien nor a right of action therefor, nor does it depend upon possession; but is merely a right to have the property subjected to the payment of a debt or claim, and it applies as well to charges arising by express engagement of the owner of property as to a duty or intention implied on his part to make the property answerable for a specific debt or engagement. (Bisby v. Quinby, 92 Kan. 86, 140 Pac. 635.)
For additional authorities on equitable liens see, Fitzgerald v. Fitzgerald, 97 Kan. 408, 155 Pac. 791; Bank v. Pickering, 111 Kan. 132, 205 Pac. 1110; Farmers State Bank v. St. Aubyn, 120 Kan. 66, 242 Pac. 466; Assembly of God v. Sangster, 178 Kan. 678, 290 P. 2d 1057; and Rex v. Warner, 183 Kan. 763, 332 P. 2d 572.
In turning now to the promissory note in the instant case we need not be concerned with the statute of frauds or any oral promises the decedent, W. W. Hill, may or may not have made. The promissory note itself and the expressed intention of the maker of the note, referred to as an agreement on the reverse side of the note, all being part of the same instrument, are fully written and appear over the handwritten signature of W. W. Hill.
The intention expressed was that the holder acquired a right to have the described property subjected to the payment of the debt. If, under the note, the appellant is relegated to his claim against the assets of the estate of W. W. Hill, such reduction of the assets of the estate would reduce the sum which the appellant would receive from the assets of the estate as an heir. This would be in total disregard of the provisions “the Holder of this note shall have $2500.00 interest in above described Property — besides his Legal interest as heir to Estate of W. W. Hill.” It could hardly be argued the parties intended at the time the money in question was loaned and the note given with the security contemplated by the parties, that the assets of the estate of the father, other than the security contemplated, would stand liable for the payment of this note to the detriment of the appellant’s rights. We therefore think it is clear, upon the authority of the previous decisions of this court, the written instrument in question, read in its entirety, gave rise to an equitable lien. The instrument is a mortgage, for it evidences a debt and contains a promise to pay it out of the property. It is not the usual mortgage but it is sufficient to vest in the creditor an equitable lien.
While the property purchased with the proceeds of the loan became the homestead of W. W. Hill and Myrtle Bessie Hill im mediately upon conveyance, there can be no doubt, to the extent of the money advanced for the purchase price of the land, the equitable mortgage of W. E. Hill was a purchase-money mortgage and, therefore, valid without the consent of Myrtle Bessie Hill, notwithstanding the property was occupied as a homestead. (Foster v. Bank, supra.) Money borrowed from a third person by the purchaser of a homestead, and paid to the vendor, is purchase-money for which the purchased property is liable to such third person where the transaction between the parties to the lending transaction contemplates security for the obligation. The purchase-money mortgage arising from such transaction takes priority over the homestead exemption in Article 15,' Section 9 of the Constitution of Kansas (Bank v. Pickering, supra, and cases cited therein) and it matters not that such purchase-money mortgage may be an equitable mortgage.
The subsequent title acquired by Myrtle Bessie Hill upon the death of W. W. Hill under the joint tenancy deed by right of survivorship did not place her in the position of a bona fide purchaser. She became the sole owner of the fee title by operation of law (See, Ulrich v. Ulrich, 1 N. Y. Supp. 777) and the property in her hands remained subject to the equitable purchase-money mortgage.
The appellee contends the mortgage was not a right which survived the death of W. W. Hill under the joint tenancy deed. This position is untenable. If such position were recognized upon the facts and circumstances here presented, the use of a joint tenancy deed would be permitted to sanction monstrous consequences. We therefore hold the property in the hands of Myrtle Bessie Hill was impressed with an equitable purchase-money mortgage in favor of W. E. Hill to the extent of the unpaid obligation on the note. (See, Charpie v. Stout, supra.)
It is argued the appellant, W. E. Hill, did not plead or prove default in the payment of the note or that a demand was made under the demand provision of the note. We need not ponder the sufficiency of the petition since the appellee abandoned her demurrer and the answer did not attack these defects. The petition did allege default and the evidence disclosed the filing of a claim by the appellant in the estate of W. W. Hill, deceased, within the statutory period pursuant to G. S. 1949, 59-2237.
After the death of W. W. Hill demand would have been futile. The only person against whom a demand could have been made was.his personal representative (G. S. 1949, 52-707), but the personal representative is powerless to make payment without an order of the probate court appointing him. To constitute a valid demand it is not necessary that the holder of a note pursue the demand to an ultimate conclusion in a court of law. Furthermore, the appellant did file a claim in the probate court, and, if under the circumstances a demand were necessary, this was sufficient to mature the note and authorize foreclosure.
•The appellee argues the appellant had an adequate remedy at law by proceeding to file his claim for the amount due on the note in the probate court in the estate of W. W. Hill, deceased. This is interwoven with the affirmative defense alleged concerning the appellant’s election of his remedy and estoppel. Embraced within tiae foregoing is the question whether, under the facts and circumstances here presented, a secured creditor upon the death of the mortgagor, before maturity or payment of the mortgage debt, may proceed to foreclose his mortgage in the district court and also file his claim against the estate of the deceased mortgagor in the probate court. These questions will be considered together.
The existence of a remedy at law does not deprive equity of jurisdiction unless such remedy is clear, adequate and complete. Such remedy at law must be equally complete, efficient, practical and prompt with the remedy in equity. And such remedy must exist against the same person from whom the relief in equity is sought. (Preston v. Oil Co, 108 Kan. 810, 196 Pac. 1098; and 30 C. J. S., Equity, §25, p. 347.) Regarding a failure to plead that plaintiff was without an adequate remedy at law see, Preston v. Oil Co., supra.
It is unnecessary to debate whether the appellant was entitled to proceed in a court of equity to foreclose his mortgage in the instant case. In this jurisdiction it is settled that all actions to foreclose mortgages are equitable in nature. (Thompson v. Matthews, 163 Kan. 434, 183 P. 2d 216; Federal Land Bank v. Butz, 156 Kan. 662, 135 P. 2d 883; and Union State Bank v. Chapman, 124 Kan. 315, 259 Pac. 681.)
Looking first to the practical approach concerning the circumstances in which the appellant found himself upon the death of W. W. Hill, it may be observed he was in danger of losing his security. There being no mortgage of record, Myrtle Bessie Hill, having become the sole owner of the fee title by right of survivor- ship, was in a position to convey the property free and clear to a bona fide purchaser.
While it is true the appellant exhibited his demand against the estate of W. W. Hill, deceased, by filing his petition for its allowance in the proper probate court, he deferred asking for the allowance of the amount due on his claim in the probate court and therefore did not foreclose his right to proceed against the security (In re Estate of Harris, 159 Kan. 431, 155 P. 2d 425) by subsequently filing his action to foreclose in the district court. In fact, the appellant at no time prosecuted his claim in the probate court to an allowance of the claim. After appeal was taken to this court, the claim filed in the probate court against the estate of W. W. Hill, having been appealed to the district court for the second time, was disallowed on the ground the appellant refused to offer any evidence. This would indicate the appellant was looking solely to the security for the satisfaction of the indebtedness.
In 1 Wiltsie on Mortgage Foreclosure, § 157, it is said:
“The death of the mortgagor before maturity or payment of a mortgage debt does not in any way affect the rights of the mortgagee to foreclose the mortgage on default of any of its covenants, without its previous presentation as a claim against the estate, or an allowance by the administrator or a court. After the death of a mortgagor the mortgagee may institute an action to foreclose the mortgage against the heirs of the mortgagor, and cannot be compelled to relinquish his lien on the real estate and to share in the general assets of the estate. The mortgagee is not bound to proceed against the estate of the deceased mortgagor before bringing his action or proceeding to foreclose the mortgage.
“The death of the mortgagor in no wise affects die lien of the mortgagee or his rights thereunder, even as against the heirs of the mortgagor, who have a right to have the mortgage debt paid out of the personal property of the decedent. But where the mortgage is foreclosed without presentation and allowance against the estate of the deceased mortgagor, the collection of the debt will be limited to the proceeds arising from the sale of the mortgaged property, where no claim is presented as required by the statute.” (pp. 275, 276.)
In the instant action Myrtle Bessie Hill as successor to the property jointly held with W. W. Hill, deceased, would be in the same position as the heirs of a mortgagor referred to in the first paragraph above quoted.
Among the authorities cited by Wiltsie for the above proposition of law is a Kansas case, Andrews v. Morse, 51 Kan. 30, 32 Pac. 640, where it was said:
“. . . The death of the mortgagor did not impair or affect the lien of the mortgage. It did not place the mortgagee who had a lien in the same position as an unsecured creditor, and remit him to the general assets of the - estate to satisfy his lien. If he looks to the personal assets in the hands of the administrator for payment of his debt or any part of it, he must then present his demand under the statute. If he fails to present it within the three-year period, he can obtain nothing from the general assets, and is limited to the proceeds arising from the sale of the mortgaged property. An equitable claim like the plaintiff’s is enforceable in the district court, and is not such a demand as the statute referred to contemplates. Neither the presentation of the claim in the probate court nor the failure to present it precludes the foreclosure of the mortgage lien until the mortgage debt has been paid or extinguished . . .
. . It has been said that ‘it would appear to be the better opinion that a creditor may rely upon a mortgage or other specific lien, although the claim secured by it has not been presented; but in such case he has no claim upon the general assets in the hands of the administrator.’ . . .
“The failure of the plaintiff to present his claim secured by mortgage until after the lapse of three years will prevent him from obtaining a judgment for any deficiency that may remain after exhausting the mortgaged property, but it does not affect his rights to foreclose his mortgage, and to subject the land so mortgaged to the payment of the debt.” (pp. 32, 33.) (Emphasis added.)
The foregoing case was decided under G. S. 1889, Section 2865, barring all demands against the estate of a decedent not exhibited within three years. Under the present probate code the time within which a demand may be filed is nine months after publication notice to the creditors by the executor or administrator (See, G. S. 1949, 59-2236) but the principle is the same unless subsequent enactments of the legislature have altered the situation.
The code of civil procedure, G. S. 1949, 60-3107, provides in part:
“In actions to enforce a mortgage, deed of trust, or other lien or charge, a personal judgment or judgments shall be rendered for the amount or amounts due, ...”
The above provision has been a part of the code in this jurisdiction since G. S. 1868, Chapter-80, Section 399. A study of the cases indicates the foregoing provision of the statute has been construed to require the rendition of a personal judgment in actions to foreclose a mortgage or a lien only where the court has jurisdiction of the necessary party or parties to do so. Thus, Justice Brewer, in the case of Walkenhorst v. Lewis, 24 Kan. 420, said:
“. . . But suppose no personal judgment was permissible under the pleadings: would the decree of foreclosure and sale be thereby rendered a nullity? Is it the intention of § 399 of the code to prevent foreclosure without a personal judgment against some party? If the mortgagor be deceased, cannot the mortgage be foreclosed without the appointment of an administrator?” (p. 426.)
Further, in Challiss v. Headley & Carr, 9 Kan. 684, it was held that a decree in a suit to foreclose a mortgage which contains a personal judgment for money, even if unauthorized, shall not avoid the order of foreclosure and sale.
In Crooker v. Pearson, 41 Kan. 410, 21 Pac. 270, a nonresident debtor was beyond the jurisdiction of this state in Iowa when he executed the note payable in Iowa and gave a mortgage upon land in Kansas. It was held the law of Iowa, where a mortgage debt is not barred until ten years after it becomes due, controlled and therefore removed the bar so as to permit an action to subject the mortgaged property to the payment of the debt. The court recognized no personal judgment could be rendered thereon, but only a judgment that the mortgage be foreclosed and the money applied to the payment of the mortgage debt.
It was argued in State Bank of Downs v. Criswell, 155 Kan. 314, 124 P. 2d 500, that a mortgage could not be foreclosed without a personal judgment having been rendered against the personal representative of the decedent. The judgment entered by the court was expressly made a first, prior and paramount lien on the land to the extent of the indebtedness represented by the note and secured by the mortgage. The court held it was not necessary that a personal judgment should also have been rendered on the note against the personal representative of the decedent in order to force the security. The court said a mortgage may be given to secure the debt of another.
In Graham v. Graham, 38 Kan. 440, 17 Pac. 152, the court recognized that a plaintiff had the “undoubted right to seek relief in either the probate or the district court — perhaps in both at the same time, if he had simply asked for the allowance of his note in the probate court, and only for a judgment in the district court establishing the mortgage lien as a judgment lien, and an order to sell the real estate in question.” (p. 442.)
We deem it unnecessary to decide whether G. S. 1949, 59-1303, is applicable to the facts and circumstances presented by the instant case. If applicable, it should be noted the appellant here sought to do the very thing contemplated by this section of the statute cited. He chose the course of action which would exhaust the security for his debt prior to obtaining an allowance in the probate court against the estate of W. W. Hill, deceased.
It is clear no judgment for deficiency in a suit to foreclose a mortgage can be rendered against the heirs or widow of the de ceased, for they are not personally liable for the mortgage debt.
We therefore hold the mere exhibition of the appellant’s demand against the estate of the deceased mortgagor by filing his petition for its allowance in the probate court does not release the mortgage or prevent a foreclosure of the mortgage by an action in the district court. Upon the death of the mortgagor, the holder of the mortgage may foreclose it without proving the debt against the mortgagor’s estate. (See, 3 Jones on Mortgages, §1574, p. 10.)
Other questions are apparent from the factual statement and some are raised by counsel for the respective parties in their briefs, but the trial court having erred in its conclusion regarding the basic premise upon which this action is founded — the existence of an equitable mortgage — left certain matters undetermined, a discussion of which would serve only to prejudice the rights of one party or the other. Finding it necessary to refer the case back for a new trial, further consideration of the case is deferred until such time as the trial court shall have first passed upon further questions made necessary by our decision.
The judgment of the trial court is reversed and the cause remanded with directions to grant a new trial. | [
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|
The opinion of the court was delivered by
Price, J.:
Defendant was charged with murder in the first degree. He was convicted of murder in the second degree and has appealed.
The killing occurred on the night of January 21, 1957, on the front steps of defendant’s home at 318 Quincy Street, Topeka. For some time prior thereto defendant, who was thirty years of age and who was partially disabled as the result of an injury sustained while in military service, had been keeping company with a woman by the name of Roxie Brown. Their “relationship” was of an intimate nature and she had been living with him at his home. Shortly prior to the night in question they had become estranged and she went to live with her mother. During this period of “estrangement” Roxie had been keeping company with Johnny George, the deceased. On the night in question Roxie, George and some of their friends were in a beer tavern drinking beer and dancing. Defendant telephoned the tavern and requested Roxie to leave and come to his home so that they could straighten out their difficulties. She replied that she would. About five minutes later defendant again called her at the tavern requesting that she leave and come to his home. During this conversation she told him that she was with George. Shortly thereafter she and George left the tavern in George’s car and drove to defendant’s home., She went into the house. George remained in the car out in the street. A few minutes later he started blowing his horn. Defendant went to the front door of his home and told George to quit it, that he was disturbing the neighbors. Defendant then returned to the kitchen and resumed his conversation with Roxie. A few minutes later George again started blowing his horn, whereupon defendant went to the door and told him to stop it. An argument then developed between the two men. Roxie came to the door and told George to “go on” and that she was going to stay and go back to the tavern later with defendant. Upon being informed of Roxie’s decision George got out of his car, came into the yard and started up the steps to the front porch. He demanded that Roxie leave with him. The argument became more heated and profane. George grabbed Roxie and started pulling her away. Defendant resisted and started pulling her back. In the struggle she lost her footing and fell over the porch banister. Meanwhile the argument continued. As George came toward defendant, he, the defendant, pulled a “22” revolver from his belt and commenced firing at George. He fired six shots in rapid succession, each of which hit George. Four of the shots entered the back part of his body. George staggered into the street and died shortly thereafter. At defendant’s request a friend called the police. Upon their arrival they found defendant standing over George’s body in the street with the revolver, the cylinder of which was open, in his hand. Defendant was taken into custody and, as before stated, was subsequently charged with murder in the first degree.
The foregoing is intended as a general outline of the evidence showing the events leading up to the killing. At the outset it should be stated that defendant at no time denied the killing, and that his entire defense was based upon the law of self-defense— therefore the killing was justifiable.
We will discuss various contentions made by defendant in tin's appeal.
First, it is contended that Roxie Brown was the common-law wife of defendant and therefore, under G. S. 1949, 62-1420, could not be compelled to testify for the state against him.
The court heard testimony on this point in the absence of the jury and found that the “relationship” of the parties was not such as to create a common-law marriage. It is unnecessary to discuss this testimony in detail. Entirely aside from the fact evidence was introduced showing that she had been divorced from another man just four months previous to the killing and therefore was without present capacity to enter into a common-law marriage with defendant, we agree with the trial court the evidence of the so-called common-law marriage fell far short of creating such relationship, and it was not error to require Roxie to testify for the state.
Several hours after the killing defendant was questioned by the officers in the presence of a court reporter who took down the questions and answers. This statement was admitted in evidence after the court heard testimony concerning the circumstances in connection with the taking of it. Defendant complains there was no showing that the statement was given voluntarily; that he was apprised of his rights, or that he had been told it might be used against him. There is no merit to this contention. It was clearly shown that the statement was voluntary; that defendant had been apprised of his rights and told that it might be used against him. Furthermore, the statement itself was substantially identical to the testimony given by defendant at the trial and contained nothing of a more damaging nature than did defendant’s own testimony.
A few moments after the shooting one Crim, who was in defendant’s home, wrapped a knife in a towel, gave it to Roxie and told her to throw it out on the porch. She did so. It was later found by the officers and was introduced by the state in evidence. Defendant claims that this was error because it was not shown that he had any knowledge of the incident. For the sake of argument, it will be conceded that he did not, and it is conceded that Crim wanted the knife placed out on the porch to make it appear that George attacked defendant with it, and that defendant thus was justified in shooting him. Perhaps evidence of this incident was of questionable competency, but, in view of defendant’s own testimony as to self-defense, its admission cannot be said to have prejudiced defendant in any way.
It next is argued that it was prejudical error for the court to admit in evidence a bloody shirt and jacket obtained from the mortuary, and which were worn by the deceased at the time he was shot. We likewise find no merit in this contention, if for no other reason than that defendant at all times admitted the shooting, his sole defense being that of self-defense.
It is contended the court erred in denying defendant the right to introduce evidence of the reputation of the deceased as being turbulent and quarrelsome. A careful examination of the record on this point shows that when testifying in his own behalf defendant was questioned as to his present knowledge of deceased’s reputation as to these matters, but was not- questioned as to his prior knowledge of the same. In fact, the court told counsel that if they proceeded properly such evidence would be admissible. They did not do so, however, and the court did not err in its ruling.
In defendant’s case in chief a brother of defendant testified that on the night of the shooting — although he had not yet heard anything about it — he went to defendant’s residence and in the yard found a glove containing some “brass knucks.” During the course of his examination he was asked a number of questions by the court, and it is claimed the nature of the questions was such as to prejudice defendant. We have examined the questions and answers and find no merit in this contention.
Next, it is contended the court erred in refusing to give several instructions requested by defendant concerning the issue of self-defense and the voluntary nature of the alleged “confession.”
We have examined in detail the thirty-seven instructions given by the court. The jury was instructed on murder in the first degree, murder in the second degree, and manslaughter in the first, third and fourth degrees. The jury was thoroughly and correctly instructed on the law of self-defense and justifiable and excusable homicide. It was not given a specific instruction relating to the question whether the so-called statement given by defendant was voluntary. Assuming, for the sake of argument, that ordinarily such an instruction would be proper, there was, under the evidence in this case, no occasion to give one relating to the matter because, as heretofore stated, defendant took the witness stand and testified to all matters contained in his so-called statement. The jury was properly and fully instructed on all matters in issue, and the court did not err in refusing any of the requested instructions.
One other point requires attention. The record before us does not contain the journal entry of the court’s judgment and sentence, but we are “told” by defendant in his brief that a sentence of from ten to thirty years was imposed. G. S. 1949, 21-403, provides that the penalty for murder in the second degree shall be confinement and hard labor for not less than ten years. Under G. S. 1949, 21-109, defendant could have been sentenced for his lifetime. In the absence of an affirmative showing to the contrary, the presumption is that a lawful sentence was imposed upon defendant under the mentioned statutes. Defendant contends, however, that his sentence should have been not in excess of seven years, as provided by G. S. 1957 Supp. 62-2239, which took effect July 1, 1957. There is no merit to this contention. This offense was committed on January 21, 1957, and the rule is that where the penalty for an offense has been changed by an amendment of the law since the offense is charged or proved to have been committed, the penalty imposed must be under the law as it stood when the offense was committed. (State v. Woodbury, 132 Kan. 22, 294 Pac. 928, Syl. 8.) We refuse to enter into an academic discussion of the 1957 act, as requested by defendant, for the reason that it clearly is inapplicable to this case.
And finally, it is contended the evidence clearly demonstrated that this killing was done in self-defense and therefore justifiable.
As before related, defendant testified in his own behalf and painted a rather vivid picture of the facts and circumstances as they appeared to him at the time he and the deceased engaged in the argument and skirmish on the steps and front porch of his home. The jury had a full picture of the entire matter but apparently took little stock in the self-defense feature of the case, as was within their province. A careful examination of this record shows nothing approaching reversible error such as to warrant a new trial. There was ample competent and substantial evidence to support the conclusion reached by the jury and, its verdict being approved by the trial court, the judgment must be and is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action in which the defendant, Enoch Jones, was convicted of the crime of manslaughter in the third degree under G. S. 1949, 21-413.
The controlling question on appeal is whether the evidence is sufficient to sustain a finding by the jury that the defendant was in the heat of passion at the time he killed another person.
The defendant contends the evidence establishes that the killing was committed in self defense as a matter of law.
The material facts in this case are not in dispute. Enoch Jones (appellant), a colored man, was at the time of the trial fifty-two years of age. He lived in Atchison, Kansas, all of his life and for years had worked for a clothing merchant in Atchison. For the last twelve and one-half years he owned the Lite and Rite Cafe which dispensed food as well as beer. He had never been in trouble and often went coon hunting and kept his hunting clothes, boots, flashlights and guns at the cafe. The guns were kept behind the bar.
On one of these hunting trips shortly prior to the incident in question the defendant froze a toe on his foot and on the night in question was crippled and limped when he walked by reason of this injury.
The defendant’s cafe was on South Fourth Street about one-half block from Main Street and approximately four blocks from the police station. Entrance is made from the front of the building on Fourth Street. The building is about seventeen feet wide and had a bar about fourteen feet long and about three feet wide from which beer was served. This bar was located about three feet north of the south side of the building. About six or seven stools were placed up against the bar and there were tables and chairs along the north side of the building as well as toward the west end of the building.
The building is approximately one hundred feet long. The eating counter runs north and south about half way back from the front of the building and is east of the beer bar. There is an opening between the eating counter and the beer bar so that one can walk between and go back to the kitchen and also go out the back way.
On Saturday, March 22, 1958, during the evening the defendant, his two daughters and other patrons were in his place of business engaged in ordinary conversation. One of the other persons was a man by the name of Willie Jones (not in any way related to the defendant, Enoch Jones). About 7:30 p. m., John Oliver, a colored man, approximately six feet three inches tall and weighing about two hundred fifteen pounds, came into the place, obtained a bottle of beer and then sat at a table with Willie Jones. Oliver had been consuming alcoholic beverage on the day in question. His blood, however, showed but .137% of alcohol at the time of his death.
At approximately 8:15 p. m., on the night in question Oliver and Willie Jones were engaged in conversation when suddenly Willie Jones got up from the table where they were sitting, went out the west front door of the tavern and was followed by Oliver. Approximately five minutes later Oliver returned to the interior of the tavern, had a glass of beer and was not necessarily associated with any of the other patrons within the building until approximately 8:30 p. m., when Willie Jones returned.
Upon Willie Jones’ return to the tavern he and Oliver sat at the same table occupied by other patrons of the tavern, including the defendant’s two daughters. Conversation between Willie Jones and Oliver resulted in an argument and at that time the defendant told both Willie Jones and Oliver they would have to leave. The argument continued and Willie Jones got up from the table and walked toward the back or east part of the tavern. He was immediately followed by Oliver. Oliver was described as having his right hand in his right front pocket of his trousers as he followed Willie Jones. There in the east part of the tavern Oliver and Willie Jones hesitated for sometime and were apparently engaged in argument. At this approximate time the defendant, Enoch Jones, placed a telephone call to the Atchison police department advising them that there was Rouble in his tavern and requested that they come at once. At this same time Willie Jones in a fast walk or run proceeded on the back side of the bar toward the front or west part of the building. He was pursued by Oliver who caught him at-the west end of the bar where a scuffle ensued. Both Oliver and Willie Jones were on the floor and Oliver had a pocket knife out and was holding it over Willie Jones’ face, who was resisting to avoid being knifed. At this point one of the defendant’s daughters came out of the restroom, saw the sRuggle and struck or grabbed Oliver’s hand which held the knife. This interference enabled Willie Jones to get up and flee.
Oliver got up from the floor with his knife in his hand and the defendant said to him “Kid, go on out, I done called the law.” The defendant told Oliver at three different Rmes to get out of the tavern. Sometime during the sRuggle or immediately thereafter, the defendant secured his double-barreled twelve-gauge shotgun which he had behind the bar, loaded both barrels and laid it across the bar.
The.third time the defendant ordered Oliver out of the tavern, Oliver shook his fist in the defendant’s direction (in which fist was contained the open pocket knife) and said “go ahead and shoot you black son-of-a-bitch, I don’t care for anyone in here,” or words to that effect. Oliver kept on walking toward the east end of the bar behind which the defendant was standing, and thereupon the defendant shot Oliver who fell dead in his tracks. At the point where Oliver was standing at the time he was shot, the distance around the east end of the bar to the point where the defendant was standing was approximately twenty feet.
The pathologist who performed the autopsy on the decedent’s body on March 23, 1958, removed 186 shot from the body of the deceased. He testified the medial course of these pellets was at an angle of some thirty degrees from the perpendicular, entering the deceased’s chest cavity near the right nipple.
The case was submitted to the jury upon instructions which included, among others, three on self defense and one on third degree mansláughter. The jury found the defendant guilty of manslaughter in the third degree as charged in the information, following which a motion for new trial was filed pursuant to G. S. 1949, 62-1723. It was overruled after hearing, and the defendant was sentenced to be confined to the State Penitentiary for a term not to exceed three years. Appeal has been duly perfected presenting the question heretofore stated.
G. S. 1949, 21-413, provides:
“The killing of another in the heat of passion, without design to effect death, by a dangerous weapon, in any case except wherein the killing of another was justifiable or excusable, shall be deemed manslaughter in the third degree.” “
The defendant contends that under the above statute the burden of proof is upon the state to show that the defendant killed another in the heat of passion. It is argued that there is not one bit of evidence that the defendant was ever mad, or had ever been in a fight with Oliver.
Both parties rely upon State v. Linville, 148 Kan. 142, 79 P. 2d 869. The words “heat of passion” were there construed to mean any intense or vehement emotional excitement of any kind prompting violence! and aggressive action, as rage, anger, hatred, furor; resentment or terror. While the foregoing case was concerned with manslaughter in the second degree under G. S. 1935, 21-411 (now G. S. 1949, 21-411), it is conceded the words “heat of passion” as used in 21-413, supra, has the same meaning.
The defendant further relies upon State v. Linville, supra, for the proposition that it is reversible error to instruct the jury as to the crime of manslaughter in the third degree and to submit such issue to the jury when the evidence in the case wholly fails to establish such crime.
Briefly stated, the defendant’s position is that the evidence established self defense as a matter of law.
The decision herein requires further examination of the evidence presented at the trial.
The defendant knew that Oliver was not a native of Atchison, having come from the State of Alabama within the past year or two. He also knew that Oliver was a quarrelsome and dangerous man. He knew Oliver had trouble at Carey’s Barbecue in Atchison, and when the owner attempted to call the police Oliver threatened the owner at the point of a knife. On another occasion Oliver had beaten the face of the defendant’s brother-in-law “to a pulp.” The defendant had seen his brother-in-law shortly after the mauling. The defendant was also told of an occasion when Oliver had “one of them dirks” after an individual across the river in St. Joseph, Missouri. Under these circumstances, considering the crippled condition of the defendant, it is argued the defendant had every reason to suspect that his life was in danger as Oliver approached him in a threatening manner with a knife.
The defendant, Enoch Jones, toojc the witness stand and testified substantially as to the facts heretofore related. Bearing on the question here presented he testified as follows on direct examination:
“Q. Now just tell the jury why you did this shooting?
“A. I was scared the man was going to come upon me with that knife and kill me and I had no — I couldn’t run.
“Q. That was because of your foot?
“A. That’s right.
“Q. This a big man, was he? You don’t know why he had the knife on Willie Jones, is that right?
“A. Seen him have the knife right over him. Willie was holding his hand.
“Q. Were you scared and afraid that he’d either cut you or kill you?
“A. That’s what I was afraid of.
“Q. And the reason you shot him?
“A. That’s the reason.
“Q. How many times did you plead with him to leave there?
“A. Three times.
“Q. And then you had called the police and you told him—
“A. I called the police and told him I had called, to get on out. All I wanted the man to do so I could continue doing business.
“Q. Just take the chair. You were trying to preserve the peace down there?
“A. I always do.
“Q. Now, tell me, did you get mad at him?
“A. No, I wasn’t mad at him or anyone.
“Q. You were just scared?
“A. I was just scared and I knowed I couldn’t get out of his way — from him come up on me with that knife.” (Empasis added.)
On cross examination by the county attorney the defendant testified in part as follows:
“Q. You remember what you said to him the third time when you told him to get out?
“A. ‘Boy, get out of here’. Pretty sure that’s what I said, pretty sure of it.
“Q. What did he say at that time?
“A. Well, he was walking with the knife in his hand towards me.
“Q. Enoch, what did he say?
“A. After I told him the third time?
“Q. Yes.
“A. Says — when I laid the gun, he kept coming around towards me — he said, ‘shoot me, you so-and-so-and-so-and-so.’
“Q. But it was after, when John Oliver was here (indicating) you reached over to the back bar into the drawer and got two shells?
“A. That’s right.
“Q. Why two shells?
• “A. I keep the shells there. Might have to have two, I always load — it is a double-barrelled—
“Q. You didn’t feel that you were in such a big hurry that you should only take time to get one of them?
“A. I always load two because it is double-barreled.
“Q. Even though you felt a man was going to kill you, you felt that you should take the time to put two shells into that gun?
“A. Wouldn’t take you no time to put two shells in, not in double-barreled—
“Q. Enoch, I believe you testified on direct examination that you thought that this man was after you.
“A. I know he was after me.
“Q. When did you think that he took it into his mind to get after you?
“A. When he got up along that bar and I kept telling him, “kid, go on out.’
“Q. What makes you think that he conceived the idea at that time or trying to get you or trying to kill you with that—
“A. He defied my orders and kept on walking with the knife, towards me with the knife in his hand.
“Q. And because he defied your orders and kept walking, made you conclude that he was after you?
“A. Didn’t make no conclusion about it, I would say.
“Q. Well, you shot the man?
“A. Sure, I shot — I was scared of him. He was going to — he had one man on the -floor with a knife over him.
“Q. And you drought that he was coming at you?
“A. I was scared he was going to cut me, too-, and I was crippled, I couldn’t get out of his way.
“Q. And it was after it became apparent to you then that he was going to come around the bar that you finally determined to shoot him?
“A. I detemined to shoot him because I was scared of him. He was still walking to me witir the knife open, held up in his hand.
“Q. And he was walking at a normal rate of speed?
“A. I would say — I couldn’t say the exact speed he was walking but he was walking close to the bar. The chairs, the stools are here (indicating), I am here. It is a narrow aisle and any time he is right there by the stools, he can reach over at least halfway of the bar. The bar is not wide.” (Emphasis added.)
There was testimony from the dispatcher for the Atchison police department that on March 22, 1958, a call was received from Enoch Jones at 8:44 p. m., concerning trouble at his tavern and he requested police assistance. Thereupon one officer who was patrolling in the city of Atchison was immediately dispatched by radio and another officer who was at the station was dispatched to the tavern. At 8:45 p. m., on that same evening the dispatcher received another call that a man had been shot at Enoch Jones’ tavern. The witness was certain of the time because he kept a log.
The evidence disclosed that Enoch Jones, immediately after shooting Oliver, called the police station and reported the shooting, which occurred prior to the arrival of any police officer at the scene. Officer Lemke testified that Enoch Jones told him immediately after the incident that Oliver was asked to leave but.refused, and in the conversation the defendant told the officer "that he shot the black s-o-b. Only he didn’t say s-o-b.”
Officer Lemke further testified that the head of Oliver’s body was facing east upon his arrival and was located toward the east end of the bar with a knife, which had the blade open, still in Oliver’s hand. The body was about five feet north of the bar and approximately a foot distant from the stools which were up against the bar.
The chief of police in the city of Atchison, Michael A. Wood, questioned the defendant the night of the shooting. He testified:
“Jones said that the naan was causing a disturbance; that he had called the police. The man had broken some of his furniture. He had asked him to get out and the man didn’t leave and he shot him.”
There was evidence that the back of a chair had been broken off when Oliver and Willie Jones scuffed. On cross examination Wood testified:
“At the police station Enoch told him the reason he shot the man was because he had been causing a disturbance, broke up furniture; that he had a knife in his hand and he wasn’t going to let him get close to him to cut him
After investigation by the police on the night in question the defendant was released to go home. He was not arrested until later when charges were filed.
In 40 C. J. S., Homicide, § 42, pp. 902, 903, the following is stated concerning “heat of passion”:
“With few exceptions, an intentional homicide may be reduced from murder to manslaughter only where it was committed in a sudden heat of passion caused by adequate provocation. The requisite passion may be the result of rage, anger, fright, or tenor, and must be of such a degree as toould cause an oi'dinary man to act on impulse and without reflection.
“The passion ordinarily required to reduce a killing to the grade of manslaughter is that created by rage or anger. However, the passion may be one resulting from other conditions of the mind rendering it incapable of cool reflection, such as fright or tenor.” (Emphasis added.)
“Heat of passion” is otherwise defined in 26 Am. Jur., Homicide, § 44, p. 189, as follows:
“. . . Voluntary manslaughter is characterized by the doing of the act under the influence of sudden passion without malice. The passion which characterizes voluntary manslaughter does- not consist in settled hatred or anything nearly akin thereto; on the contrary, it must be of sudden development. Passion is not limited to rage, anger, or resentment. It may be the emotion expressed by the terms ‘fear,’ ‘terror,’ or, according to some decisions, ‘excitement’ or ‘nervousness.’ This emotional state, however, it may be expressed, must actually have dominated the slayer at the time of the homicidal act, and it must have been entertained toward the person slain, and not toward another.”
The court in State v. Linville, supra, reasoned that the prerequisites for ‘Teat of passion” were not there present when it said:
“. , . The record before us discloses that the defendant Linville and the deceased Lanferman had been friends. There was no evidence of an altercation or angry controversy, die usual concomitants of that degree of emo tional excitement known as ‘heat of passion.’ . . . -There was nothing in the demeanor of the defendant to indicate he was acting in the.heat of passion in the expulsion of Lanferman . . .” (p. 145.) (Emphasis added.)
Upon the foregoing evidence in the instant case the jury was within its province in finding the defendant guilty of manslaughter in the third degree — that the defendant had killed Oliver in the heat of passion. It was only one minute between the phone call by the defendant reporting trouble at his tavern and the phone call in which he reported that Oliver had been shot and killed. A disturbance was caused by Oliver which necessitated calling the police; furniture had been broken; Oliver defied the defendant’s orders to get out of the tavern and the defendant wanted to continue doing business; an altercation took place between Oliver and the defendant in which profane language was used by Oliver to describe the defendant who owned the business; and Oliver approached with a knife in his haiid in such a manner as to indicate that he was going around the east end of the bar to attack the defendant who was behind the bar, a course which would have required Oliver to travel approximately twenty more feet before reaching the defendant.
Upon all the evidence the jury was justified in finding an emotional state of mind, described as “heat of passion,” dominated the defendant at the time of the homicidal act. It could be said this emotional state of mind was manifested by fear or terror mixed with anger or resentment of such a degree as to cause an ordinary man to act on impulse and without reflection.
While we may not agree with the finding of the jury, upon reviewing the evidence from the cold printed record as we must, nevertheless, to hold as a matter of law the defendant’s act in killing Oliver was justifiable or excusable, upon all the facts and circumstances here presented, would invade the province of the jury. The jury heard the witnesses, testify, observed the manner in which they testified and observed their conduct and demeanor, particularly that of the defendant. By reason thereof the jury .was far better qualified to formulate a proper basis for weighing the evidence and resolving the issue of self defense.
In conclusion it follows that the trial court did not err in overruling the defendant’s motion to dismiss the charge of manslaughter in the third degree or in submitting an instruction, on such charge to the jury. The verdict of the jury was neither con-0 trary to the law nor to the evidence. The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an action by a school teacher, who was dismissed before his term of employment expired, to recover salary from the school district for the portion of the term remaining after dismissal. A demurrer to the petition on the ground it fails to state facts sufficient to constitute a cause of action was sustained, and plaintiff has appealed.
On April 5, 1957, the contract of employment was entered into. By its terms plaintiff was employed as a teacher for the nine-months term beginning on August 28, 1957. The contract provided that it “shall continue in full force and effect during good behavior and efficient and competent service of the teacher . . .” Plaintiff entered upon his work as a teacher and was paid his monthly salary.
On February 3, 1958, pursuant to a meeting of the school board, plaintiff was discharged. He was notified of this action by a letter of that date from the director of the board. The body of this letter reads:
“A special meeting of the Latham School Boards was held this morning in regard to discussing your past actions, and statements made by you in your capacity as Superintendent of the Latham Schools.
“After a thorough discussion of this problem it was decided by a vote of 4 to 0 that you be discharged from your duties as Superintendent of Schools of Latham, Kansas, as of this date.
“You are hereby officially notified of your discharge and of the termination of your contract with this board, all as provided for by law.”
Twelve days later, on February 15, 1958, this action to recover plaintiff's salary for the remainder of the school term was filed and, as heretofore related, the appeal is from an order sustaining a demurrer to the petition.
Material portions of the statute (G. S. 1957 Supp. 72-1028) applicable to the situation presented read:
“The school board of each common-school district shall maintain the schoolhouse in good repair, shall keep it a clean, comfortable and healthful place for the purpose for which it is intended; shall contract and hire qualified teachers for and in the name of the district, which contract shall be in writing, and shall specify the wages agreed upon and shall be filed with the district clerk. Such contract may be made at any time after February 1 for the succeeding school year, subject to the annual school meeting voting to maintain school for such year, and subject to the adoption of a sufficient budget. The school board may dismiss the teacher for cause. Any teacher so dismissed by the board shall have and is hereby granted the right to appeal to the county superintendent within ten days after such dismissal and the decision of the county superintendent on such appeal shall be final. . . .” (Emphasis supplied. )
The petition contains no allegation that plaintiff pursued the procedure provided by the statute — namely, appeal to the county superintendent, and it is not contended that he did pursue such remedy.
In this court plaintiff makes two contentions, one of which is that the statute in question is unconstitutional in that the subject matter thereof is not clearly expressed in its title as required by Art. 2, Sec. 16, of our Constitution, and cites State, ex rel., v. Kirchner, 182 Kan. 622, 322 P. 2d 759.
A short answer to this contention is that the question was neither pleaded nor raised in the court below and therefore is not before this court on appeal. (Board of County Commissioners v. Brown, 183 Kan. 19, 325 P. 2d 382, syl. 2.)
Thp petition alleges that no cause for dismissal has been shown and that plaintiff is unaware of any cause, and that “there is no just cause for such dismissal.” Plaintiff contends the demurrer thus admits this allegation and therefore his petition states a cause of action because the statute provides that dismissal may be had only for cause.
The point is not well taken.
In the first place, it is readily apparent from the letter of dismissal that plaintiff’s contract was terminated due to his past actions and statements made by him in his capacity as superintendent of the school. The allegation that “there is no just cause for such dismissal” amounts to nothing more than a conclusion. The rule is that a demurrer never admits naked conclusions but only facts well pleaded. (Johnson v. City of Galena, 163 Kan. 713, 186 P. 2d 96, syl. 4. See also Hatcher’s Kansas Digest, Pleading, § 155.)
We are not concerned here with the ultimate rights and liabilities of the parties to this action. (Patrick v. School District, 100 Kan. 569, 572, 164 Pac. 1172; Morris v. School District, 139 Kan. 268, 30 P. 2d 1094; Cook v. School District, 143 Kan. 532, 56 P. 2d 66.) The question presented is whether this petition states a cause of action, and we feel compelled to hold that it does not. By enactment of the statute in question the legislature has provided that a school board may dismiss a teacher for cause and that any teacher so dismissed shall have and is granted the right to appeal such dismissal to the county superintendent within ten days. As a practical matter it may be said that the provisions of the statute become a part of the contract of hiring. The petition does not allege that plaintiff pursued the administrative remedy provided by the statute, and the demurrer was properly sustained.
The judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This is a workmen’s compensation case. The principal question presented is whether the injury and disability sustained by the workman and found to exist, is covered by the provisions of the Workmen’s Compensation Act. The workmen’s compensation commissioner made findings of fact and denied an award of compensation. Upon appeal to the district court, the findings and conclusions of the commissioner were adopted and affirmed in all respects.
Dana E. Dorst, the injured workman, is the appellant and crossappellee and will be referred to as the claimant. The appellees and cross-appellants are the city of Chanute, referred to as the city, and the United States Fidelity & Guaranty Company, referred to as the insurance carrier.
The findings and conclusions of the workmens compensation commissioner, omitting the caption, appearances, stipulations, and summary of the evidence, which were adopted by the district court, are as follows:
“It is found, in addition to the admissions and stipulations of the parties that: (1) the claimant herein was employed for the City Fire Department and he was asked to assist in the filling of certain fire extinguishers in the City of Chanute; (2) that he was injured on April 4, 1957, by accident, and as a result of that accidental injury he has been and is presently temporarily totally disabled; (3) that his average weekly wage was $80.40 (16.08 x 5).
“The City of Chanute filed an election to come under the Workmen’s Compensation Act of Kansas, which election was filed on May 17, 1939; said election, not having been withdrawn, is presently in effect. The election which was filed specifically enumerated and outlined the operations which were to be included in said election.
“Section 44-505 of the General Statutes of Kansas, 1949, provides that any city shall have the power to designate the employees of which of its departments are to accept the provisions of the Act. The City in this case has clearly fulfilled the requirement of the statute. Nowhere in the election was the fire department mentioned. The claimant’s position is that he was an employee of the city, and under the election would be included in the specific item which provides for coverage of municipal, township, county, or state employees N. O. C. (not otherwise classified).
“It appears to the Commissioner that it was not the intent of this election to cover all employees of the City, or there would have been no reason to have specifically listed operations which were to be included, and the election would merely have read, ‘City of Chanute — all employees.’ The fire department, being a large department of the City, would have had a separate classification and would not have been included in the general catch-all listing just discussed.
“There is no liability for workmen’s compensation unless the City has elected that coverage. The Commissioner finds that it did not elect coverage for the fire department and that this employee was an employee of the fire department and hence, not an employee of the City and covered under the Workmen’s Compensation Act. To give this claimant coverage under these circumstances would be to nullify the effect of the statute, whereas the statute has given cities and counties the right to designate those employees that they desire to be covered by workmen’s compensation insurance. It is found, therefore, that an award of compensation should be denied for the reasons discussed.”
The essential facts upon which the commissioner made his findings and conclusions are not in dispute. The pertinent portions are summarized: For many years the city has operated under the City-Manager Plan of government (G. S. 1949, 12-1001, et seq.) and was so operating at the time of the claimant’s injury.
The fire department of the city consists of a fire chief and ten regular firemen who are employees of the city. The ten firemen are divided into two shifts of five men each. Each shift is on duty twenty-four hours and off duty twenty-four hours. The fire department has fourteen men listed as auxiliary or volunteer firemen for emergency service, of which the claimant was one.
For many years it has been the annual practice of the fire department to offer its service in checking, filling and repairing fire extinguishers of merchants and residents of the city. A minimum service charge of $1 was made for servicing each extinguisher and additional charges were made according to the service rendered. The day selected for the service was publicized by a news article in the Chanute newspaper advising the day the service would be available. The city officials were aware of this annual service and that a charge was being made. No one was required to accept the service, but it was made available to reduce fire hazards to business properties and homes.
The fire extinguishers were picked up by off-duty firemen using a truck owned by the city and were brought to the fire station where they were serviced by the on-duty firemen under the supervision of the fire chief. After the extinguishers were serviced, they were replaced on the city truck and returned by the off-duty firemen to the owners. A list of customers was kept from year to year by the fire chief and this list was used by the driver of the truck who collected the cash and checks from the owners in payment for the service. Chemicals and needed supplies were purchased from the city and it was reimbursed from funds collected; the balance of the money was then divided by the fire chief among the ten firemen and himself in eleven equal amounts. No part of the money collected was ever paid to the city treasurer.
On April 3, 1957, the claimant was'visiting the firemen at the fire station. Claimant testified the fire chief said, “Well, the boys are going to have their annual pickup of fire extinguishers tomorrow. You can carry a fire extinguisher, can you not?” Claimant said, “Yes, sir,” and the fire chief said, “How would you like to help the boys and pick up a little change?” Claimant said, “That would be fine.” The fire chief testified, “I said he could take my place because I don’t want to climb the stairs. I explained that we pay for the chemicals out of what we take in and then divide eleven ways.” The claimant further testified, “No one represented to me that I was being employed by the City of Chanute in performing this service.”
The following morning the claimant reported for work at the fire station. A pick-up truck owned by the city park department was used to pick up and deliver fire extinguishers. As in the past, the fire extinguishers were brought to the fire station which is located in the Municipal Building, where the needed service and repairs were performed. ■ During the day some 120 fire extinguishers were serviced and returned to their owners. The fireman driving the truck collected cash and checks for- the service, which he turned over to the fire chief. Checks were payable to “Chanute Fire Department,” or to “Fire Department,” and were endorsed by C. W. Brennan, the fire chief, “Chanute Fire Department, C. W. Brennan.” No refund was made in 1957 for chemicals used, and the fire chief divided the money received on April 4, 1957, in eleven equal amounts of $16.08 and paid that amount to the ten on and off-duty firemen and the claimant. The fire chief did not participate in the distribution.
About 4:30 p. m. on April 4, 1957, while returning from a delivery of fire extinguishers the claimant was riding in the back of the pickup truck. As the truck pulled up to park at the fire station, claimant attempted to step backward off the back end while it was still moving. As he stepped back he lost his balance and was thrown to the concrete pavement. He was rendered unconscious and received serious injuries to his back and head.
Although the city had notice of claimant’s injury and he made written claim for compensation within the time prescribed, neither the city nor the insurance carrier has paid any compensation or medical expense.
In view of conclusions hereafter announced, it is unnecessary that we discuss and decide claimant’s principal contention that, since the trial court found the relationship of employer and employee to exist between him and the fire department — an agency of the city, he received personal injury while engaged in work of a proprietary function of the city, and for that reason the city is liable under the act notwithstanding it had excluded employees of the fire department when electing to come under the provisions of the act.
We turn to the city’s and the insurance carrier’s cross-appeal wherein they assert there was no substantial evidence to sustain the findings of the trial court that the claimant was an employee of the fire department at the time of his accident. Whether findings of fact made by a trial court are supported by substantial evidence is a question o£ law as distinguished from a question of fact (Pinkston v. Rice Motor Co., 180 Kan. 295, 299, 303 P. 2d 197, and cases cited therein).
It has been repeatedly held that the liability of an employer to his employee under the act is a liability arising on contract (Baker v. St. Louis Smelting & Refining Co., 145 Kan. 273, 280, 65 P. 2d 284; Leslie V. Reynolds, 179 Kan. 422, 427, 295 P. 2d 1076), and it is essential that the accident which causes injury to a workman arise “out of’ and “in the course of” the employment (G. S. 1949, 44-501). These terms are used in the conjunctive and both conditions must exist (Rush v. Empire Oil & Refining Co., 140 Kan. 198, 34 P. 2d 542). The term “workman” is defined in G. S. 1949, 44-508 (i) as follows:
“ ‘Workman’ means any person who has entered into the employment of or works under contract of service or apprenticeship with an employer. . . .” (Emphasis supplied.)
Did the claimant’s injuries arise out of and in the course of his employment with the city? In other words, was the claimant an employee of the city to render it liable under the act? We think not. The city was operating under the City-Manager Plan of government (G. S. 1949, 12-1001, et seq.). That act provides an all-inclusive, comprehensive, general plan for carrying on the government of the city. Under that act the city commissioners are directed to appoint a city manager who is responsible for the efficient administration of the city’s business, and who holds his office at the pleasure of the commissioners (G. S. 1949, 12-1011). The duties and functions of the city manager are provided in G. S. 1949, 12-1014, which reads in part:
“The manager shall be responsible for the administration of all of the affairs of the city. He shall see that the laws and ordinances are enforced. He shall appoint and remove all heads of departments, and all subordinate officers and employees of the city. All appointments shall be made upon merit and fitness alone. . . .” (Emphasis supplied.)
The statute was construed in Piper v. City of Wichita, 174 Kan. 590, 258 P. 2d 253. That was an action in mandamus to compel the city manager and the chief of the fire department of the City of Wichita to restore to service a fireman whom the city manager had discharged. It was held the city was operating its fire department pursuant to the provisions of G. S. 1949, 12-1001, et seq., the City-Manager Plan, and not pursuant to G. S. 1949, 13-701, and that the action of the city manager in dismissing the plaintiff was not unlawful or in violation of his rights. It was further held:
“In an action such as that described in the first paragraph of the syllabus, it is held, the city manager has authority to appoint and remove all heads of departments and all subordinate officers and employees of the city.” (Syl. 14.)
In the opinion it was said:
“G. S. 1949, 12-1014, clearly provides that the city manager shall appoint and remove all heads of departments and all subordinate officers and employees of the city. It makes him responsible for the discipline of all appointive officers. Thus he by the statute is responsible for the administration of all the affairs of the city. This clearly includes personnel matters.” (1. c. 597.) (Emphasis supplied.)
In the instant case, the city manager testified that during 1957 he did not appoint, engage or hire claimant to work in any capacity for the city and that he did not delegate or attempt to delegate authority to anyone to hire him to work for the city; further, that what money the firemen collected and distributed, and which fire extinguishers they filled, was their own responsibility and the city had no part of it. The claimant testified he did not at any time prior to his injury discuss with the city manager about the work of picking up fire extinguishers; that no one told or represented to him that he was being employed by the city to perform the service. The testimony further disclosed that no employees were hired for the city, not even casual workers to shovel snow, until the city manager authorized and approved the employment. Furthermore, there was no employment record of claimant in the city’s files.
While opposite conclusions may be reached, the divergence of opinion is due, not to any change of fact but to varying concepts as to what in law makes a person an employee of a city of the second class operating under a City-Manager Plan of government. Under that plan the city manager is the only person who could have employed the claimant as an employee of the city (G. S. 1949,12-1014; Piper v. City of Wichita, supra).
Although the essential facts are undisputed, it is only by the application of established legal principles and the statutes to those facts that a conclusion can be reached as to whether the claimant sustained the relationship of an employee of the city of Chanute and hence, was an employee of the fire department. That being the case — there being no dispute of the essential facts — it is clearly a question of law. We think it clear that, in view of the record before .us, the relationship of employer and employee did not exist between the claimant and the city. Consequently, his injury did not arise out of and in the course of employment and was not covered by the provisions of the Workmen’s Compensation Act.
Other points have been raised by the claimant, but in viéw of the conclusion just announced, it is unnecessary to discuss and decide them.
The judgment of the trial court is affirmed as to the result of denying claimant an award under the Workmen’s Compensation Act, and is reversed as to the finding that the claimant was an employee of the fire department at the time of his accident.
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The opinion of -the court was delivered by
Prager, J.:
This is an action to recover medical expense benefits under a group policy of health and accident insurance. The plaintiff-appellee is Robert Steele, Jr. He will be referred to in this opinion as plaintiff or Steele. The defendant-appellant is General American Life Insurance Company, Inc. We will refer to it as General American or the defendant.
The facts in this case as found by the district court were essentially as follows: General American issued a group health and accident insurance policy to Cherokee South Development Company, Inc. for the benefit of its employees. The policy provided coverage for medical expenses incurred by reason of accidental injury suffered by covered employees and their dependents. The plaintiff’s wife, Roberta Steele, was a covered employee of Cherokee South at the time the plaintiff suffered the injuries involved here. Plaintiff himself was not an employee of Cherokee South but it is undisputed that he was a dependent of an employee and was protected under the group insurance contract. The plaintiff was injured as a result of a “family argument” between plaintiff and Roberta on February 2, 1971. The evidence as to what happened is somewhat conflicting. It is undisputed that during the course of the argument Roberta shot the plaintiff three times. Roberta in her first statement to the police stated that her husband was in the act of assaulting her. Her later statements and her testimony in court, however, were that the plaintiff was reprimanding her son and she thought he was going to hurt the boy. She further testified that the plaintiff had never struck her and did not do so on this occasion. The plaintiff’s version of the affair was consistent from the beginning. He testified that he was reprimanding her son who had become involved in the argument and was threatening to strike the plaintiff. Plaintiff knocked the boy to the floor, put his foot on his chest to hold him in place and was telling him never to do that again when the shots were fired. It is clear that plaintiff and Roberta had had prior arguments and disputes. Neither of the parties had ever used a weapon on prior occasions and plaintiff had no weapon on this afternoon. It is clear that Roberta became upset and excited, went to her room and returned with the gun. Roberta shot the plaintiff once in the arm, once in the chest, and twice in the abdomen. Plaintiff had no warning that defendant had a gun and was going to shoot. In fact, according to plaintiff’s testimony, he did not know there was a gun in the house at the time. After the shooting plaintiff was taken to Bethany Hospital where he was provided medical treatment.
Following the completion of his medical care the plaintiff submitted a claim for his expenses to Blue Cross which provided medical coverage to plaintiff at his place of employment. Plaintiff’s medical expenses were in the total amount of $2,524.20 of which all but $237 was paid by Blue Cross. Plaintiff then made claim against General American under its group policy for the balance of the medical expenses unpaid. General American refused to pay for three stated reasons:
(1) Plaintiff was not the proper party to claim benefits under the policy;
(2) The medical expenses were not incurred as a result of an accidental injury; and
(3) Plaintiff incurred the medical expenses as a result of inj'uries sustained in the commission of an assault.
General American further took the position that in no event would the plaintiff be entitled to recover more than the balance of medical expenses over and above those paid by Blue Cross since the “coordination of benefits” provision of the policy did not permit the plaintiff a double recovery from both Blue Cross and General American for the same medical charges. Plaintiff sought the help of the Kansas insurance commissioner who wrote General American suggesting that it pay the balance of plaintiff’s medical expenses. General American refused to pay. Plaintiff finally sought the assistance of counsel and, after another refusal to pay, filed this action in the magistrate court of Wyandotte county seeking judgment against General American in the amount of $2,524.20 plus reasonable attorney fees. General American filed a motion to dismiss on the grounds that plaintiff was not the proper party plaintiff in the case on the theory that only Roberta Steele, the employee of the group policyholder, could bring suit. This motion was sustained and the plaintiff was allowed ten days to substitute the proper party. The plaintiff appealed the decision to the district court. After overruling a motion for summary judgment filed by General American, the district court tried the case on the merits without a jury. The trial court found in favor of the plaintiff in the amount of $237, the balance of the medical expenses not paid by Blue Cross. In addition the trial court awarded the plaintiff $500 as attorney fees. General American filed an appeal and the plaintiff, Robert Steele, Jr., filed a cross-appeal.
On the appeal General American contends in its first point that since plaintiff was not an employee of Cherokee South, he was not entitled to payment of benefits ixnder the contract and therefore was not the real party in interest entitled to maintain the action. The trial court found that Mrs. Steele had signed appropriate claim forms covering the claims of the anesthetist and the hospital and authorizing General American to pay the amounts due directly to them. It further found that General American refused to pay Roberta Steele, or the claimant, or anyone. It was the opinion of the trial court that Mr. Steele as a designated insured under the terms of the policy was entitled to maintain the action. Although it is clear that Robert Steele, Jr. was not an employee of Cherokee South, it is equally clear that as the spouse of an employee he is designated in the policy as an insured dependent under his wife’s insurance coverage. The group policy provided “personal insurance” to the employees themselves and in addition “dependent insurance” to cover the dependents of an employee. The policy states that an “eligible dependent” includes the lawful spouse of the employee. An “insured individual” is defined in the definition section of the group policy as follows:
‘insured individual’ means as to any particular insurance coverage or benefit only an employee, or any dependent of such employee, insured in accordance with the terms and conditions of this policy for that particular insurance coverage or benefit as provided in the Insurance Schedule.” (Emphasis supplied.)
The premium charged for coverage of both an employee and a spouse is slightly more than twice the premium charged where the employee is insured alone. In view of these provisions it cannot be denied that the plaintiff, Robert Steele, Jr., as the spouse of Roberta Steele was an “insured” under the policy and entitled to its protection. The question raised is whether Robert Steele, Jr., as an insured dependent is entitled to make a claim in his own right. General American takes the position that only the employee, Roberta Steele, was entitled to payment of benefits and therefore only she as an employee may bring the action. General American relies upon the payment of claims provision of the group policy which states as follows:
“PAYMENT OF CLAIMS
“All benefits provided by this policy other than a benefit for accidental death, if any, are payable to the employee, subject to any assignment of benefits in writing by the employee satisfactory to the Company . . .”
General American reasons as follows: Plaintiff was not an employee of Cherokee South; there was no evidence of an assignment of benefits to him by the employee, Roberta Steele; the policy is clear and unambiguous in stating that if benefits are due, only the employee, Roberta Steele, or her assignee is entitled to payment. Hence, it concludes, Robert Steele, Jr. is not entitled to benefits and hence cannot maintain the action.
The trial court in holding that plaintiff, Robert Steele, Jr., could maintain an action under the policy did so on the basis that he was an insured within the terms of the policy or in the alternative was entitled to maintain the action as a third-party beneficiary. In our judgment the issue was correctly decided by the trial court. The group policy of General American is to be construed in accordance with Kansas law. Once it was established that the plaintiff was an “insured” under the terms of the policy, his right to make a claim and to bring an action for medical expenses incurred by him is clear. In our judgment the payment of claims provision quoted .above should be interpreted in the light of the fact that under the group policy the policyholder is stated to be Cherokee South Development Company, Inc. and not its employees. The provision for payment of benefits to employees rather than to the policyholder is obviously included in the policy to make it clear that benefits are not payable to the employer as the policyholder but to its employees and their dependents who are provided insurance coverage by the policy. This conclusion must reasonably follow in view of 'the fact that separate insurance coverage designated “dependent insurance” is provided under the policy and dependents are specifically designated as insured .individuals under the policy. In any event a dependent of an employee would at the very least stand in the position of a third-party beneficiary under the contract. Under Kansas decisions a third-party beneficiary may maintain an action to enforce a oontract made for his benefit. (Keith v. Schiefen-Stockham Insurance Agency, Inc., 209 Kan. 537, 498 P. 2d 265; Millers Nat’l Ins. Co. v. Bunds, 158 Kan. 662, 149 P. 2d 350; and Lindesmith v. Republic Mutual Fire Ins. Co., 189 Kan. 201, 368 P. 2d 35.) In Lindesmith we held that the son of a policyholder who owned a family combination insurance policy was a proper party plaintiff to bring an action on the policy since the son was an insured and entitled to protection under the family policy. Here since the plaintiff, Robert Steele, Jr., is an insured protected by the policy and has incurred medical expenses, he has a right to make claim under the provisions of the policy and to bring an action to enforce his rights thereunder.
General American in its seoond point takes the position that the trial court erred because the evidence established that the plaintiff incurred all his medical expenses as a result of injury sustained while he was committing an assault. General American relies on the exclusion section of the contract which states in pertinent part as follows:
“Benefits shall not be payable under the Medical Care Insurance coverage provided by this policy for or in connection with
(5) injury . . . resulting from participation in, or in consequence of having participated in, . . . the commission of an assault or a felony; . . .” (Emphasis supplied.)
In support of its position General American argues that the undisputed evidence shows that the plaintiff was the aggressor and that he had assaulted his wife and had his foot on his son’s chest holding him on the floor at the time plaintiff was shot. Since his injuries were received during the commission of an assault, plaintiff should be barred from recovering benefits under the exclusion in the policy set forth above. Such exclusionary clauses tvhich relieve the insurer from liability or responsibility for bodily injuries resulting from an assault are quite common in health and accident insurance policies. Certain general rules have become established for construing the assault limitation. The general rule to be applied in construing such clauses is stated in an annotation in 86 A. L. R. 2d 443 to be as follows:
“In the majority of cases where a clause in an insurance policy limits, or relieves the insurer from, liability for injuries or death resulting from an 'assault/ the courts have held that the assault by the insured must be more than a 'simple assault/ generally stating that it must be such an assault as would justify the person assaulted in taking the insured’s life. Or, as some courts have put it, an assault which would relieve the insurer from liability must have been such that the insured could reasonably have anticipated that his action would result in bodily injury or death to himself.” (pp. 445, 446.)
There are no Kansas cases exactly in point. The cases from other jurisdictions supporting this rule of construction are set forth in the annotation.
In Couch on Insurance 2d, § 41:660, it is stated that the word “assault” as used in a life insurance policy excluding liability in case of accidental injury or death caused by participating in or in consequence of having participated in an assault, refers not to a simple assault, but to such an assault as would justify the person assaulted in taking the life of the person who assaults. The Supreme Court of Arkansas interpreted the assault exclusion in an insurance policy in the following way:
“The character of the assault contemplated by an exclusion in an accidental death policy meant more than a simple assault; it must have been of such severity ‘as would have justified the assaultee in inflicting death or serious injury by way of self-defense.’ . . . The severity of an assault is ordinarily a question for the jury.” (Gregory v. Nat’l Life & Acc. Ins., 250 Ark. 770, 467 S. W. 2d 181.)
In the present ease it was a question of fact to be determined by the trial court from the evidence whether the conduct of the plaintiff, Robert Steele, Jr., was such an assault as would justify the application of the exclusion contained in the group policy. The trial court had reason to find that in prior arguments Robert Steele, Jr., had never actually struck Roberta and that he did not strike her on the occasion when he was shot. He did not have a weapon in his possession. It does not appear that Roberta’s son was in any real danger. Apparently plaintiffs first knowledge that Roberta had a weapon came when she began shooting. Under the circumstances it is difficult to find that Roberta was justified in shooting her husband. She apparently lost her head and was angry, upset, and excited. On the evidence we cannot say that the court erred in finding that the plaintiffs conduct was never more than a simple assault and was not of a type where plaintiff could have reasonably anticipated that his actions would have resulted in bodily injury or death to himself. We hold that the trial court did not err in its finding that the assault exclusion contained in the policy was not established as a defense ft> the plaintiffs claim for medical benefits under the policy.
The next point raised on this appeal by General American is that the evidence establishes as a matter of law that plaintiff’s injuries were not the result of accidental bodily injury which had to be established by plaintiff before medical expense benefits would be payable under the group policy. The policy provided for recovery of medical expense benefits if the expenses were the result of an injury. In the general definition section it is declared that “injury” means only an accidental bodily injury. The parties agree that on this point the plaintiff had the burden of proof in the trial court. The determination of what is meant by the term “accidental bodily injury” in an insurance policy was before this court in Akins v. Illinois Bankers Life Assurance Co., 166 Kan. 648, 203 P. 2d 180. In Akins the insured and his wife were having marital difficulties. One afternoon an argument ensued in which the insured hit his wife on the head with a pop bottle; the scuffle continued and he then hit her again. The wife ran in the house and picked up a gun from a dresser. She was scared, worked up, and nervous. She fired the gun and her husband was killed. The issue presented to this court in Akins was whether 'the plaintiff-widow could recover for an accidental injury under an insurance policy. In syllabus ¶ 1 we defined accidental means as follows:
“Generally speaking ‘accidental means’ signifies a happening by chance and without intention or design, which happening is unforeseen, unexpected and unusual at the time it occurs but the term as used in accident insurance policies is not susceptible of exact definition and usually its application depends upon the facts of each particular case.”
In syllabus If 2 we stated:
“Where an insured is killed or injured in an encounter, fight or affray with another, his death is ‘effected directly and independently of all other causes through accidental means’ within the meaning of such a phrase as used in an accident insurance policy, even though he is the aggressor, if it appears from the facts disclosed by the evidence that he did not reasonably anticipate that his acts or course of conduct would result in death at the hands of his antagonist.”
The rule which we have adopted in Kansas is the settled rule throughout the United States and is followed in practically every jurisdiction where the issue has arisen. (See the annotation in 49 A. L. R. 3d 673 at 679, where the cases which have followed the rule are set forth.) We do not see any logical reason to distinguish Akins on the basis that the insured in that case was killed whereas the plaintiff here was only injured. The cases in other jurisdictions do not make such a distinction. It seems to us that the rule should be the same whether or not the insured died as the result of injuries sustained during an altercation.
The determination of whether or not an injury was an accidental bodily injury under the rule of Akins is ordinarily a question of fact to be determined from the evidence in the particular case. In connection with point two we have recited in some detail the factual circumstances under which the plaintiff was injured in this case. Suffice it to say the finding of the trial court that plaintiff could not reasonably have anticipated that he would be shot by his wife was abundantly supported by the evidence and hence it cannot be disturbed. We have concluded that the trial court did not err in finding that the medical expenses incurred by the plaintiff were the result of accidental bodily injury within the meaning of the General American group insurance policy.
The defendant’s final point on this appeal deals with the awarding of $500 attorney fees to- the plaintiff. This amount was awarded by the court pursuant to K. S. A. 40-256, which provides for payment of attorney fees in actions against insurance companies if it appears from the evidence that the company has refused without just cause or excuse to pay the full amount of such loss. General American argues that its refusal to pay in this case was not without just cause or excuse. It contends in substance that the three defenses raised in this case and discussed above were reasonable defenses and cannot be said to constitute a frivolous and unfounded denial of liability. (Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 470 P. 2d 756.) The trial court considered the issue of attorney fees as a separate issue after it had determined that General American was liable to the plaintiff under its group policy. As the basis for awarding attorney fees in this case the trial court in its memorandum letter of decision stated as follows:
“It is the defendant’s contention that its refusal to pay the claim was not ‘without just cause or excuse’ and that the court, in fact, upheld its defense as against all sums in excess of $237.00.
“The evidence in the case, however, shows that this case could have been settled long before it was ever filed by paying plaintiff’s original claim for approximately $219.00, and as early as September 15, 1971, the Insurance Commissioner advised defendant’s counsel as to our Supreme Court’s holding in such a case and suggested that it be settled. The defendant’s continued refusal to pay the claim at that time was, in my opinion, without just cause or excuse. It was not until January 11, 1973, after the case had reached this court and considerable time and effort was expended, that defendant offered to settle the case for $212.00.” /
In Wheeler v. Employers Mutual Casualty Co., 211 Kan. 100, 505 P. 2d 768, we said that whether there are reasonable grounds for an insurance company to contest a claim depends upon the facts and circumstances of each particular case. We held there that the insurance company had refused without just oause or excuse to pay the claim under its policy in view of the overwhelming weight of authority in support of the plaintiff’s position and our well established rules which govern the construction of insurance policies. Under all of the facts and circumstances shown in the record in this case we cannot fault the trial court in its finding that the defendant General American refused without just cause or excuse to' pay the plaintiff’s claim under its policy. We further find that an award of $500 attorney fees by the trial court was reasonable.
There remains for determination the cross-appeal filed on behalf of the plaintiff, Robert Steele, Jr. The basis of the cross-appeal is that the trial court erred in holding that the multiple coverage limitation in the policy barred a double recovery of medical expenses by plaintiff from both Blue Cross and General American. The multiple coverage limitation in the policy was as follows:
“If any person covered under this policy is also covered under any other Plan . . . and is entitled to benefits or services as to medical care . . . for which benefits are payable under this policy, the benefits otherwise payable under this policy shall be adjusted to the extent hereinafter provided if required by the terms of this provision so as to take account of the benefits or services under such other Plan.”
The plaintiff maintains that this provision in the policy is invalid by reason of K. S. A. 1973 Supp. 40-2203 which he contends is applicable to a group policy of insurance as defined in K. S. A. 40-2209. This exaot point was raised in Gibson v. Metropolitan Life Ins. Co., 213 Kan. 764, 518 P. 2d 442. In Gibson we held that the provisions of K. S. A. 40-2203 were not applicable to group insurance policies and that a multiple coverage limitation in a group accident and sickness policy purporting to reduce the benefits otherwise payable to an employee’s dependent having coverage under another group insurance plan, so that tibe benefits available under both coverages will not exceed the total amount of the allowable medical expenses, is not contrary to public policy. The plaintiff has attempted to distinguish Gibson from the present case. We have concluded, however, that this case is controlled by our decision in Gibson and that the multiple coverage limitation here is a valid limitation on the medical expense benefits payable under the General American policy. We have concluded that the trial court did not err in refusing the plaintiff a double recovery for the medical expenses previously paid by Blue Cross.
For the reasons set forth above the case is affirmed both on the appeal and cross-appeal.
Fontron, J., dissenting.
Fromme, J., 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
Price, J.:
This is an action to annul a marriage.
Defendant appeals from an order overruling her demurrer to plaintiff’s evidence.
Only two questions are presented.
One concerns the competency and admissibility of certain evidence admitted over, defendant’s objection. -The- other' is whether plaintiff’s evidence made out a primá-facie case sufficient to withstand the demurrer.
The action was filed on April 24, 1958. Summarized very briefly, the pleadings allege the'following: i
The petition alleges that on July 2, 1951, plaintiff and defendant went through the form of a marriage ceremony in Kansas City; that on said date defendant had a husband living from whom she was not then and never has been divorced, and who is now living; that plaintiff at the time was not aware of such fact but relied on representations of defendant that she had been divorced from her former husband; that plaintiff had just recently been informed that defendant’s prior marriage had never been dissolved by divorce, or otherwise, and that his “colorable” marriage to defendant should be annulled, set aside and held for naught.
Defendant filed a verified answer in the form of a general, denial, and a cross-petition for divorce which alleges:
That on July 2, 1951, she and plaintiff were legally married by the probate judge of Wyandotte county, and that such marriage was consummated by continued cohabitation in McPherson, as husband and wife, until April 18, 1958; that she has performed all of her marital duties, but that plaintiff has been guilty of extreme cruelty and gross neglect of duty toward her; that the parties are the owners of certain described jointly-acquired property, and that she is entitled to a divorce, alimony and attorney fees.
Plaintiff filed a reply to the answer and cross-petition, which, after denying adverse matters contained in that pleading, alleges:
That defendant and one John Dupree were married and were the parents of two daughters, now adults, and that defendant and Dupree and their children were living at Cunningham at the time of their separation in the middle 1930s, at which time defendant took the two daughters to, and lived in, El Dorado; that later Dupree moved to Tulsa county, Oklahoma, and continues to reside there, and that the exact dates of the marriage of defendant to Dupree, their separation, and residences of defendant and Dupreé, axe not known to plaintiff but are well known to defendant; and that no divorce ever was granted to defendant from Dupree in the counties of Butler, Kingman or Pratt, or in Tulsa county, Oklahoma, That defendant subsequently lived with one Stout, as husband and wife,: and separated from him while so' living in The early 1940s, at Nickerson, but that plaintiff does not know, and therefore cannot state, whether defendant ever entered. into a colorable marriage with said Stout, or whether such marriage was ever annulled or dissolved. That defendant subsequently entered-into‘a colorable marriage with one Okie, who was, on June 17, 1948, granted a default divorce from defendant on the ground of abanr donment, in Harvey county. That, plaintiff has. performed all of his marital duties, but that defendant has been guilty of extreme cruelty and gross neglect of duty; that defendant had no- property of -her own af the time of the “colorable” marriage to plaintiff; that the parties have acquired no joint property during their relationship, and that plaintiff is entitled to have their marriage canceled, annulled, set aside and held for naught, or, in the alternative, that he be granted a divorce from defendant.. • •
We are told that a pretrial conference was held on September 17, 1958, but that it was so “inconclusive” that no pretrial order was made. . ,
Notwithstanding that plaintiff, in his pleadings, asked for,-a decree of divorce in the alternative, his evidence, as abstracted, W;as confined to the annulment feature of the case and was directed to .the sole propostion that defendant and Dupree had never been divorced. His evidence consisted of his own .oral testimony and five written exhibits. A brief summary of his testimony follows,: He and defendant became acquainted in 1943 at Nickerson. She was not living with Dupree at the time. Prior to and at the time of their marriage in Kansas City on July 2, 1951, he inquired in “general terms” of defendant whether she was “free” to get married — that is, whether she was divorced. - She replied in the affirmative. At no time did he ever know Dupree or his whereabouts, although once in about 1953, when he and defendant were in Tulsa, she “remarked”, something to the effect that Dupree then lived in West Tulsa. He testified that he did not know whether Dupree is living or dead, or whether he, Dupree, had ever obtained a divorce. Shortly before this action was filed defendant’s mother had made a “remark” to him which caused him to become “suspicious” that defendant and Dupree were not divorced.. ,He asked defendant about it and she told him she had divorced Dupree in El Dorado.
In addition to the oral testimony just summarized, plaintiff was permitted to introduce — over defendant’s objections — certificates of bonded abstracters in Tulsa county, Oklahoma, and in Pratt, Reno, Rutler and Kingman counties, respectively, to the effect that the records in the office of the clerk of the district court in each of those respective counties failed to disclose any divorce proceedings between defendant and Dupree.
Thereupon plaintiff rested his case.
Defendant demurred on the ground that no cause of action had been proved.
The demurrer was overruled. Defendant offered no evidence, but appealed, as was her right under the statute (G. S. 1949, 60-3302, Second).
Her specifications of error are that the court erred (1) in admitting the abstracters’ certificates in evidence, and (2) in overruling her demurrer to the evidence.
With respect to the first proposition, we believe the court erred in admitting in evidence the abstracters’ certificates. We are not concerned here with “land titles,” or the like — but rather with the claimed invalidity of the marriage of the parties on July 2, 1951, because of the alleged fact that defendant at the time was not divorced from Dupree. We realize that plaintiff was confronted with proving a “negative,” so to speak, but, nevertheless, if he desired to introduce court records there was a proper way by which to do so. Under the facts and issues presented the certificates in question were not the best evidence, were hearsay, and were erroneously admitted.
Notwithstanding — and assuming, solely for the sake of argument, that the certificates were competent evidence and were properly admitted and considered by the court — we have no difficulty in holding that plaintiff’s evidence, including the certificates, fell far short of establishing a cause of action for annulment of marriage.
Our statute (G. S. 1949, 60-1515) provides that when either of the parties to a marriage shall be incapable, from want of age or understanding, of contracting such marriage, the same may be declared yoid by the district court in an action brought by the incapable party.
It has been held that the fact the statute enumerates certain grounds for annulling a marriage does not imply that no others exist, and that district courts, indépendent of statute, have jurisdiction to entertain and adjudicate such an action under their general equity powers. (Powell v. Powell, 18 Kan. 371, 381, syl. 5, 26 Am. Rep. 774; Fuller v. Fuller, 33 Kan. 582, 7 Pac. 241; Browning v. Browning, 89 Kan. 98, 102, 130 Pac. 852, L. R. A. 1916C 737, Ann. Cas. 1914C 1288; Westerman v. Westerman, 121 Kan. 501, 503, 504, 247 Pac. 863, and In re Estate of Crump, 161 Kan. 154, 160, 166 P. 2d 684.)
The law is well settled with respect to the presumption of validity of a subsequent marriage where an attempt is made to have it annulled on the ground one of the parties thereto was not divorced from his or her spouse at the time of such subsequent marriage.
In 55 C. J. S., Marriage, § 58c., pp. 938, 939, it is said that where annulment is sought on the ground of a prior subsisting marriage, courts will not grant a decree of nullity except on the production of clear, satisfactory and convincing evidence, the reason being the peculiar nature of marriage and the grave consequences attendant on its subversion.
In 35 Am. Jur., Marriage, §§ 195, 216, 218, pp. 306, 322, 323, it is said the majority view is that a second or subsequent marriage of a person is presumed to be valid; that such presumption is stronger than gnd overcomes or rebuts the presumption of the continuance of the previous marriage, and that the burden of proving the continuance of the previous marriage, and the invalidity of the second marriage is upon the party attacking the validity of the subsequent marriage. It is further said that to overcome the presumption of validity, and to sustain the burden of proving the invalidity of a marriage every reasonable possibility of validity must be negatived, and that the evidence to overcome the presumption of validity of the subsequent marriage must be clear, strong and satisfactory, and so persuasive as to leave no room for reasonable doubt. In other words, it is said that the burden of proving that a divorce has not been granted to either party to a former marriage is substantial and is not met by proof of facts from which mere inferences may be drawn.
In the case of Routledge v. Githens (Oregon), reported at 45 A. L. R. 922, it was held that where an existing marriage is shown the presumption of its validity is so strong that proof of a former subsisting marriage, in order to be sufficient to overcome such presumption, must be so cogent and conclusive as to fairly preclude any other result.
■ See also the annotation on the subject “Second Marriage — Presumed Validity,” at 14 A. L. R. 2d 7, §§ 3, 20, 21. .
Our own decisions are in accord with the foregoing principles.
In Shepard v. Carter, 86 Kan. 125, 119 Pac. 533, 38 L. R. A. (NS) 568, it was held that the presumption of validity of a subsequent marriage is “one of the strongest known to the law, and those who seek to impeach the second marriage take upon themselves the burden of showing that the first has not been dissolved.” (pp. 130, 131.)
To the same effect is Haywood v. Nichols, 99 Kan. 138, 160 Pac. 982.
In Kinney v. Woodmen of the World, 110 Kan. 323, 203 Pac. 723, it was held that the presumption of validity of a subsequent marriage includes, if necessary, the fact of dissolution of a previous marriage, and that such presumption “cannot be overcome except by proof so cogent as to compel conviction.” (p. 326.)
See also Titus v. Titus, 151 Kan. 156, 97 P. 2d 1113, and opinion denying rehearing at 151 Kan. 824, 101 P. 2d 872.
The most that can be said of plaintiff’s evidence is that he merely had a “suspicion” that defendant and Dupree had never been divorced — apparently based on a “remark” made to him by defendant’s mother. He had never known Dupree, did not know his whereabouts, whether he was dead or alive, or whether he, Dupree had ever obtained a divorce. In fact, his testimony indicated clearly that actually he was completely “in the dark” and ignorant of the facts sought to be established. And, solely for the sake of argument, considering the abstracters’ certificates which were admitted erroneously, die most that can be said of them is that they were merely “persuasive” of the fact that defendant and Dupree had not been divorced in the several counties mentioned.
The presumption of validity of the marriage of plaintiff and defendant in July, 1951, is “one’of the strongest known to the law.” In order to overcome such presumption it was necessary that plaintiff affirmatively establish the nondissolution of defendant’s prior marriage to Dupree “by proof so cogent as to compel conviction.” If is clear that his evidence failed to meet the burden of proof required in such cases,’ and the judgment of the trial court overruling defendant’s demurrer to the evidence is reversed. | [
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The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant was convicted of one count of illegal sale of amphetamines and two counts charging unlawful sale of marijuana. The defendant was tried by a jury in the district court of Ellis county and has appealed to this court claiming trial errors.
With the exception of the testimony of a Kansas Bureau of Investigation chemist who identified the drugs, the prosecution was based solely upon the testimony of John Eckhart, a special agent of the Kansas Attorney General. In September of 1973 in the course of his employment as a special agent Eckhart was assigned to the Hays, Kansas, area for the purpose of gathering evidence and assisting in the control of alleged illegal trafficking in drugs. Eckhart, as special agent, signed the complaint which initiated the prosecution against the defendant-appellant, Roy Humphrey. At the preliminary hearing and again at the trial Eckhart testified that he first met the defendant Humphrey in a bar in Hays on September 1, 1973. Eckhart stated that later that month the two met at a party and subsequently went to defendant’s home where they smoked some marijuana and Eckhart purchased some amphetamine tablets and marijuana. Eckhart further testified that on October 2, 1973, the two again met at a bar in Hays and, at the request of Eckhart, defendant again sold him some marijuana. Eckhart further declared that the substances purchased on each occasion were tested at the KBI laboratory and were identified as amphetamines and marijuana. At the trial in district court the defendant did not testify in his own behalf. His entire defense was based upon an attack upon the credibility of Eckhart. This was done through cross-examination of Eckhart and the testimony of Eckhart’s former wife and three other acquaintances.
From the moment the case was filed counsel for the defendant attempted by appropriate motions to obtain information about Eckhart which might raise questions about Eckhart’s credibility. Counsel’s attempts to obtain such information were futile. Many of the defendant’s points of claimed error on this appeal are based upon the restrictions on discovery of information imposed by the trial court. In all there are 34 trial errors claimed on the appeal. Many of them are repetitious and go to the same basic issues. Essentially the errors claimed are in three categories:
(1) Restrictions imposed by the court on the discovery of information about John Eckhart;
(2) limitations on the introduction of evidence affecting the credibility of John Eckhart; and
(3) claimed errors in the court’s instructions.
We will first consider whether or not the trial court denied the defendant a fair trial by its pretrial orders limiting the defendant in his discovery of information adversely affecting Eckhart’s credibility.
Following the filing of the complaint signed by Eckhart, the matter was set for a preliminary hearing. Eckhart took the stand and testified regarding the purchase of amphetamines and marijuana from the defendant Humphrey. At the conclusion of the preliminary hearing on November 1, 1973, the defendant was bound over for trial in the district court. On November 8, 1973, the county at torney filed an information. It appearing that the defendant was indigent, counsel was appointed to represent him in the proceeding. On February 28, 1974, counsel moved the court for an order pursuant to K. S. A. 1973 Supp. 22-3213 for the production and delivery to defendant of all written statements, records and information regarding the background, conduct or testimony of John S. Eckhart, the witness for the prosecution at the preliminary hearing. A hearing on this motion was held on March 7, 1974. The court stated that it had a standing order which required the county attorney to make available to the defendant all records pertaining to the investigation arid all witnesses’ statements contained in the county attorney’s file. Counsel for the defendant specifically re- . quested any written statements or reports, made by John Eckhart to the attorney general as well as to the county attorney. The trial court overruled the defendant’s. motion and refused to compel the county attorney to obtain statements and reports made by Eckhart which might be under the control of the Kansas attorney general. The defendant contends on this appeal that the trial court’s ruling was in error and that in view of the fact that Eckhart was the sole and only witness relied upon by the state to prove the sale, it was crucial that defendant’s counsel have available to him any prior statements or reports made by Eckhart in the course of his employment by the attorney general.
The defendant relies upon K. S. A. 1973 Supp. 22-3213 which provides in paragraph (2):
. . After a witness called by the state has testified on direct examination, the court shall, on motion of the defendant, order the prosecution to produce any statement ... of the witness in the possession of the prosecution which relates to the subject matter as to which the witness has testified. . . .” (Emphasis supplied.)
The scope of 22-3213 was recently considered by this court in State v. Stafford, 213 Kan. 152, 515 P. 2d 769. In Stafford we held that where the government chooses to rely on a witness for proof of the essentials of a criminal charge it cannot insulate him from thorough cross-examination by any claim of governmental privilege or sovereign right to secrecy. We further held that a police officer called by the state to testify on direct examination as to facts revealed by his investigation of an alleged crime is a witness within the meaning of 22-3213 ( 2) and the defendant is entitled to the production of any statement or report made by the officer in the possession of the prosecution relating to the subject matter of the witness’ testimony. We concluded that the refusal of the magistrate and the trial court to compel production of the statement of the police officer was reversible error.
The additional question presented in this case is whether or not the right of the defendant to disclosure of the statement under 22-3213 (2) is restricted to reports in the actual file of the county attorney and does not include statements or reports in the hands of the attorney general or other state law enforcement agencies. In our judgment the trial court erred in its refusal to require the county attorney to produce any statements or reports of special agent Eckhart which might have been made to the attorney general which involved the subject matter of his testimony at the preliminary hearing. The Kansas Code of Criminal Procedure by the provisions of 22-2103 declares that it is intended to provide for the just determination of every criminal proceeding. Its provisions shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay. In view of these stated purposes it is clear that the discovery provisions under the criminal code should be liberally construed arid the scope of discovery should be as full and complete as is reasonably possible under the circumstances. The American Bar Association Standards for Criminal Justice relating to Discovery and Procedure Before Trial provide as follows:
“1.2 Scope of discovery.
“In order to provide adequate information for informed pleas, expedite trials, minimize surprise, afford opportunity for effective cross-examination, and meet the requirements of due process, discovery prior to trial should be as full and free as possible consistent with protection of persons, effective law enforcement, the adversary system, and national security.”
Standard 2.1 requires the prosecuting attorney to disclose to defense counsel material and information including relevant written! or recorded statements of witnesses whom the prosecuting attorney intends to call as witnesses. Standard 2.4 covers situations, where discoverable material is not at the time in the possession of the prosecuting attorney but which is in the possession or control of other governmental personnel. Standard 2.4 provides as follows:
“2.4 Material held by other governmental personnel.
“Upon defense counsel’s request and designation of material or information which would be discoverable if in the possession or control of the prosecuting attorney and which is in the possession or control of other governmental personnel, the prosecuting attorney shall use diligent good faith efforts to cause such material to be made available to defense counsel; and if the prosecuting attorney’s efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court, the court shall issue suitable subpoenas or orders to cause such material to be made available to defense counsel.”
K. S. A. 22-3213 is more restrictive than the standards cited above in that the right to statements and reports of witnesses does not come into play until a state witness has testified on direct examination. However, in our judgment 22-3213 should be construed so as to require the state to provide to the defense a statement or report of a witness which relates to the subject matter about which the witness has testified, which is in the possession of the law enforcement agencies including the police, the county attorney, or the attorney general of the state of Kansas. To hold otherwise would enable a county attorney to defeat the purpose of the discovery rule by the simple process of removing statements and reports from his personal file. In view of the importance of such statements and reports in testing the credibility of a state’s witness, we believe that such a requirement will better achieve the purpose of the Kansas Code of Criminal Procedure.
Such a result is especially appropriate in the case at bar where the state’s only witness to the alleged drug sale was its special agent, John Eckhart, who in addition to being a witness was the complainant who signed the complaint upon which this prosecution was founded. We, therefore, hold that it was error for the trial corut to restrict the right of the defendant to discovery of statements or reports of John Eckhart after he had testified at the preliminary hearing to statements and reports which might at the time be in the file of the county attorney. The defendant was also entitled to a discovery of any statement or report of Eckhart which might be in the files of the attorney general.
The defendant also complains that he was denied his right of discovery by the refusal of the district court to compel the county attorney to provide to defendant’s counsel information pertaining to any criminal record of John Eckhart which might be contained in the files of the Federal Rureau of Investigation or in the National Crime Information Center. Such information would be discoverable if it is included within the ambit of K. S. A. 22-3212 ( 2) which provides as follows:
“22-3212. Discovery and inspection.
“(2) Upon motion of a defendant the court may order the prosecuting attorney to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the possession, custody or control of the prosecution upon a showing of materiality to the case and that the request is reasonable. . . .”
It should be noted that this statute places in the trial court a broad discretion to require the prosecuting attorney to disclose to the defendant documents and other tangible objects which are or have been within the possession or control of the prosecution. In order to obtain such discovery the defendant has the burden of showing the materiality of the information and that the request is reasonable.
Standard 2.1 relating to Discovery and Procedure Before Trial requires the prosecuting attorney to disclose to defense counsel any record of prior criminal convictions, of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial. In State v. Wilkins, 215 Kan. 145, 523 P. 2d 728, we emphasized the importance of the right of effective cross-examination as a part of the constitutional right of confrontation of witnesses. In the opinion Mr. Justice Fromme pointed out that the constitutional right of confrontation of witnesses means more than' being allowed to confront the witness physically for it includes the right of effective cross-examination where the credibility of a witness can be subjected to exploration to examine the weight to be given to his testimony. (State v. Montanez, 215 Kan. 67, 523 P. 2d 410.) In Wilkins we held that the defendant had the right to impeach the credibility of a state witness by the use of his juvenile records. We believe that the prosecution loses little, if anything, by making a witness’s record available to defense counsel in advance of trial if there is any chance that the witness would not have revealed a particular conviction. In all other instances knowledge of a witness’s criminal record merely puts defense counsel in the same position as the prosecution, which almost invariably has knowledge of the defendant’s record, if any.
The courts in other jurisdictions have compelled the state to disclose such criminal records where the defendant has shown that they are reasonably necessary and important in the preparation of the defendant’s case. In State v. Coney, (Fla.) 294 So. 2d 82, the Supreme Court of Florida held that a defendant may properly be allowed discovery as to the criminal records of state’s witnesses to the extent that such information is in the actual or constructive possession of the state, including data obtainable from the Federal Bureau of Investigation. The Florida court, however, stated that a prosecutor is not required to obtain criminal records of states witnesses whose testimony is not seriously subject to impeachment, such as medical experts, police officers and innocent bystanders. Obviously the rule of disclosure must be applied with reason. In Engstrom v. Superior Court, 20 C. A. 3d 240, 97 Cal. Rptr. 484, the California court of appeals pointed out that unless criminal conviction records of prosecuting witnesses are made available to the defense, the defendant would be at a great disadvantage. The prosecution has access to such records to impeach defense witnesses, but the defendant would not have equal access to criminal records. The effort required by the prosecution to obtain conviction records from the Bureau of Criminal Identification and Investigation is minimal compared with the potential value of such records to the defense. Therefore, it concluded, the prosecution should be required, on request, to obtain and make available information concerning felony convictions of prosecution witnesses.
The court of appeals of Oregon took a similar position in State v. Ireland, 500 P. 2d 1231. In that case the court held that in a prosecution for selling marijuana to a police undercover narcotics, agent, where the issue of guilt or innocence turned in large part on the credibility of the state’s chief witness, it was error not to allow the defendant time to attempt to obtain the prior criminal record of the witness. The facts in Ireland were similar to those in the case now before us.
We believe that in view of the circumstances of this case, where we have the testimony of one prosecuting witness as the sole evidence connecting the defendant with the alleged criminal activities, the credibility of the prosecuting witness presented a material issue of substantial proportion with respect to the preparation of a defense on behalf of the defendant. Such information was of vital importance and absent some good reason not shown here, justice required the trial judge to order the prosecutor to produce information pertaining to prior convictions of the prosecutor’s witness, Eckhart, for crimes involving dishonesty or false statement which would have been admissible under the provisions of K. S. A. 60-421, to impair Eckhart’s credibility. In so holding we are not refusing to recognize the broad discretion placed in the trial court by K. S. A. 22-3212. We are simply declaring that under 22-3212 the trial court should liberally grant discovery on motion of a defendant unless there is some good sound reason to deny dis covery. The norm should be for the trial court to allow discovery to the defendant. An arbitrary refusal without reason to require the prosecutor to disclose material information constitutes an abuse of discretion for the reason that such action is contrary to the purpose of the Kansas Code of Criminal Procedure and the minimum standards for criminal justice discussed above.
We do not accept the broad statement of the county attorney in his brief that the county attorney and law enforcement agencies in Ellis county cannot ordinarily obtain upon request “rap sheets” from the Federal Bureau of Investigation and information from the National Crime Information Center records pertaining to prior convictions of persons who might be called as witnesses in criminal cases. Information involving criminal convictions is collected by the attorney general of the United States under the authority of 28 U. S. C. A. § 534 which requires the attorney general to acquire, collect, classify, and preserve identification, criminal identification, crime, and other records and to exchange these records with, and for the official use of, authorized officials of the Federal Government, the states, cities and penal and other institutions. We think it obvious that it would have been a simple matter in this case for the county attorney of Ellis county to have requested from the F. B. I. or the National Crime Information Center any records pertaining to prior convictions of agent Eckhart. Any information contained in such records pertaining to prior convictions of Eckhart for crimes involving dishonesty or false statement should have been disclosed to the defense. Such information was otherwise unavailable to the defense. In the absence of some good reason why such information should not have been produced, the trial court should have ordered the prosecutor to produce it or, at the least, make a sincere effort to produce it.
Another point of error raised by the defendant is that the trial court erred in quashing his subpoena duces tecum directed to a certain doctor and the person in charge of the medical records of the High Plains Comprehensive Community Mental Health Center in Hays. The defendant by the subpoena sought to obtain information regarding the mental competency of the state’s witness, John Eckhart, and also information which might affect his credibility as a witness. On February 26, 1974, counsel for the defendant issued a praecipe for a subpoena duces tecum to require Dr. John Cody and Mrs. Judith Caprez of Hays, Kansas, to bring with them to district court all records of the mental health center pertaining to the care, confinement, and treatment of John Eckhart. The state moved to quash the subpoena duces tecum. The basis of the motion to quash was that the records were confidential and had no bearing on the issues involved in the case. In addition Dr. Cody and Mrs. Caprez filed an answer to the defendant’s subpoena duces tecum alleging that all information requested in the motion was of a confidential nature and that they should not be required to divulge the same. At the hearing defendant’s counsel stated to the court that he had information that John Eckhart had been diagnosed at the center as á psychopath and a pathological liar and that he had further information that Eckhart had been diagnosed as a schizophrenic at a Veteran’s Administration hospital. Defendant’s counsel took the position that defendant had a constitutional right to the compulsory service of process and that the physician-patient privilege had no application in a criminal prosecution for a felony. The county attorney strongly objected to the disclosure of the information. The court refused to permit defense counsel to inspect the medical records, sustained the state’s motion to quash the subpoena, and upheld the answer of Dr. Cody and Mrs. Caprez refusing production of. the documents. On this appeal the defendant maintains that he was denied his constitutional right to compulsory process and also his statutory right to the use of subpoenas to obtain the attendance of witnesses under the provisions of K. S. A. 1972 Supp. 22-3214.
In our judgment the trial court committed prejudicial error in denying to the defendant his right to issue a subpoena duces tecum and to examine the medical records pertaining to John Eckhart. We want to make it clear, however, that we do not pass upon the question of the admissibility of such records. The records are not before us and we have no idea whether such medioal records would have been admissible at the trial of the case. K. S. A. 1972 Supp. 22-3214 declares categorically that any person charged with a crime shall be entitled to the use of subpoenas and other compulsory process to obtain the attendance of witnesses. The accused’s constitutional right to compulsory process to compel the attendance of witnesses was recognized in this state in 1879. (State v. Roark, 23 Kan. 147.) In Washington v. Texas, 388 U. S. 14, 18 L. Ed. 2d 1019, 87 S. Ct. 1920, the Supreme Court of the United States held that the right of an accused to have compulsory process for obtaining witnesses in his favor, guaranteed in federal trials by the Sixth Amendment, is so fundamental and essential to a fair trial that it is incorporated in the due process clause of the Fourteenth Amendment, so as to be applicable in state trials. In this regard Mr. Chief Justice Warren stated as follows:
“The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense. This right is a fundamental element of due process of law.” (p. 19.)
In our recent decision of State v. Gress, 210 Kan. 850, 504 P. 2d 256, this court held that in a criminal action the defendant has not only the right to compulsory process for obtaining witnesses to- testify in his behalf but also the right, either personally or by attorney, to ascertain what their testimony will be. The right to compulsory process would be meaningless unless defense counsel could determine in advance of trial information relevant to the case held by prospective witnesses. Furthermore K. S. A. 60-407 provides specifically that except as otherwise provided by statute no1 person has a privilege to refuse to be a witness or has a privilege to refuse to disclose any matter or to produce any object or writing. In other words in the absence of a statutory privilege a witness must appear in response to a subpoena and make available the subpoenaed information to the defendant or his counsel. In the present case counsel for the defendant sought information to challenge the mental competency of John Eckhart to testify and further to attack his credibility. Under K. S. A. 60-407 a witness is presumed to be competent to testify. His incompetency, therefore, must be challenged and the burden of establishing incompetency rests on the challenger. (State v. Poulos, 196 Kan. 253, 263, 411 P. 2d 694, cert. den. 385 U. S. 827, 17 L. Ed. 2d 64, 87 S. Ct. 63.) Here the burden was upon the defendant to obtain and introduce information challenging the mental competency of John Eckhart to testify. Under these circumstances the defendant was entitled to compulsory process to establish Eckhart’s incompetency and to subpoena Eckhart’s medical records unless a specific statutory privilege could be shown.
In this case the trial court quashed the subpoena duces tecum and refused defense counsel’s effort to examine Eckhart’s medical records on the grounds that Eckhart had a privilege which precluded the disclosure of medical information by his doctors. In so holding the trial court was in error for two reasons: In the first place the Kansas statute which creates the physician-patient privilege specifically requires that a claim of privilege be made by the holder of the privilege or a person authorized to claim the privilege for him. (K. S. A. 1972 Supp. 60-427.) Judge Gard in his treatise on the Kansas Code of Civil Procedure, § 60-427, states that the privilege is not that of the physician. He points out that 60-427 makes no provision for the physician-patient privilege to be claimed by the physician for the benefit of the patient. There is nothing in the record to show that the witness, John Eckhart, claimed a privilege against the release of his medical records by his physicians. In addition to this the trial court erred because the defendant was charged with a felony and K. S. A. 60-427 limits the applicability of the physician-patient privilege to civil actions and misdemeanors. In State v. Campbell, 210 Kan. 265, 500 P. 2d 21, we held unequivocally that the physician-patient privilege under 60-427 does not exist in felony cases. Under the circumstances here the statutory privilege relied upon by the trial court had no application and hence the trial court erred in refusing to require the operators of the High Plains Mental Health Center to disclose Eckhart’s medical records for examination by defendant’s counsel. Here the trial court in the absence of any statutory privilege denied to the defendant his right to examine medical records which might be relevant on the issue of Eckhart’s competency to take the witness stand and which might seriously affect his credibility. Nor did the trial court retain the records for examination by this court on appeal so that the relevancy of such records could be determined. The proper procedure was for the trial court to permit counsel to examine the records and offer them into evidence either on the issue of Eckhart’s competency to testify or to attack his credibility. The trial court could then have ruled on their admissibility. By refusing to make such records available to defendant’s counsel the trial court denied to the defendant his right to compulsory process for obtaining witnesses to testify in his behalf including the right to ascertain what the testimony of the witnesses would be. This was prejudicial error.
The defendant on this appeal claims that the trial court committed reversible error in excluding evidence of specific instances of Eckhart’s misconduct offered to destroy Eckhart’s credibility. On cross-examination of Eckhart defense counsel attempted again-and-again to question him as to Eckhart’s activities involving prostitution, gambling, theft, fraudulent sale of life insurance, and other areas of misconduct. As a part of the defendant’s case-in-chief defense counsel sought to bring out on direct examination the same prior criminal activities of Eckhart. The trial court refused to permit the introduction of this testimony relying on K. S. A. 60-422 (d), which states in pertinent part as follows:
“60-422. As affecting the credibility of a witness. . . .; (d) evidence of specific instances of his conduct relevant only as tending to prove a trait of his character, shall be inadmissible.”
It has been stated that the reason for the restriction is that where character is only incidentally involved it would not be expedient to let the trial go off on collateral tangents which would result from trying out the factual issues involved in the proof of specific instances of conduct. (Gard, Kansas Code of Civil Procedure, § 60-422.) The rule does not place any limitations on the proof of reputation as evidence of character, nor does it restrain proof of character by opinion testimony. In our judgment the trial court correctly applied 60-422 in excluding evidence of specific instances of prior misconduct on the part of John Eckhart. The evidence was offered solely for the purpose of attacking his credibility, and therefore fell within the ambit of the exclusionary rule. Furthermore at the trial the defendant was afforded a full opportunity to introduce evidence as to Eckhart’s general reputation and also to present opinion testimony which attacked Eckhart’s credibility. We find no error in the rulings of the trial court under this point.
The defendant next complains that the trial court erred in failing to instruct the jury on the defense of entrapment. Here the defendant offered no evidence which showed his involvement in the sale of drugs either by his own admission or through the testimony of any of his witnesses. The refusal of the trial court to instruct on the defense of entrapment was not error. (State v. Einhorn, 213 Kan. 271, 515 P. 2d 1036.)
The defendant’s final point is that the trial court erred in failing to instruct the jury on the lesser included offense of possession of marijuana, relying on K. S. A. 1972 Supp. 21-3107 (3). The precise issue was raised and considered in State v. Woods, 214 Kan. 739, 522 P. 2d 967. There we held that possession of marijuana is not a lesser included offense in a prosecution for the unlawful sale of marijuana. The refusal of the trial court to instruct in this regard was not error.
For the reasons set forth above the judgment of the trial court is reversed and the case is remanded for a new trial with instructions to afford to the defendant his right of pretrial discovery in accordance with the views set forth in this opinion.
Fatzer, C. J. and Schroeder, J., dissenting.
Fromme, J., not participating. | [
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|
The opinion of the court was delivered by
Price, J.:
This is an action for injunctive relief. Defendants attempt to appeal from adverse rulings hereafter mentioned.
The facts as disclosed by the pleadings and written stipulation, and the procedural aspects of the case, will be summarized briefly.
Plaintiffs owned a tract of land in Lawrence and leased it to defendants who, under the terms of the written lease, were to construct a building adapted to and to be used for the washing and servicing of automobiles. The lease provided that the building was to revert to plaintiffs upon expiration thereof. Such a building was constructed by defendants and was used by them for the intended purpose for some months. The lease further provided that defendant lessees should have the right to construct any additions to such car- washing building at their own expense and to their own specifications. Defendants later obtained a building permit from the city to remodel, reconstruct and add to the building, their intention being to install and conduct therein a “launderaide” for the automatic washing and cleaning of clothes, and, pursuant to the permit, started to remodel and reconstruct the building for such purpose. Upon learning of defendants’ intentions to put the building and addition thereto to a use different than that specified in the lease, plaintiffs filed this action to enjoin them from remodeling or reconstructing the building for any use or purpose other than that of car washing and servicing.
Defendants’ demurrer to the petition on the ground it failed to state a cause of action was overruled.
Defendants then filed an answer which, after making certain denials, admitted that they had secured a building permit under which they were authorized to remodel, reconstruct and add to the building in question. It was further alleged that the lease was definite and unambiguous, and that it contained no restriction as to the use of the premises with the exception of a cafe and restaurant business.
Defendants, through one of their attorneys, and plaintiffs, by their attorney, then entered into a written stipulation which stated that defendants, under the building permit, intended to and were remodeling and reconstructing the building in question for the purpose of installing and conducting a “launderaide” for the automatic washing and cleaning of clothing. The stipulation further stated that it would be binding upon the parties only for the purpose of narrowing the issues, and that the parties were not to be precluded from offering such evidence as they deemed necessary or proper in the trial of the case.
It then appears that both plaintiffs and defendants moved the court to determíne a “question of law” in advance of trial. The court was asked to decide whether the proposed use by defendants of the property was a violation of the terms of the written lease— or, stated differently, were plaintiffs entitled to the injunctive relief sought?
On October 9, 1958, the court ruled on this question of law, the gist of such ruling being that defendants, under the terms of the lease, were not permitted to change completely the character of the original building, as heretofore related.
On November 21 defendants, through both of their attorneys, filed a motion to. set aside the' ruling on the ground that it was based upon “erroneous facts” contained in the written stipulation previously filed in that such stipulation erroneously stated that the building was being remodeled and reconstructed when, as a matter of fact, its construction “was merely being completed.”
On the same date defendants filed what is denominated as an “offer of proof by defendants in defense of plaintiffs’ action,” the. contents of which, for our purposes, need not be related.
It then appears that plaintiffs, on a date not shown, filed their motion for judgment on the pleadings and stipulation. This motion contained the further statement that if the issues were not already fully determined on the record as a question of law, then plaintiffs requested the court to set it for hearing on the question of reformation of the contract.
On November 26 .the court denied defendants’ motion to set aside the ruling of October 9th on the question of law. For present purposes, the basis of this ruling need not be related.
Oh December 8 defendants filed their notice of appeal to this court from the rulings of October 9th and November 26th, “and from each and every ruling, decision and judgment of the Court adverse to the defendants in this action.”
The specifications of error are that the court erred (1) in overruling the demurrer to the petition; (2) in- its ruling on the issue of láw before trial; (3)' in overruling defendants’ motion to set aside the ruling on the question of law; (4) in not ruling on plaintiffs’ motion to determine question of law; (5) .in not ruling on plaintiffs’ motion for judgment, and (6) in not hearing evidence in the case before making the rulings above referred to.
Under the record, we are at a loss to understand how defendants are in position to complain of the action of the court in not ruling on plaintiffs’ motions as mentioned in specifications 4 and 5, and as “to such specifications there is no merit.
A short answer to the first specification of error, concerning the ruling on the demurrer to the petition, is that defendants failed to appeal from such ruling. Other than the orders of October 9th and November 26th, the appeal is from only “each and every ruling, decision and judgment of the Court adverse to the defendants in this action.” If defendants desired to appeal from the ruling on the demurrer the notice of apjpeal should have so stated, and in this connection see Dolan Mercantile Co. v. Wholesale Grocery Subscribers, 131 Kan. 374, 380, 291 Pac. 935, (Syl. 2); Mundell v. Franse, 143 Kan. 139, 140, 53 P. 2d 811; Salt City B., L. & S. Assn v. Peterson, 145 Kan. 765, 67 P. 2d 564, (Syl. 1), and Curtis v. Kansas Bostwick Irrigation District, 182 Kan. 301, 303, 320 P. 2d 783, (Syl. 3).
With respect to the remaining specifications of error to the effect the court erred in its rulings of October 9th and November 26th, and that the court should have heard evidence before making the two rulings in question, we are forced to the conclusion that under this record and the admissions of the parties, neither of the rulings in question amounted to a final order and that this appeal must be dismissed.
In its ruling of October 9th the court took cognizance of the reservation in the written stipulation whereby the parties were not to be precluded from offering such evidence as they deemed necessary or proper in the trial of the case. The record before us is confusing and apparently incomplete as to just what transpired in the court below following the rulings which have been referred to, but the fact remains that counsel, both in oral argument and in their briefs, tell us that on March 26, 1959, the court heard evidence on plaintiffs’ motion for judgment, and that a ruling thereon is now under advisement. It appears, therefore, that neither the ruling of October 9th nor that of November 26th was an order which in effect determined the action and prevented a judgment — that is, neither was a final order as defined by G. S. 1949, 60-3303, and from which, under the preceding section of the appeal statute, an appeal may be taken.
The rule is well established that this cotut, on its own motion, has the authority and duty to determine its jurisdiction to entertain an appeal. (Curtis v. Kansas Bostwick Irrigation District, 182 Kan. 301, 302, 320 P. 2d 783, (Syl. 2).)
The appeal is dismissed. | [
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|
The opinion of the court was delivered by
Fatzer, C. J.:
This is an appeal from an order of the district court sustaining the defendant-appellee Wichita State University’s motion for summary judgment.
The appeal arises out of the crash of a chartered aircraft carrying members of the 1970 Wichita State University football team, members of the faculty and university supporters. The plaintiffs — the appellants — are either surviving passengers or the personal representatives of those killed in the crash. The chronology of events giving rise to this action follows:
On July 21,1970, an Aviation Services Agreement was exceuted by Golden Eagle Aviation, Inc., and Wichita State University for the period commencing September 11, 1970, and ending November 14, 1970 — the scheduled 1970 football season. That agreement, attached as Appendix A to this opinion, was executed by Bruce J. Danielson on behalf of Golden Eagle, and by Bert Katzenmeyer, Athletic Director of Wichita State University on behalf of that institution. It was attested to by Floyd W. Farmer, Secretary of Wichita State University Physical Education Corporation Inc.
For convenience of the reader the defendant Wichita State University is hereafter referred to as the appellee, Wichita State University, Wichita State, WSU or the University; the defendant Wichita State University Physical Education Corporation, Inc., is hereafter referred to as Physical Education Corporation or PEC.
Pursuant to the terms of the agreement, Golden Eagle was to provide a qualified flight crew and other ancillary services for the aircraft to be used by Wichita State in transporting the members of its football team and other personnel to scheduled games at other universities. Wichita State was to lease the aircraft described in the agreement as “One Douglas DC-6B” from a third party and to provide passenger liability insurance as prescribed by federal regulations.
On Friday, October 2, 1970, members of the Wichita State football party departed Wichita, Kansas, in two Martin 404 aircraft for Logan, Utah, for a football game with Utah State University scheduled for Saturday, October 3,1970.
When the Martin 404 aircraft, No. N464M, took off from Denver, Colorado, an intermediate stop, it was 2,900 pounds in excess of the allowable taking-off weight as prescribed by aircraft specifications of the Federal Aviation Administration. (1 Natl. Trans. Safety Bd., 1028 [1971].) For those aboard that plane, the journey ended in tragedy when the plane crashed into a mountainside near Silver Plume, 16 miles west of Georgetown, Colorado.
The registered owner of the plane that crashed was Jack Richards Aircraft Company, Inc. No written agreement had been executed with respect to the lease of the plane to Wichita State for this flight. Written agreements leasing aircraft of Jack Richards to Wichita State for the first two away games of the 1970 football season had been signed by Mr. Katzenmeyer on behalf of the University. Those leases had been executed prior to each flight.
Golden Eagle Aviation, Inc., and Jack Richards Aircraft Company, Inc., were organized pursuant to the corporate laws of the state of Oklahoma. As a result of an investigation into the operation of Golden Eagle occasioned'by the plane crash, Golden Eagle’s air taxi/commercial operator certificates were revoked by the Federal Aviation Administration. That revocation was sustained on appeal by the National Transportation Safety Board. (1 Nat’l. Trans. Safety Bd., 1028 [1971].)
After the plane crash, it was ascertained Wichita State had not purchased the passenger liability insurance ás required in its contract with Golden Eagle. Liability insurance requirements for air taxi operators engaged in transportation are set by regulations of the Civil Aeronautics Board. (14 C. F. R. 298.41 et seq. Subpart D.) The minimum limits of liability coverage are seventy-five thousand dollars ($75,000) for any one passenger, and for each occurrence an amount equal to the sum produced by multiplying $75,000 by seventy-five percent (75%) of the total number of passenger seats in the aircraft. (14 C. F. R. 298.42 [a] [1].)
On September 29, 1972, three separate lawsuits were filed. Each lawsuit involved multiple plaintiffs and named as defendants Wichita State University and the Wichita State University Physical Education Corporation, Inc. Prior to being taken into the state educational system on July 1, 1964, Wichita State was a municipally owned and operated educational institution known as the University of Wichita. (K. S. A. 76-3a01, et seq.) As a state educational institution, the University is an agency of the state of Kansas (K. S. A. 1971 Supp 76-711 [a], hereafter cited and referred to as K. S. A. 1974 Supp. 76-711 [a]) which is controlled by and operated under the supervision of the Board of Regents. (K. S. A. 1971 Supp. 76-712, hereafter cited and referred to as K. S. A. 1974 Supp. 76-712.)
Defendant Physical Education Corporation is a nonprofit, non-stock corporation organized under the laws of the state of Kansas. The record shows this corporation was formed to conduct the business and other transactions of the intercollegiate athletic programs of Wichita State University. During oral argument we were advised the corporation was designed to make more palatable the channeling of tax funds to support intercollegiate athletics.
In their petitions, plaintiffs alleged several causes of action which sound both in tort and contract. The tort actions are based upon theories of negligence, breach of implied and express warranty and strict liability. The contract action is based upon the third party beneficiary doctrine and relates to the failure of Wichita State to obtain liability insurance as required by the Aviation Services Agreement and pertinent federal aviation regulations. The three lawsuits were consolidated by the district court.
On December 26, 1972, defendant Wichita State moved the district court to enter summary judgment in its favor. The defendant Physical Education Corporation was not a party to that motion, nor is it a party to this appeal. Briefs were filed by the parties. Attached to Wichita State’s brief were the depositions of Dr. Clark D. Ahlberg, President of the University, and Mr. Bruce Lowe, Assistant to the President for Finance and the Business Manager of Wichita State. Following a hearing on defendant’s motion, the district court held: (1) the governmental immunity statutes, K. S. A. 46-901 et seq., were constitutional and barred plaintiffs’ tort and implied warranty claims against Wichita State, and (2) assuming for purposes of the summary judgment motion, Mr. Danielson, acting in good faith on behalf of Golden Eagle, believed Mr. Katzenmeyer to be the agent of Wichita State and authorized to enter into the Aviation Services Agreement on its behalf, the agreement was an unenforceable contract and plaintiffs could not maintain an action against the University as third party beneficiaries. From that order, plaintiffs have perfected this appeal. We reverse.
It is an established principle of contract law that a person may avail himself of a promise made by a second party to a third party for the benefit of the first party although the first was not a party to the contract and had no knowledge of it when made. (Keith v. Schiefen-Stockham Insurance Agency, Inc., 209 Kan. 537, 498 P. 2d 265; Anderson v. Rexroad, 175 Kan. 676, 266 P. 2d 320.) A valid and binding contract is essential to the right of the third party beneficiary to maintain such an action. (Cory v. Troth, 170 Kan. 50, 223 P. 2d 1008.) Wichita State concedes the plaintiffs are third party beneficiaries to the contract between Golden Eagle and its “customer.” However, the University asserts it is not the “customer” in fact or in law. As hereafter indicated, we hold that by the express terms of the Aviation Services Agreement, and disclosures thereon, the agreement is a contract between Golden Eagle Aviation and Wichita State University. Wichita State contends, however, that as applied to the University, the agreement is not a valid and binding contract. In support of that proposition, the University advances several legal theories.
The first theory advanced by Wichita State concerns its authority and the authority of Bert Katzenmeyer to enter into the agreement. Wichita State contends it did not have the approval of the Board of Regents as required by K. S. A. 1971 Supp. 76-721, hereafter cited and referred to as K. S. A. 1974 Supp. 76-721, to execute the agreement, nor did it grant Bert Katzenmeyer authority to execute the agreement on its behalf. Wichita State maintains Mr. Katzenmeyer had authority only to execute contracts on behalf of PEC. In conjunction with this argument, Wichita State asserts a mutual mistake was made in identifying the true contracting parties in the agreement. According to the University, the parties involved knew the agreement was with PEC and not Wichita State.
Wichita State also contends it did not, nor could it, ratify the Aviation Services Agreement. Here, it points out Mr. Katzenmeyer was contracting on behalf of PEC, that he was not acting as the agent of Wichita State, that all benefits under the agreement inured to PEC and ratification of the agreement was impossible because Wichita State lacked authority to enter into the contract unless it complied with the provisions of K. S. A. 1974 Supp. 76-721. Wichita State further contends that as an agency of the state, it cannot be estopped to deny the validity of the agreement.
The appellants contend the Aviation Services Agreement was entered into by Wichita State, that Mr. Katzenmeyer had apparent authority to execute the agreement on behalf of the University and it should be estopped from asserting Katzenmeyer’s lack of authority to bind the University contractually. (K. S. A. 1971 Supp. 76-725, hereafter cited and referred to as K. S. A. 1974 Supp. 76-725.) The appellants also contend that if no agency relationship existed between the parties, this court should “pierce the corporate veil” of PEC and hold Wichita State responsible for its acts. The appellants also contend Wichita State’s failure to follow statutorily required procedures regarding approval by the Board of Regents should not render a contract invalid where performance had already begun, and where there existed no indication of disapproval of the contract until after the crash. Finally, it is contended the University ratified the contract.
While this court has, on prior occasions, disregarded a corporate entity when it was necessary to promote justice or to obviate inequitable results (Kellogg v. Douglas Co. Bank, 58 Kan. 43, 48 Pac. 587; Avery v. Safeway Cab, T. & S. Co., 148 Kan. 321, 80 P. 2d 1099; Kilpatrick Bros., Inc. v. Poynter, 205 Kan. 787, 473 P. 2d 33; Kirk v. H. G. P. Corporation, Inc., 208 Kan. 777, 494 P. 2d 1087; Meehan v. Adams Enterprises, Inc., 211 Kan. 353, 507 P. 2d 849; Farha v. Signal Companies, Inc., 216 Kan. 471, 532 P. 2d 1330), we find it unnecessary to apply the alter ego doctrine here.
We are confronted in this appeal with two issues regarding the Aviation Services Agreement. First, we must determine the relationship between the three parties, Katzenmeyer, PEC, and Wichita State, and in so doing, determine who the contract is between, Golden Eagle and Wichita State, or Golden Eagle and PEC. Second, whether noncompliance with the provisions of K. S. A. 1974 Supp. 76-721 renders the agreement invalid. For the statute to apply, it is elementary that Wichita State must be a party to the Aviation Services Agreement. Accordingly, we shall consider first the relationship question.
The law recognizes two distinct types of agencies — one actual, and the other ostensible or apparent. What constitutes agency and whether there is any competent evidence reasonably tending to prove such a relationship is a question of law. (Greep v. Bruns, 160 Kan. 48, 159 P. 2d 803; Shugar v. Antrim, 177 Kan. 70, 276 P. 2d 372; Hendrix v. Phillips Petroleum Co., 203 Kan. 140, 453 P. 2d 486.)
To determine whether the record establishes an agency by agreement it must be examined to ascertain if the party sought to be charged as principal has delegated authority to the alleged agent by words which expressly authorize the agent to’ do the delegated act. If there is evidence of that character, the authority of the agent is express. If no express authorization is found, then the evidence must be considered to determine whether the alleged agent possesses implied powers. The test utilized by this court to deter mine if the alleged agent possesses implied powers is whether, from the facts and circumstances of the particular case, it appears there was an implied intention to create an agency; in which event, the relation may be held to exist, notwithstanding either a denial by the alleged principal or whether the parties understood it to be an agency. (Rodgers v. Arapahoe Pipe Line Co., 185 Kan. 424, 345 P. 2d 702.) In 2A C. J. S., Agency, § 52, p. 626, it is stated:
“An implied agency must be based on facts for which the principal is responsible. These facts must, in the absence of estoppel, be such as to imply an intention to create the agency, and the implication must arise from a natural and reasonable, and not from a forced, strained, or distorted, construction of them. They must lead to the reasonable conclusion that mutual assent exists, and be such as naturally lead another to believe in and to rely on the agency. The existence of the relation will not be assumed.
“While the relation may be implied from a single transaction, it is more readily inferable from a series of transactions.
“On the question of implied agency, it is the manifestation of the alleged principal and agent as between themselves that is decisive, and not the appearance to a third party or what the third party should have known. An agency will not be inferred because a third person assumed that it existed, or because the alleged agent assumed to act as such, or because the conditions and circumstances were such as to make such an agency seem natural and probable and to the advantage of the supposed principal, or from facts which show that the alleged agent was a mere instrumentality.
“The existence of a valid express contract for services as an agent precludes the implication of a contract covering the same subject-matter, and resort to an express provision in a contract relative to agency precludes any determination that there was an implied agency.”
The doctrine of apparent or ostensible authority is predicated upon the theory of estoppel. An ostensible or apparent agent is one whom the principal has intentionally or by want of ordinary care induced and permitted third persons to believe to be his agent even though no authority, either express or implied, has been conferred upon him. (Greep v. Bruns, supra; Theis v. duPont, Glore Porgan Inc., 212 Kan. 301, 510 P. 2d 1212.)
Ratification is tibe adoption or confirmation by a principal of an act performed on his behalf by an agent which act was performed without authority. The doctrine of ratification is based upon the assumption there has been no prior authority, and ratification by the principal of the agent’s unauthorized act is equivalent to an original grant of authority. Upon acquiring knowledge of his agent’s unauthorized act, the principal should promptly repudiate the act; otherwise it will be presumed he has ratified and affirmed the act. (Theis v. duPont, Glore Forgan Inc., supra, and cases cited therein.) Knowledge of the unauthorized act is essential for the principal to ratify the act, and must be shown or facts proved that its existence is a necessary inference therefrom.
The liability of a principal for the negligent acts of his agent is determined by whether the agent was engaged in the furtherance of the principal’s business to such a degree that the principal had the right to direct and control the activities of the agent. (Hughes v. Jones, 206 Kan. 82, 476 P. 2d 588.) Liability of the principal is grounded upon the doctrine of respondeat superior. (Jacobson v. Parrill, 186 Kan. 467, 351 P. 2d 194.) The primary factor to be considered is the control which the principal has over the agent.
The function of PEC, as stated by the appellee, is to conduct the business affairs and other related transactions associated with the intercollegiate athletic programs of Wichita State. The chairman of the Board of Directors of PEC is appointed by the president of Wichita State and is a member of the University’s faculty. Several other board members are either on the faculty of, or associated with, Wichita State. Those board members are also appointed by the University’s president. A faculty member of the University accompanied teams of Wichita State when it participated in athletic events at other universities. Mr. Katzenmeyer was the athletic director of the University, as well as an executive for PEC, and was appointed by the president. His salary was paid by the University. Wichita State admits Mr. Katzenmeyer was authorized to execute contracts on behalf of PEC. Moreover, the record clearly shows the president directed Katzenmeyer to award contracts for transporting its athletic teams by means of competitive bids. It is apparent from the facts the University could, and did, on several occasions, direct and control the activities of PEC. The natural, reasonable implication that arises when these and other facts are considered is that the parties intended to create an agency relationship. Accordingly, we hold PEC to be the agent of Wichita State, and that Mr. Katzenmeyer, as an officer of the corporate agent, had the implied power and authority to bind the principal — Wichita State University. Hence, Wichita State is subject to liability for any negligent acts of its corporate agent under the doctrine of respondeat superior.
The foregoing conclusion is not intended to prohibit interested alumni, through an individual or organized effort, from assisting in activities conducted by, or in the name of the University. We hold, however, the University cannot purposely delegate to a corporate entity, or otherwise, its responsibility for conducting intercollegiate athletic activities, directly control that corporate agent and then disclaim any liability. (K. S. A. 1974 Supp. 76-725.) Moreover, the facts disclose the University maintained such a close relationship with PEC so that it could be considered a mere instrumentality of the University.
Wichita State contends noncompliance with the provisions of K. S. A. 1974 Supp. 76-721 renders the Aviation Services Agreement invalid. We do not agree. K. S. A. 1974 Supp. 76-721 reads:
“The board of regents, or any university or college with the approval of the board of regents, may enter into contracts with any party or parties including any agency of the United States or any state or any subdivision of any state or with any person, partnership or corporation if the purpose of such contract is related to the operation or function of such board or institution. If such contract is with a corporation whose operations are substantially controlled by the board of any college or university, such contract shall provide that the books and records of such corporation shall be public records and shall require an annual audit by an independent certified public accountant to be furnished to the board of regents and filed with the state agency in charge of post auditing state expenditures.”
Wichita State argues the statute is mandatory and its clear, concise language requires that a university must have approval of the Board of Regents before entering into any contract, and the Board of Regents did not approve the Aviation Services Agreement. Absent such approval, the appellee contends, the contract is void and unenforceable.
No absolute tests exist by which it may be determined whether a statute is directive or mandatory. Each case must stand largely on its own facts, to be determined on an interpretation of the particular language used. (Wilcox v. Billings, 200 Kan. 654, 438 P. 2d 108; State v. Brown, 205 Kan. 457, 470 P. 2d 815.) It can be said the Legislature does not intend any statutory provision to be totally disregarded. If the consequences of not obeying a particular statute are not prescribed by the Legislature, then this court must decide the consequences. (City of Kansas City v. Board of County Commissioners, 213 Kan. 777, 518 P. 2d 403.)
The Legislature has delegated to the Board of Regents the authority to control, operate, manage and supervise the universities and colleges of this state. “For such control, operation, management or supervision, the board of regents may make contracts and adopt orders, policies or rules and regulations and do or perform such other acts as are authorized by law or are appropriate for such purposes.” (K. S. A. 1974 Supp. 76-712.) The provisions of K. S. A. 1974 Supp. 76-721 fix a method of procedure intended to secure order, system and dispatch in contracting with state educational institutions. Its provisions are directive, and as such, require implementing rules or regulations by the Board of Regents. No policy, rule or regulation of the Board of Regents has been cited or furnished to this court regarding contract matters, and none can be found in the Kansas Administrative Regulations. Wichita State asserts the contracting procedure of the University is to have a contract for goods or services first approved by a designated person at the University, then approved by the Department of Administration (K. S. A. 1974 Supp. 75-3701 et seq.) and thereafter to have it approved by an attorney of that department. Nowhere in this procedure is approval by the Board of Regents found. If the Board of Regents desires to establish guidelines in contractual matters for state educational institutions it may do so. However, absent any such rules or regulations, Wichita State cannot use the statute to deny the validity of the Aviation Services Agreement following execution and partial performance. Common honesty forbids repudiation now. (Municipal Power Transmission Co. v. City of Lyndon, 127 Kan. 59, 272 Pac. 158.)
We make one final observation on these points. As indicated, Wichita State has contended in this appeal that Mr. Katzenmeyer did not have the authority to bind the University, but only authority to contractually obligate PEC. It maintains the Aviation Services Agreement is between Golden Eagle and PEC. It also contends absent the statutorily required approval of the Board of Regents, the contract is void and unenforceable.
Broad authority is granted the Board of Regents in its control, operation and management of this state’s universities and colleges. See Murray v. State Board of Regents, 194 Kan. 686, 401 P. 2d 898; K. S. A. 1974 Supp. 76-712. Likewise, the chief executive officer of each university or college is given broad administrative authority with respect to the affairs of his institution, and extensive power is granted to delegate any part of his authority or any of his duties. (K. S. A. 1974 Supp. 76-725.)
Today, the use of separate corporate entities in collegiate athletics appears to be common, perhaps widespread, but indeed shadowy as to involvement and responsibility. Whether such arrangements should continue is not a question for this court. But when the in volvement is such as presented in the instant case, then it begs logic to hold no agency relations exist, and that the principles thereof do not apply. Performance under the contract had begun and payments made; this constituted tacit, effective approval of the aviation agreement contract. See Taylor v. Fee, 233 F. 2d 251, 258 ( 7th Cir. 1956).
The sympathy extended to those who felt the impact of this tragedy is now but a memory. The appellants now stand before this court seeking the right to redress their injuries by due course of law. They have found in their quest that such right is barred by K. S. A. 46-901. Alone, they now assail the validity of that barrier, and present to this court multiple challenges as to its constitutionality. We now resolve those challenges and in so doing hold the doctrine of governmental immunity codified in K. S. A. 46-901 to be constitutionally impermissible.
The historical origin of the. governmental immunity doctrine is found in the English case of Russell v. Men of Devon, 2 T. R. 667, 100 Eng. Rep. 359 (1788). From that decision there evolved three distinct common-law doctrines, two favoring public entities and the other favoring public officials. The doctrines of governmental and sovereign immunity were held to exempt governmental entities from privately instituted civil suits without the express consent of the sovereign. Those doctrines were founded upon the beliefs the courts, which derived their power from the sovereign, could not have been empowered to enforce such authority against the sovereign or extensions thereof; that the king could do no tortious wrong, nor could he authorize such conduct while acting in his sovereign capacity, for no man can do by his agents and officers that which he cannot do by himself. In denying vicarious liability for torts, those doctrines represented a significant departure from the common-law doctrine of respondeat superior. (Borchard, Government Liability in Tort, 34 Yale L. J. 1 [1924-25]; Borchard, Government Responsibility in Tort, 36 Yale L. J. 1039 [1927]; Jaffe, Suits Against Governments and Officers; Damage Actions, 77 Harv. L. Rev. 209 [1963].) Under the doctrine of immunity for governmental officers, the common law recognized the necessity of permitting public officials to perform their official duties free from the threat of personal liability. (Kretchmar v. City of Atchison, 133 Kan. 198, 299 Pac. 621; Gresty v. Darby, 146 Kan. 63, 68 P. 2d 649; Cunningham v. Blythe, 155 Kan. 689, 127 P. 2d 489.)
Although early decisions of this court, City of Topeka v. Tuttle, 5 Kan. 186 [* 311]; City of Atchison v. King, 9 Kan. 550; City of Atchison v. Challiss, 9 Kan. 603; City of Ottawa v. Washabaugh, 11 Kan. 102 [* 124]; City of Wyandotte v. White, 13 Kan. 146 [* 191], were related to the liability of government, we first recognized the immunity doctrine in Eikenberry v. Township of Bazaar, 22 Kan. 389 [* 556]. The principal question presented in Eikenberry was whether a township was liable for injuries caused by an unsafe or defective highway. Finding the township to be a quasi corporation existing only for the purposes of the general political government of the state, we held the township immune from suit. Chief Justice Horton wrote the opinion for the court, and said:
“. . . [A]ll the powers with which [the townships] are intrusted are the powers of the state, and all the duties with which they are charged are the duties of the state; that in the performance of governmental duties, the sovereign power is not amenable to individuals, and therefore these organizations are not liable at the common law for such neglect, and can only be made liable by statute. . . (I. c. 391, * 561.) .
As originally applied, the doctrine conferred absolute immunity upon the state and its extensions except in cases where consent had been given. Thereafter, to temper the harshness of the immunity doctrine, we began to restrict or withdraw its application in certain areas, and in so doing, created exceptions to the immunity concept. We held municipalities of this state immune in the performance of governmental functions, but liable for tortious actions resulting from functions proprietary in nature. (Hinze v. City of Iola, 92 Kan. 779, 142 Pac. 947; Water Co. v. City of Wichita, 98 Kan. 256, 158 Pac. 49; Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P. 2d 227, 5 A. L. R. 2d 47; Wendler v. City of Great Bend, 181 Kan. 753, 316 P. 2d 265; Grover v. City of Manhattan, 198 Kan. 307, 424 P. 2d 256.) Municipalities also were held liable for the creation and maintenance of a nuisance (Steifer v. City of Kansas City, 175 Kan. 794, 267 P. 2d 474; Lehmkuhl v. City of Junction City, 179 Kan. 389, 295 P. 2d 621, 56 A. L. R. 2d 1409; Galleher v. City of Wichita, 179 Kan. 513, 296 P. 2d 1062; Adams v. Arkansas City, 188 Kan. 391, 362 P. 2d 829) and liable for failing to keep streets reasonably safe for public purposes. (City of Ottawa v. Washabaugh, supra; City of Wyandotte v. White, supra; Loftin v. City of Kansas City, 164 Kan. 412, 190 P. 2d 378; Smith v. City of Emporia, 169 Kan. 359, 219 P. 2d 451; Perry v. City of Wichita, 174 Kan. 264, 255 P. 2d 667; Grantham v. City of Topeka, 196 Kan. 393, 411 P. 2d 634.)
Our holding in Carroll v. Kittle, 203 Kan. 841, 457 P. 2d 21, is the high-water mark of our decisions restricting the application of the immunity doctrine in Kansas. There, the plaintiff, an oil field worker, had caught his arm in a drilling rig. He was rushed to the University of Kansas Medical Center where his partially severed left arm was reattached by a team of doctors. Eight days after the surgery, the plaintiff, while in a disoriented state, ripped off the heavy bandages and splints from the injured arm. His arm was rewrapped by the night resident surgeon and the incident was recorded on his hospital chart. In the early morning hours on the tenth day of his recovery, the plaintiff was discovered with the bandages ripped completely off, tearing at his injured arm. The damage done on the second occasion was so extensive the arm had to be amputated.
Plaintiff was a private patient at the medical center and paid all charges for his hospitalization. He filed suit alleging the self-inflicted injury and resulting loss of his left arm was directly and proximately caused by the negligence and carelessness of the defendant Kittle, the members of the Board of Regents of the state of Kansas, and their agents, servants and employees. Kittle, plaintiff’s doctor, was a staff physician who also conducted a private medical practice at the medical center. The only issue presented on appeal was whether the doctrine of sovereign immunity was applicable.
In the opinion this court departed from the term “sovereign immunity” and merged that concept into the applicable term “governmental immunity.” Moreover, we acknowledged the inequality of the immunity doctrine as it had been applied. We held the responsibility of the various governmental agencies should be equalized by the elimination of all governmental immunity from negligence when the state or its agencies are engaged in a private or proprietary function.
In Carroll we recognized again the Legislature had authority in the field of governmental immunity. But such recognition cannot validate that which contravenes the federal and Kansas Constitutions. There, we said:
“. . . [I]n abolishing governmental immunity to the extent suggested, we want it clearly understood that we recognize the authority of the legislature to control the entire field including that part covered by this opinion. We would suggest that the legislature is in a much better position than this court to restrict the application of the doctrine because it can supplement the restriction with proper legislation in the form of provisions for insurance, etc. . . .” (l. c. 848.) (Emphasis supplied.)
The legislative response to this court’s invitation to restrict the immunity doctrine is found in part in K. S. A. 46-901, 902. The statutes provide:
“46-901. Governmental immunity of state; implied contract, negligence or other tort; notice in state contracts, (a) It is hereby declared and provided that the following shall be immune from liability and suit on an implied contract, or for negligence or any other tort, except as is otherwise specifically provided by statute:
“(1) The state of Kansas; and
“(2) boards, commissions, departments, agencies, bureaus and institutions of the state of Kansas; and
“(3) all committees, assemblies, groups, by whatever designation, authorized by constitution or statute to act on behalf of or for the state of Kansas.
“(b) The immunities established by this section shall apply to all the members of the classes described, whether the same are in existence on the effective date of this act or become members of any such class after the effective date of this act.
“(c) The state of Kansas and all boards, commissions, departments, agencies, bureaus and institutions and all committees, assemblies and groups declared to be immune from liability and suit under the provisions of subsection (a) of this section shall, in all express contracts, written or oral, with members of the public, give notice of such immunity from liability and suit. [L. 1970, ch. 200, § 1; March 26.]
“46-902. Nonapplication to local units of government, (a) Nothing in section 1 [46-901] of this act shall apply to or change the liabilities of local units of government including (but not limited to) counties, cities, school districts, community junior colleges, library districts, hospital districts, cemetery districts, fire districts, townships, water districts, irrigation districts, drainage districts and sewer districts, and boards, commissions, committees, authorities, departments and agencies of local units of government.
“(b) The provisions of section 1 [46-901] of this act shall not create any liability not now existent according to law, nor effect, change or dimmish any procedural requirement necessary for recovery from any local unit of government. [L. 1970, ch. 200, § 2; March 26.]”
By the above enactments, the law of governmental immunity in Kansas reverted back to its status prior to our decision in Carroll. Subsequent decisions of this court (Woods v. Kansas Turnpike Authority, 205 Kan. 770, 472 P. 2d 219; Daniels v. Kansas Highway Patrol, 206 Kan. 710, 482 P. 2d 46; Allen v. City of Ogden, 210 Kan. 136, 499 P. 2d 527) have been in accord with the immunity doctrine as codified, the exceptions thereto under the common law, and the several legislative inroads. (K. S. A. 68-301; K. S. A. 68-419; K. S. A. 68-2015; K. S. A. 1974 Supp. 12-2601-2614; K. S. A. 72-8404-8415 as amended K. S. A. 1974 Supp. 72-8416, 8417; K. S. A. 74-4707-4713.) For example, in Woods v. Kansas Turnpike Authority, supra, we were confronted with the question whether the Turnpike Authority was immune from liability for personal injuries resulting from the creation or maintenance of a nuisance. In sustaining that immunity, we said:
“. . . We . . . decline to engraft solely for plaintiff’s benefit the nuisance exception to the immunity previously accorded the Kansas turnpike authority under our law as it existed prior to Carroll.” (1. c. 774.) (Emphasis supplied.)
Prior to our decision in Carroll the common-law immunity concept was attacked from time to time as violating constitutional guarantees. (McCoy v. Board of Regents, 196 Kan. 506, 413 P. 2d 73; Caywood v. Board of County Commissioners, 194 Kan. 419, 399 P. 2d 561.) In Carroll we judicially altered the immunity doctrine so that it applied uniformly to all units of government, and thereby nullified prior decisions holding that immunity, as a court-made rule, was permissible as an exception which did not violate constitutional concepts.
We are not called upon in the instant case to except again from the immunity doctrine as in Woods, nor can we now consider judicially terminating the doctrine as in Carroll. Here, we are presented with multiple challenges to the constitutionality of the doctrine of governmental immunity as set forth in K. S. A. 46-901, 902.
Neither the United States Constitution nor the Kansas Constitution confer immunity upon this state. (Cohens v. Virginia, 19 U. S. 120 [*264], 5 L. Ed. 257; Carroll v. Kittle, supra.) Roth Constitutions are paramount law within their separate spheres. (Atkinson v. Woodmansee, 68 Kan. 71, 74 Pac. 640, 64 L. R. A. 325; Ex Parte Young, 209 U. S. 123, 52 L. Ed. 714, 28 S. Ct. 441.) As the guardian of the principles embodied in the Constitutions, it is within our inherent power, and our duty, to determine the constitutionality of the legislation in question. (Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P. 2d 877.) With this background, we turn to the arguments presented.
The appellants contend K. S. A. 46-901 denies them equal protection of the law. The equal protection clause of the Fourteenth Amendment to the United States Constitution finds its counterpart in Sections 1 and 2 of the Bill of Rights of the Kansas Constitution. Sections 1 and 2 declare that “all men are possessed of equal and inalienable natural rights, among which are life, liberty and the pursuit of happiness,” and that “all free governments . . . are instituted for their equal protection and benefit.” (Manzanares v. Bell, 214 Kan. 589, 522 P. 2d 1291; Henry v. Bander, 213 Kan. 751, 518 P. 2d 362.) Neither the equal protection clause of the Fourteenth Amendment nor Sections 1 and 2 of the Kansas Bill of Rights deny the Legislature the power to create distinct classifications of persons in different ways. Any distinction inherent in a particular classification must have a proper and reasonable basis for such classification. (Pinkerton v. Schwiethale, 208 Kan. 596, 493 P. 2d 200.)
Presently the state and all of its agencies have absolute immunity “from liability and suit, on an implied contract, or for negligence or any other tort, except as is otherwise specifically provided by statute." (K. S. A. 46-901.) A county, an auxiliary agency of the state, is immune from liability unless such liability is expressly imposed by statute, or necessarily implied therefrom. (Caywood v. Board of County Commissioners, supra; K. S. A. 46-902.) A city is liable for tortious conduct when engaged in proprietary activities, but enjoys immunity while engaged in governmental activities except for the creation and maintenance of a nuisance and the failure to keep streets reasonably safe. (Grantham v. City of Topeka, supra; Grover v. City of Manhattan, 198 Kan. 307, 424 P. 2d 256; K. S. A. 46-902.)
Under the foregoing, persons injured by a governmental entity are classified, solely by the type of the governmental entity involved. Their right to redress and the remedies available, if any, to them are dependent solely upon this classification. Prior to the enactment of K. S. A. 46-901, 902, we expressed our concern as to the reasonableness of so classifying persons injured by governmental units or agencies. In Wendler v. City of Great Bend, supra, Mr. Justice Schroeder expressed this court’s concern as follows:
“The State is usually deemed immune regardless of the kind of function it is performing. What justifies the difference between the State and its municipal subdivisions is baffling. The decisions seem to result from accident rather than from reason, and tend to make one question the entire rationale of the principle. For example: Consider the liability of a city to a pedestrian injured by the negligence of a city employee operating a pick-up truck under the supervision of the Water Department, and the nonliability of a city on the same facts where the truck is under the supervision of the Fire Department.” (l.c. 759.)
In Carroll we again emphasized our concern as to this irrational classification and sought to equalize responsibility. In the opinion it was said:
. . It is difficult for the majority of the court to see why one governmental agency performing precisely the same acts — e. g., operating a hospital for profit — should be liable for negligence and others should not.” (1. c. 847.)
Wichita State vigorously contends that practical and important distinctions exist for the classifications made by K. S. A. 46-901, 902. We can find none. A person’s right to redress by due course of law does not become less worthy of protection because he or she was injured by a particular governmental unit. Nor does such person’s right to compensation become any the less worthy because of the type of a governmental unit involved. Under present Kansas law, no regard is given to the injury or the facts and circumstances surrounding the events which caused the injury — it is the type of governmental agency and the activity in which it is engaged that determines whether the aggrieved party will find the doors of the court open or closed. Such a classification is forced and unreal, and greater burdens are imposed on some than others of the same desert. We find the classifications contained in K. S. A. 46-901, 902 are not only “baffling,” but arbitrary, discriminatory and unreasonable.
The doctrine of governmental immunity is an historical anachronism which manifests an inefficient public policy and works injustice upon everyone concerned. The doctrine and the exceptions thereto operate in such an illogical manner as to result in serious inequality. Liability is the rule for negligent or tortious conduct, immunity is the exception. But when the tortfeasor is a governmental agency immunized from liability, the injured person must forego his right to redress unless within a specific exception. Equality is not achieved by artificial exceptions which indiscriminately grant some injured persons recourse in the courts and arbitrarily deny such relief to others. (Winters v. Myers, 92 Kan. 414, 140 Pac. 1033.) The operative effect of such arbitrary distinctions is incompatible with the constitutional safeguards established by both the federal and Kansas Constitutions. Accordingly, we hold K. S. A. 46-901, 902 are unconstitutional and void as a denial of equal protection of the law under the Fourteenth Amendment to the United States Constitution and Sections 1 and 2 of the Kansas Bill of Rights.
Appellants next contend K. S. A. 46-901, 902 deny them due process of law under the Fourteenth Amendment to the United States Constitution and violate Section 18 of the Kansas Bill of Rights. We shall consider first the due process contention.
The political truths contained in Sections 1 and 2 of the Kansas Bill of Rights, previously quoted, have been held by this court to have the same effect as the clauses of the Fourteenth Amendment relating to due process and equal protection of the law. (Tri-State Hotel Co. v. Londerholm, supra; Henry v. Bauder, supra.)
A fundamental aspect of our cohesive society is its system of laws defining the rights and duties of its members. By virtue of such a system, our citizens are able to govern their individual affairs in an orderly manner, and definitively settle their differences. The concept of due process of law is a strategic and central necessity in our system of jurisprudence. It is this concept, embodied in both the federal and Kansas Constitutions, that guarantees one will not arbitrarily be deprived of his rights, liberty or property.
To say the governmental immunity statutes in question subvert the concept of due process is but to state the obvious, for that doctrine blocks access to our courts to those seeking redress for injuries occasioned by the negligent act of a governmental entity. In the instant case, the appellants have been summarily excluded from our courts — the only forum empowered by the people to redress their grievances by due process of law. In this posture, we must determine whether the legislation before this court bears a reasonable relation to a permissible legislative objective. (Manzanares v. Bell, supra; City of Colby v. Hurtt, 212 Kan. 113, 509 P. 2d 1142.)
The rationale upon which the theory of governmental immunity rests has been the subject of much debate. The doctrine, bom of expediency, represents an expression of the Eighteenth Century philosophy that “it is better that an individual should sustain an injury than the public shall suffer an inconvenience.” (Russell v. Men of Devon, op. cit., supra.) In ari historical perspective, the doctrine is said to rest upon forestalling “an infinity of actions” and the reluctance of the court to divert public funds “out of which satisfaction is to be made” for private injury. (Russell v. Men of Devon, op. cit., supra.)
We considered those objectives in Carroll, and said:
“We do not subscribe to the theory that sovereign immunity in the United States, and in the individual states, is traceable to the medieval concept that ‘the king can do no wrong.’ Our forefathers did not fight the Revolutionary War because they were of that opinion. Their reasoning was quite the contrary. It is difficult for us to believe that they would carry over into their common law a principle so opposed to their basic belief. (See Wendler v. City of Great Bend, 181 Kan. 753, 316 P. 2d 265.)
“No doubt the absolute monarchs of the past, and the dictators of today, refused and still refuse to be charged with wrong, but that is no reason why our representative and democratic forms of government should be so classified. We think the rule was adopted in this country as a convenience to a sovereign people. Under our form of government the legal sovereignty is in the people, and the people, in the exercise of their governmental powér, through the states, did not wish to be sued and harassed in carrying out their governmental functions. . . .” (1. c. 846.)
We do not subscribe to the belief that convenience is a pervasive legislative objective sufficient to totally deprive the appellants access to the courts. Convenience is completely unacceptable as a standard by which to balance the rights of an individual against the interest of the state. Convenience should not outweigh an individual’s right to be compensated for actual damages sustained and injuries suffered. (Muskopf v. Corning Hospital Dist., 55 C. 2d 211, 11 Cal. Rptr. 89, 359 P. 2d 457.) To hold convenience is a permissible legislative objective, sufficient to insulate the government from negligence, is to engage in incredulous reasoning, void of logic, which undermines the very principles upon which this nation was founded.
Nor do we find the threat of multiple lawsuits a tenable basis by which the appellants can be denied access to the courts of this state. The threat of “an infinity of actions” is but a monument of shallow reasoning utilized to thwart necessary changes in the law. No individual can match the state’s vast resources. Undoubtedly there will be those who shall seek unnecessarily to avail themselves of the access we now provide. That problem, however, can be resolved either by the demands of the law — demands which must be fulfilled before recovery can be secured — or by enactment by the Legislature of an adequate Tort Claims Act. We find it impermissible to deny appellants access to the courts as a means of forestalling spurious actions.
In reality, it is most probably the last rationale, that of diverting public funds to compensate for private injury, which has kept the doors of the courts closed for so long. The error of this rationale lies in the speculation from which it is borne. We have in the past alleviated this fear by permitting limited exceptions to the doctrine of governmental immunity. Moreover, where the act complained of was within a specific exception, the requirements of the law eliminated any such fear. It is the law and its requirements, which must, and will, insure the public monies are not diverted unnecessarily. (See Martin v. State Highway Commission, 213 Kan. 877, 518 P. 2d 437.)
In an article by Lawrence E. Blades, 16 Kan. L. Rev. 265, entitled “A Comment on Governmental Tort Immunity in Kansas” appears the following:
“. . . The fear that the removal of immunity would lead inevitably to financial embarrassment and thus the disruption of government has often been expressed. But this fear is more fanciful than real. The Federal government and a number of states have adopted and operated under more or less comprehensive rules of governmental responsibility in tort without any meaningful symptom of resultant or impending financial ruin. So, too, have a number of foreign countries. . . .” (p.268.)
Note, Governmental Tort Immunity in Kansas, 10 Washburn L. J. 59; Comment, Governmental Immunity in Kansas: Prospects for Enlightened Change, 19 Kan. L. Rev. 211; Van Alstyne, Governmental Tort Liability: A Decade of Change, 1966 U. Ill. L. F. 919.
The elasticity of the due process concept has occasioned much debate, and “controversies have raged about the cryptic and abstract words” of that guarantee. (Mullane v. Central Hanover Tr. Co., 339 U. S. 306, 313, 94 L. Ed. 865, 70 S. Ct. 652.) But if due process is to be secured, the law must operate alike upon all and not subject the few to' the arbitrary exercise of governmental power. Every citizen of this state has a right to be protected by the government in the enjoyment of his life, liberty and property. To that end elaborate safeguards are to' be found in the law. The life and liberty the state may not take directly, it cannot take indirectly, for a “grant of power by the public is never to be interpreted as a privilege to injure.” (Drainage District v. Railway Co., 99 Kan. 188, 161 Pac. 937.)
In sum, we find K. S. A. 46-901, 902 do not bear a reasonable relation to a permissible legislative objective. We hold those statutes transgress upon the guarantee of due process of law as provided in the Fourteenth Amendment to the United States Constitution and Sections 1 and 2 of the Kansas Bill of Rights.
We now consider the argument regarding Section 18 of the Kansas Bill of Rights. That section provides:
“All persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
In Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934, this court held the common-law doctrine of charitable immunity was constitutionally impermissible. The oft-quoted words of Mr. Justice Wertz as to the rights guaranteed by Section 18, and stated in Noel follow:
. . The constitutional provision guaranteeing to every person a remedy by due course of law for injury done him in person or property means that for such wrongs that are recognized by the law of the land the court shall be open and afford a remedy, or that laws' shall be enacted giving a certain remedy for all injuries or wrongs. ‘Remedy by due course of law,’ so used, means the reparation for injury ordered by a tribunal having jurisdiction in due course of procedure after a fair hearing. It is the primary duty of the courts to safeguard the declaration of right and remedy guaranteed by the constitutional provision insuring a remedy for all injuries. . . .” (1. c. 763.)
Moreover, in Noel we used language appropriate to this case:
“To exempt charitable and nonprofit corporations from liability for their torts is plainly contrary to our constitutional guaranties (Bill of Rights, § 18). It gives to certain favored ones, selected arbitrarily, immunity from that equal liability for civil wrongs which is a sign of equality between citizens. It undertakes to clothe charitable and nonprofit organizations with special privileges denied to other corporations, and society. It takes from individuals the right to assert in the courts claims against all who tortiously assail their person and property and to recover judgment for injuries done. It prevents all persons from having recourse to law for vindication of rights or reparation for wrongs against the privileged charitable, nonprofit organizations. It frees one set of corporations from obligations to which their competitors and individuals, are subjected. In short, it destroys equality and creates special privilege. [Citation].” (l.c. 763.)
We reach the same conclusion with respect to governmental immunity. As observed, the immunity statute creates a class which this court has said to be without a rational basis. Here, as in the case of charitable immunity, certain favored governmental units are selected arbitrarily to be immune from civil wrongs. (Wendler v. City of Great Bend, supra; Carroll v. Kittle, supra.)
K. S. A. 46-901, 902 take from the individual the right to assert in a court of law claims against state governmental -units which by tortious conduct have injured his person. They prevent all persons having a claim against such agencies from having recourse at law for vindication of rights or reparation for the wrongs. Those statutes, like the common-law doctrine, deprive the injured party from bringing an action to remedy the injury unless insurance has been purchased and the state’s immunity specifically waived. See, K. S. A. 74-4701-4716; Mott, Executor v. Mitchell, 209 Kan. 476, 496 P. 2d 1297; Allen v. City of Ogden, supra, pp. 138, 139.
In the instant case, had the prescribed insurance been purchased as required by the contract and pertinent federal law and regulations we would not be called upon to resolve the constitutional challenge presented. Notwithstanding this fact, the appellee con tends it is not liable under the immunity doctrine. Governmental immunity was not established to condone the deliberate failure of governmental bodies to comply with the law. In sum, the doctrine of governmental immunity destroys equality and creates special privileges.
We also note another similarity between the Noel case and the instant case. In the aftermath of Noel, the Legislature enacted a statute (K. S. A. 1959 Supp. 17-1725) which rendered the property of a class of corporations (including hospitals operated on a nonprofit basis) immune from process. The effect of that statute was to reinstate the immunity doctrine as to the negligent acts of some charitable institutions. In Neely v. St. Francis Hospital & School of Nursing, 192 Kan. 716, 391 P. 2d 155, that statute was challenged, and the sole issue was whether it violated Section 18. Our decision in Neely indicates the importance this court attached to the duty articulated in Noel. In holding the statute -unconstitutional, this court re-emphasized the importance of the rights and remedies guaranteed all by Section 18, and said:
“Despite the clarity of the admonition contained in the foregoing [Noel] opinion, with reference to the constitutional guaranties protecting remedies for injury to person, reputation or property, the legislature, no doubt at the request of certain corporations organized not for profit and which operate or support one or more hospitals, operated on a nonprofit basis, adopted 17-1725, supra.” (1. c. 720.)
In both instances the doctrines (i. e., charitable immunity in Noel and governmental immunity in the case at bar) were judicially created to avoid liability for tort. Both immunities were overturned by this court (charitable immunity in Noel and governmental immunity in Carroll) and were both reimposed by the Legislature. We emphasize that in Neely this court refused to allow the Legislature to accomplish an unconstitutional result in view of our prior ruling on the subject. The same result necessarily follows in the case at bar. Notwithstanding the Legislature’s response to our invitation in Carroll to delineate governmental liability for its tortious acts, we are not restrained in putting the legislative response to a constitutional test. Nor does our conclusion in Woods that sound policy precludes further judicial inroads into the Legislature’s comprehensive statement on governmental immunity bind this court since the statute’s constitutional validity was not there in issue. See State v. Hill, 189 Kan. 403, 409, 410, 369 P. 2d 365, 91 A. L. R. 2d 750.
Finally,, in Sanders v. State Highway Commission, 211 Kan. 776, 508 P. 2d 981, .we were confronted with a claim of immunity by the highway commission in an inverse condemnation action. Historically, inverse condemnation actions have been categorized by this court to be based upon an implied contract. Thus, according to the highway commission, inverse condemnation actions were within the scope of K. S. A. 46-901 unless “otherwise specifically provided by statute.” We responded to this argument as follows:
“If the provisions of K. S. A. 1972 Supp. 46-901 et seq. [K. S. A. 46-9011 were intended by the legislature to place the cloak of governmental immunity around suits in the nature of inverse condemnation it becomes the duty of this court to safeguard the declaration of the right and the remedy guaranteed by the constitution and we must then declare the statute unconstitutional. (Noel v. Menninger Foundation, 175 Kan. 751, 267 P. 2d 934; Neely v. St. Francis Hospital ir School of Nursing, 192 Kan. 716, 391 P. 2d 155.)” (l. c. 787.)
Section 18 protects persons as well as property. Had the court been required in Sanders to enforce the- guarantees of Section 18 as it relates to property, it is evident we would not have hesitated to do so. Are the rights of an individual worthy of less protection? We think they are not.
All powers of our government are derived from the people. Their source, indeed their reservoir of strength, is in the people. For this court to now hold that governmental immunity as declared in K. S. A. 46-901, 902 does not contravene Section 18 as applied to the rights of individuals would be tantamount to construing that section as affording greater protection to property than to an individual. In so doing, we would imbed in our present law the evaluation of the individual and his property which prevailed in the early development of the common law. This would be unwise, for, as we said in Steele v. Latimer, 214 Kan. 329, 332, 521 P. 2d 304, “the principle of change runs deeply through human history and like a golden thread weaves new ‘people requirements’ into the fabrics of altered social patterns.” We hold K. S. A. 46-901, 902 violate the guarantees declared in Section 18 of the Bill of Rights of the Constitution of the state of Kansas.
Having declared the doctrine of governmental immunity as codified in K. S. A. 46-901, 902 to be constitutionally void, equality returns in regard to the responsibility of all levels of government in this state when engaged in proprietary activities. However, by equalizing responsibility we are confronted with the final question presented in this appeal. Is the transporting of football players, university personnel and interested alumni to a scheduled intercollegiate away football game a governmental or proprietary function?
On this point, the arguments of the parties are quite simple. Appellants contend the transporting of athletes and other personnel is a proprietary function; Wichita State contends it is a governmental function. According to Wichita State, the colleges and universities of this state are created exclusively for the purpose of providing educational facilities in which the state system of higher public education is administered. Hence, it maintains that all authorized functions of the state universities are governmental in character.
While we agree with the suggestion regarding the purpose of this state’s colleges and universities, we find the syllogism proffered by the University to be an overly broad, generalized conclusion.
The governmental and proprietary distinction is one of classic limitation of the common law to restrict the doctrine of governmental immunity. As initially applied by this court, the governmental-proprietary distinction related only to municipalities. (State v. Water Co., 61 Kan. 547, 60 Pac. 337; Freeman v. Chanute, 63 Kan. 573, 66 Pac. 647; Hinze v. City of Iola, 92 Kan. 779, 142 Pac. 947; City of Wichita v. Railroad & Light Co., 96 Kan. 606, 152 Pac. 768; McCormick v. Kansas City, 127 Kan. 255, 273 Pac. 471; McGinley v. City of Cherryvale, 141 Kan. 155, 40 P. 2d 377; Snook v. City of Winfield, 144 Kan. 375, 61 P. 2d 101.) The basis permitting this distinction was the proposition that municipalities exist and function in a dual capacity — one being governmental, and the other proprietary. (Water Co. v. City of Wichita, 98 Kan. 256, 158. Pac. 49; Rose v. City of Gypsum, 104 Kan. 412, 179 Pac. 348.)
In Carroll we reversed our holding in McCoy v. Board of Regents, 196 Kan. 506, 413 P. 2d 73, that the proprietary function exception to' the immunity doctrine was not applicable to either counties or the state. We held in Carroll that all levels of government have the same responsibility for torts when engaged in private or proprietary functions.
Today, the task of classifying a particular activity as either proprietary or governmental is far more difficult than it was when the distinction was first applied. As the reach of government has ex panded, it has become more and more difficult to ascertain whether an activity admits to being a proprietary function. In Krantz v. City of Hutchinson, et al., 165 Kan. 449, 196 P. 2d 227, 5 A. L. R. 2d 47, we reviewed several definitions of proprietary functions. In that case we held governmental functions are performed for the general public, with respect to the common welfare and for the exercise of which it receives no compensation or particular benefit, while proprietary functions are exercised for some specific benefit or advantage to the corporation or those comprising the local urban community.
In Grover v. City of Manhattan, 198 Kan. 307, 424 P. 2d 256, we held the applicable test to be as follows:
“In determining whether activities of a municipality are governmental or proprietary, it is proper to- consider whether the activity is primarily for the advantage of the state as a whole or for the special local benefit of the community involved, and to further consider whether the activity is in performance of a duty imposed upon the municipality by the sovereign power, or is in the exercise of a permissive privilege granted by the sovereign power; but such tests are not conclusive in determining the capacity in which the city’s activities are conducted. (Citation.)” (Syl. ¶1.)
Thereafter, in Carroll we held a governmental agency is engaged in a proprietary activity when it embarks on an enterprise which is commercial in character or is usually carried on by private individuals or is for the profit, benefit or advantage of the governmental unit conducting the activity. (Syl. ¶ 7.)
The above tests clearly illustrate the problem inherent in the governmental-proprietary distinction — that of defining a proprietary function. The cases attempting to resolve this problem are legion, and are replete with conflicts and inconsistencies. Moreover, when an activity partakes of both governmental and proprietary characteristics, the problem of categorizing that activity becomes even more uncertain. The end result of such conflicts and uncertainties is that “shadowy distinctions between governmental functions and proprietary affairs . . . have been used to decide cases, all without much rhyme or reason. . . .” (Wendler v. City of Great Bend, 181 Kan. 753, 758, 316 P. 2d 265.)
Nevertheless, we believe the governmental-proprietary distinction still has vitality. Implicit in the distinction is the recognition that it “is not a tort for government to govern.” (Jackson, J., dissenting in Dalehite v. United States, 346 U. S. 15, 57, 97 L. Ed. 1427, 73 S. Ct. 956.) Depending upon the facts and circumstances involved, the distinction can serve either to place government in the shoes of the private tortfeasor, or to limit government liability. For example, under the distinction the state is not exposed to liability as to legislative or judicial action or inaction, or administrative action or inaction of a legislative or judicial cast. Nor is the state liable in matters involving the exercise of official judgment or discretion. (Willis, et al. v. Dept. of Cons. & Ec. Dev., 55 N. J. 534, 264 A. 2d 34. See Wood v. Strickland, 420 U. S. 308, 43 L. Ed. 2d 214, 95 S. Ct. 992 [1975].)
We believe the problem in applying the governmental-proprietary distinction lies in attempting to set forth a precise definition of the terms. We have previously stated that no single test is determinative of whether a particular function is governmental or proprietary. (Grover v. City of Manhattan, supra.) In view of the expanding reach of government today, it is time the liability exposure of governmental units be determined in conjunction with the total facts and circumstances involved. Such a determination will have to be made on a case by case basis. We do not attempt in this opinion to express an ultimate doctrine. The law will be better served by evolving controlling principles out of the realities of specific cases. In this regard we note the judicial decisions abrogating the doctrine of governmental immunity reflect varying approaches as to when liability attaches. (See, e. g., Scheele v. City of Anchorage, 385 P. 2d 582 [Alaska 1963]; Stone v. Arizona Highway Commission, 93 Ariz. 384, 381 P. 2d 107; Parish v. Pitts, 244 Ark. 1239, 429 S. W. 2d 45; Muskopf v. Corning Hospital Dist., supra; Flournoy v. Sch. Dist. 1, 174 Colo. 110, 482 P. 2d 966; Hargrove v. Town of Cocoa Beach, 96 So. 2d 130, 60 A. L. R. 2d 1193 [Fla. 1957]; Smith v. State, 93 Idaho 795, 473 P. 2d 937; Molitor v. Kaneland Com. Unit Dist., 18 Ill. 2d 11, 163 N. E. 2d 89; Campbell; Knotts v. State, 259 Ind. 55, 284 N. E. 2d 733 [1972]; Klepinger v. Bd. of Comm. Co. of Miami, 143 Ind. App. 155, 239 N. E. 2d 160; Haney v. City of Lexington, 386 S. W. 2d 738 [Ky. 1964]; Sherbutte v. Marine City, 374 Mich. 48, 130 N. W. 2d 920; Williams v. City of Detroit, 364 Mich. 231, 111 N. W. 2d 1; Spanel v. Mounds View School Dist. No. 621, 264 Minn. 279, 118 N. W. 2d 795; Johnson v. Municipal University of Omaha, 184 Neb. 512, 169 N. W. 2d 286; Brown v. City of Omaha, 183 Neb. 430, 160 N. W. 2d 805; Rice v. Clark County, 79 Nev. 253, 382 P. 2d 605; Willis, et al. v. Dept. of Cons. & Ec. Dev., supra; Ayala et al. v. Phila. Bd. of Pub. Educ., 453 Pa. 584, 305 A. 2d 877 [1973]; Becker v. Beaudoin, 106 R. I. 562, 261 A. 2d 896; Holytz v. Milwaukee, 17 Wis. 2d 26, 115 N. W. 2d 618.) However, in the absence of legislation addressed to the immunity problem in the form of an appropriate Tort Claims Act, liability for tortious conduct of a governmental entity in Kansas will depend upon the particular activity with due consideration given to the totality of all relevant factors.
In the case at bar, we are confronted with a state university which, in the furtherance of its intercollegiate athletic program, undertook to transport its team members, school faculty and interested alumni to an away football game. We are not concerned with the operation and maintenance of a public school. (Rose v. Board of Education, 184 Kan. 486, 337 P. 2d 652.) Nor do the facts of this case concern the furnishing of transportation for children to and from a public school. (Anno: Schools-Torts-Sovereign Immunity, 33 A. L. R. 3d 703; see, also, K. S. A. 72-8301 et seq.; 72-8401 et seq.; K. S. A. 1974 Supp. 72-8416, 8417.)
As indicated, the district court sustained the appellee’s motion for summary judgment, and all the facts pertaining to this litigation have not been fully presented. We can through judicial notice take cognizance of certain aspects of this case. Through judicial notice, judges may properly take and act upon certain facts without proof because they already know them. (K. S. A. 60-409.)
It is common knowledge that intercollegiate football is “big business” and is operated in a businesslike manner; that it is not only an athletic endeavor of the participating universities, but also entertainment for the school’s students, faculty, alumni, as well as the general public. Intercollegiate football is a commercial activity. The benefits and advantages derived from that activity inure to the university, the governmental entity conducting the activity. Here, it was Wichita State University that secured the transportation which occasioned this tragedy, not the alumni, the faculty, or for that matter, the student players. It may not be said that intercollegiate football is in any respect a governmental function — to contend otherwise is to disregard the obvious. Intercollegiate football as presently carried on is a proprietary function. It follows that transporting players and others to a scheduled away intercollegiate football game is likewise a proprietaiy function of the University. Accordingly, we hold the district court erred in sustaining Wichita State’s motion for summary judgment.
We have by this opinion removed the procedural barriers which have prevented the appellants from seeking relief by due course of law. In so doing, we have equalized 'again the responsibility of all levels of government in this state for torts when engaged in a proprietary function. However, we intimate no evaluation whatsoever as to the merits of the appellants’ tort and implied warranty claims against Wichita State University. In Johnson v. Municipal University of Omaha, 184 Neb. 512, 169 N. W. 2d 286, 288, it was said:
“The issue of immunity and the issue of liability are two complete and distinct issues. The removal of governmental immunity in a specified area of tort actions does not impose absolute liability in place of immunity. It only makes a governmental entity subject to the same rules which apply to nongovernmental persons or corporations who do not have the shield of sovereign governmental immunity. . . .” (p. 514.)
Nor should this opinion be regarded as an evaluation of whether the appellants will be able to support their allegations by proof.
Likewise, the district court erred in concluding the Aviation Services Agreement signed by Mr. Katzenmeyer on behalf of Wichita State University and Mr. Danielson on behalf of Golden Eagle Aviation was an unenforceable contract between the University and Golden Eagle and that the plaintiffs could not maintain an action against the University as third party beneficiaries.
There are genuine issues of material fact which remain as to both the third party beneficiaries and tort claims of the appellants.
The judgment is reversed and the case remanded to the district court for further proceedings not inconsistent with this opinion.
APPENDIX A
AVIATION SERVICES AGREEMENT
This Agreement, made this July 21 day of 1970, between Golden Eagle Aviation, Inc., a corporation, hereinafter referred to as “Contractor,” and Wichita State University, hereinafter referred to as “Customer”;
WITNESSETH:
Whereas, Customer has leased (or, prior to the commencement of the services provided for herein, will have leased), from a third party, the following described aircraft:
One Douglas DC-6B
hereinafter referred to as “the Aircraft”; and
Whereas, Customer desires to have Contractor provide, with respect to the Aircraft, the services specified below, upon the terms and conditions hereinafter set forth, and Contractor is willing so to do;
Now, Therefore, Customer and Contractor do hereby agree as follows:
1. Services: Contractor shall provide the following services for the Aircraft during the period of time commencing on September 11,1970, and ending on November 14,1970:
(a) A fully qualified flight crew to fly the Aircraft to and from such points within the Continental United States as Customer may direct (or, if an itinerary is attached hereto, to fly the Aircraft in accordance with said itinerary), said flight crew to consist of:
Captain
First Officer
Flight Engineer
Two Cabin Attendants
(b) The following specified in-flight catering services. See attached schedule and itinerary titled “1970 — Football Travel Plans”.
(c) All fuel, oil and other fluids necessary for the operation of the Aircraft pursuant to their Agreement.
(d) Routine maintenance on the Aircraft.
2. Compensation: As consideration for Contractor’s providing the above specified services, Customer shall pay to Contractor a total sum of $24,388.60.
3. Payment: Customer shall pay to Contractor the sum of $12,-194.30 upon signing this Aviation Service Agreement, this sum to constitute an advance against the total of $24,388.30.
In addition, the Customer shall pay to the Contractor on October 5, 1970 the sum in addition to the advance to constitute payment in full of the Aviation Service Agreement.
4. Contractors Personnel: Contractor’s personnel engaged in the performance of this Agreement shall for all purposes remain employees of Contractor. All members of the flight crew shall be licensed and fully qualified in every respect to operate the Aircraft.
5. Delays or Cancellations: Contractor shall not be responsible for delays or cancellations occasioned by labor disputes, weather, acts of God, mechanical failure or any other factors beyond the control of Contractor.
6. Insurance: Customer, at its expense, shall provide for pas senger . . . liability . . . insurance with limits satisfactory and in accordance with the FAA and CAB regulations and shall furnish proof thereof to Contractor.
7. Entire Agreement: This Agreement, and any schedules or exhibits attached hereto, constitutes the entire agreement between Customer and Contractor and shall not be modified or amended except by writing signed by both parties.
8. Counterparts: This Contract may be executed in numerous counterparts, each, such counterpart having the same effect as the original contract.
9. Choice of Law: This Contract shall be construed in all respects pursuant to the Laws of the State of Oklahoma.
In Witness Whereof, the parties hereto, have executed this Agreement the day and year first above written.
Golden Eagle Aviation, Inc.
By / s/ Bruce J. Danielson,
Vice President.
Attest:
/s/ Floyd W. Farmer,
Secretary
Wichita State University
By /s/ Bert Katzenmeyer. | [
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Per Curiam.
Affirmed.
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The opinion of the court was delivered by
Kaul, J.:
Defendant-appellant (Richard Wardell Brown, Jr.) appeals from a conviction by a jury of aggravated burglary as defined by K. S. A. 21-3716. Defendant was acquitted on a count of murder in the first degree. The case arises out of an incident in Topeka wherein on August 21, 1973, one Mary Fortney was murdered at her home.
The evidence reproduced in the record on appeal consists, for the most part, of testimony given by Assistant District Attorney, Larry McClain, concerning statements made to him by defendant. McClain testified at length at the hearing on defendant’s motion to suppress and again at trial. The defendant testified in his own behalf on the motion to suppress and at trial. Defendant’s testimony concerning statements made to McClain conflicted to a considerable extent with testimony given by McClain.
Investigation of the case was conducted by the Capitol Area Major Case Squad, an organization of area law enforcement officers which is called upon to investigate more serious crimes committed in Topeka and vicinity. Apparently, the Capitol Area Major Case Squad had received information that defendant had talked to some other person about the Fortney case. On August 28, 1973, defendant was interviewed by Detective Marvin Vaughn of the Topeka Police Department and two other members of the Capitol Area Major Case Squad. Defendant was advised of his rights under Miranda, but refused to talk beyond denying any knowledge of the Fortney killing. Defendant was confronted with a statement concerning the Fortney killing, which he had allegedly made to some other party. Defendant continued to deny any knowledge of the incident, but subsequently asked the officers if he could get immunity. The officers advised defendant that they were not authorized to grant immunity, but that they would contact an assistant district attorney who had such authority.
A short time later, Mr. McClain arrived to interview defendant. McClain testified that he first inquired of defendant whether he had been advised of and understood his rights. McClain further testified that, at the beginning of the interview, he told defendant there would be no immunity and no promises of any kind. Initially, defendant denied any complicity in the Fortney killing. While these denials were taking place, McClain asked defendant who had tied up Mrs. Fortney, and defendant replied that Terry Burr had done so, and then defendant proceeded to tell McClain in detail what had happened at the Fortney house. According to McClain, defendant’s story was that he had been at a party with Terry Burr; that they had stopped by Jeff Sanders’s residence and from there the three went to the Fortney house; that he entered the Fortney house, which was dark at the time, through a back window, which could only be raised about twelve inches; that he unlocked the front door; and that Terry Burr and Jeff Sanders entered, after which defendant left the house. McClain’s testimony of defendant’s story, after defendant left the house, is narrated as follows:
“He did say that he heard the woman scream, and when he heard the woman scream, he, being Richard Brown, that he was outside the house and he went back into the house and tried to get Terry off the woman. He said that they were on the floor in the front or middle room, is what he described as the location of the house. He said when he went back in, that Terry Burr was on top of this woman and that he was beating her. He said, Richard Brown again — pardon me for using the pronoun. Richard Brown said he tried to pull Terry off, but he couldn’t pull him off so he left.
“He said that at the time he left, this second time he left the house, that Jeff was in the house — and this is Jeff Sanders. He said he saw Jeff in the house and he was in the kitchen of the house at the time he saw him. He also said that Jeff tried to help pull Terry off.
“He indicated that when he left, when Richard Brown left the house on the second time, that he left and went to his home at 801 Highland.
“The witness further related that subsequently the appellant told him he had not seen or heard a cat and further stated appellant had said that Terry Burr had tied up the decedent with a clothes hanger and that Terry later told him that he had ‘got down on her’ meaning that he raped her.”
According to McClain, the defendant, at McClain’s suggestion, repeated the story several times; that there were some contradictions, but that the general story was consistent each time it was related. On cross-examination McClain admitted that defendant was confused in his answers to specific questions about the interior of the Fortney house and where some items of furniture were located. McClain also testified that several times during the interview that defendant declared that he had never lied so good in his life.
Following the McClain interview, defendant was taken to the Fortney house and asked to reconstruct the crime for McClain and the investigating officers. McClain further testified that after defendant was brought back from the Fortney house, he informed defendant that he would talk to the district attorney about charging defendant with something less than first degree murder if defendant would sign a statement and agree to testify against Sanders and Burr. The upshot was that defendant was charged with aggravated burglary and was permitted to post a nominal bond. Defendant was called as a state witness at the preliminary hearing for Sanders and Burr, but refused to testify on the ground that his testimony might incriminate him. Thereafter, defendant was charged with murder in the first degree along with aggravated burglary.
At trial the state established the corpus delicti by the testimony of investigating officers. The officers described the body of Mrs. Fortney, she was lying on a bed on her back with an elastic type bandage wrapped around her head and neck area; that she was clad only in an undershirt; that her arms were behind her back; and that her face and stomach were extremely bruised. A pathologist, called by the state, testified that there was “hemorrhaging in the vagina wall,” indicating that a rape had. been committed. The investigating officers observed an iron skillet on the stove in the kitchen and that the screen on a back window had been tom across the bottom and up one side.
The defendant took the stand at trial and denied any complicity in the killing. He testified that when he was arrested and interviewed he was under the influence of drugs; that he had been smoking and taking acid. In general, he testified that he had fabricated the story which he told from bits of information which he had gathered from the officers. He further testified that he thought McClain had come to help him; that McClain had told him that if he did not confess in five minutes “he was going up the river.” In his testimony on rebuttal, McClain emphatically denied that he had made such a statement to defendant.
Defendant filed a motion to suppress his written statement and oral statements given by him to McClain. The testimony given by defendant and McClain on the motion to suppress was essentially the same as that given at trial. The trial court ruled that the written statement was induced by a promise and was, therefore, inadmissible, but that the oral statements given to McClain were not the result of any promise or inducement, had not been tainted, and were, therefore, admissible.
The defendant specifies four points of error on appeal. In his first point defendant claims the trial court erred in overruling his motion to discharge for failure to bring him to trial within ninety days after arraignment under K. S. A. 22-3402. This point may be summarily disposed of. Defendant was arraigned on December 7, 1973, and his case was set for trial on February 4, 1974, when defendant made application for a continuance in order to hire a private investigator to assist defendant in the defense of his case. The case was reset for April 1, 1974, when the trial commenced. Since the delay was obviously the result of his own application, defendant is foreclosed from relief by the provisions of the statute itself. (See, also, State v. Pendergrass, 215 Kan. 806, 528 P. 2d 1190; State v. Powell, 215 Kan. 624, 527 P. 2d 1063; and State v. Welch, 212 Kan. 180, 509 P. 2d 1125.)
Defendant next contends that the admission into evidence, over his objection, of the skillet found in the victim’s house was error. McClain testified that defendant stated that he had seen Mary Fortney hit her assailant with a skillet. The investigating officers found an iron skillet on the stove in the kitchen. Defendant takes the position that since the skillet was discovered in the kitchen— a room away from the living room where the victim’s body was found — that it had no connection with the case and was irrelevant. The state, on the other hand, says that any discrepancies as to where the skillet was found and where it was allegedly used bears only on the weight to be given it as evidence rather than on its admissibility.
Our statute, K. S. A. 1974 Supp. 60-401, sets forth the following definitions:
“(a) ‘Evidence’ is the means from which inferences may be drawn as a basis of proof in duly constituted judicial or fact-finding tribunals, and includes testimony in the form of opinion, and hearsay.
“(b) ‘Relevant evidence’ means evidence having any tendency in reason to prove any material fact.”
Admissibility of evidence is largely within tibe discretion of the trial judge, subject to exclusionary rules. (Williams v. Union Pacific Railroad Co., 204 Kan. 772, 465 P. 2d 975.) Defendant does not point to any specific exclusionary rule — his argument is simply that the skillet was irrelevant.
In discussing relevancy, we have frequently said that to be admissible in the trial of a case evidence must be confined to the issues, but it need not bear directly upon them. To render evidence of collateral facts competent, there must be some natural, necessary or logical connection between them and the inference or result which they are designed to establish. (State v. Fagan, 213 Kan. 587, 518 P. 2d 552; State v. Gauger, 200 Kan. 563, 438 P. 2d 463; and In re Estate of Isom, 193 Kan. 357, 394 P. 2d 21.)
In the case at bar the trial court was confronted with two questions with respect to the admissibility of oral statements made by defendant to McClain — (1) were such statements induced by promises of immunity or by coercion; and (2) was the trustworthiness of defendant’s statements sufficiently established. As we have previously noted, the defendant, early in the course of his interrogation, said that he had seen the victim strike her assailant with a skillet. In subsequent repudiation of his statements defendant claimed that he had not been in the Fortney house prior to being taken there by the officers. Since a skillet was mentioned by defendant in his statement we think the presence of a skillet may be said to be logically connected with the establishment of defendants presence in the Fortney house. Tested by the rules heretofore stated, we believe the skillet was relevant on the issue of the trustworthiness of defendant’s statements and tended to corroborate admissions made by him. Any evidence tending to establish defendant’s presence was relevant on the issue of defendant’s participation in both the crimes charged. We agree with the state that any discrepancies between where the skillet was found and where it was allegedly used bears on the weight to be given to the skillet as evidence, rather than on its admissibility. We find no abuse of discretion in the admission of the skillet into1 evidence.
For his third point defendant contends the trial court erred in overruling his motion to suppress as evidence at the trial of his case his purported confession and admissions given to McClain because they were obtained by hope and reward of leniency, and for the further reason that his admissions were not trustworthy.
As we have previously noted, the trial court did sustain defendant’s motion in part, suppressing the written statement because it was induced by a promise of leniency, but, on the other hand, ruling that the oral statements of defendant testified to by McClain had not been tainted, were voluntarily made and thus were admissible. Hence, we are only concerned with the admissibility of defendant’s oral statements made to McClain.
The state contends that all of defendant’s statements to- McClain were made prior to any promise of leniency or immunity. The state says that no promises or inducements were made until the subject of a written statement came up, which was after defendant had repeated his account of the happenings at the Fortney house two or three times, and it was only in connection with the signing of the written statement and defendant’s agreement to testify against Burr and Sanders that the qualified immunity was promised. At the hearing on defendant’s motion to suppress, the trial court was called upon to evaluate the conflicting testimony of McClain and defendant as to what was said and when and under what circumstances it was said; and then to make a decision in accordance with what the court perceived to be the truth. (Holt v. State, 202 Kan. 759, 451 P. 2d 221.) The court, on defendants motion to suppress, as did the jury at trial, chose to believe McClain.
The rule adopted by this court under which the admissibility of an extrajudicial statement is tested on preliminary inquiry by the court is set forth in State v. Creekmore, 208 Kan. 933, 495 P. 2d 96, wherein we held:
“When the trial court conducts a full preliminary inquiry on the admissibility of an extrajudicial statement given by an accused, determines the statement was freely, voluntarily and intelligently given and admits the statement into evidence at the trial, this court on appeal should accept that determination if it is supported by substantial competent evidence.” (Syl. ¶ 2.)
Our decision in Creekmore was followed by the more recent case of State v. Colin, 214 Kan. 193, 519 P. 2d 629. In cases such as this, where there is a genuine conflict of evidence in connection with the voluntariness of a statement, great reliance must be placed upon the finder of fact. (Holt v. State, supra; and Andrews v. Hand, 190 Kan. 109, 372 P. 2d 559.)
The ruling of the trial court on the motion to suppress and on the admission of McClain’s testimony at trial is substantially supported by the record. In this connection McClain testified at the motion to suppress concerning his interview with defendant as follows:
“Q. Could you tell us the conversation, what took place then after, at that point in time?
“A. Well, to start with, I asked Richard Brown if he had been advised of his rights and if he understood what those rights were or had any questions about his rights. He indicated that he understood his rights; that the officers had given him his rights; he understood them, and that he didn’t have any questions about them.
“I talked with him real briefly about whether or not he had been using any alcohol or any other drugs in the last 24 hours. He indicated that he had not used either drugs or alcohol.
“And he indicated that he wanted to talk to me, and I asked him if he understood that he would be giving up the rights the officers had told him about if he went ahead and talked to me.
“Q. What did he indicate to you?
“A. He said he wanted to talk to me.
“Q. All right. Was there any discussion about immunity or anything of that nature?
“A. Yes, I told him before we got into any conversations at all, that I— it was my understanding that he was asking for some kind of immunity, and I wanted to make it absolutely clear to him that there would be no immunity; that I could make no promises to him at all; and if he wanted to talk to me, it would have to be with his understanding that there would be no promises, no immunity of any kind.
“Q. And yon indicated that to him before you started talking to him?
“A. Yes, I did.
“Q. And did you state that in clear and emphatic terms?
“A. Yes, and went over it about three times. I am sure — well, I know I told him a minimum of three times there would be no immunity, no promises of any kind.”
On cross-examination by defendants counsel at trial, McClain testified:
“Q. But you did lead him to believe, didn’t you, Mr. McClain, that sometime in your negotiations with him, he would be given some kind of immunity, didn’t you?
“A. After, sir, he had told me the story about three or four times, there was a discussion about him testifying in return for being charged only with burglary as opposed to murder. There was no discussion about him being charged with anything less than murder until after he had already told the story.”
The reliability or trustworthiness of defendant’s statements to McClain was, like the question of voluntariness, a matter to be considered by the trial court on the motion to suppress and by the jury at trial. The testimony of McClain, taken as true as it apparently was by the court and jury, is sufficient to support the trial court’s ruling and the jury’s verdict.
The defendant cites recognized authorities to the effect that a positive promise of benefit resulting in the making of a confession renders it involuntary. We agree with the proposition and it was undoubtedly the basis for the trial court’s suppression of defendant’s written statement which was executed in response to McClain’s promise of qualified immunity. However, the trial court and the jury believed McClain’s testimony that defendant had related his story three or four times after being informed that there would be no immunity nor promises of leniency, and that no promise of leniency came into the discussion until the giving of a written statement was mentioned. The circumstances surrounding defendant’s oral statements to McClain distinguished this case from cases such as State v. Stuart, 206 Kan. 11, 476 P. 2d 975, in which promises or threats are made in the first instance in order to secure admissions or a confession.
Defendant’s final point is that the verdict was contrary to the evidence. True, the verdict was contrary to defendant’s testimony, but the jury chose to believe the testimony of McClain rather than that of defendant. The applicable general rule governing appellate review was most recently stated in State v. Ritson, 215 Kan. 742, 529 P. 2d 90, wherein we held:
“In a criminal case, the issue on appeal is not whether the evidence establishes guilt beyond a reasonable doubt, but whether the evidence is sufficient to form the basis for a reasonable inference of guilt when viewed in the light most favorable to the state.” (Syl. f 1.)
For the reasons set forth above the judgment of the trial court is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Price, J.:
This was an action by private landowners to enjoin the city of Emporia and its officials from maintaining a city dump as being in violation of Lyon county zoning regulations. During the course of the trial the county was permitted to intervene as a party defendant. The trial court denied an injunction and plaintiff landowners have appealed. / :■
The basic question involved is whether the dump site was zoned by the county, under the zoning -regulations adopted, in such a way that it could not legally be used as a dump site for trash and refuse.
Pursuant to the authority found at'G. S. 1957 Supp. 19-2927 to 19-2936, Lyon county adopted zoning regulations arid plaintiffs concede they were adopted in accordance with the statute. Pertinent portions of Sectipn I of the regulations read:
“Section I
“Districts and General Regulations
“Districts '
“A. That portion of Lyon County, Kansas, between the existing city limits of the City of Emporia, Kansas, and three (3) miles beyond said existing City limits of the City of Emporia, Kansas, is hereby divided into Districts, which Districts are named as follows:
“R-l Single Family Residential Districts
“R-2 Multi-family Residential Districts
“C-l Commercial Districts , ,
.“L-I Light Industrial Districts'
“H-I Heavy Industrial Districts
“B. The location and boundaries of tire Districts shall be shown on the plan entitled ‘Lyon County Zoning Plan,’ said plan and all notations, dimensions and designations shown thereo are hereby declared to be a part of this resolution, and which plan is attached to this resolution.
“C. Where there is uncertainty as to the boundary of any of the Districts shown on the aforesaid plan, the following shall apply: (a) The District boundary lines are intended to follow the existing street, road, alley, lot or property lines as they exist at the time of the passage of the resolution, unless oherwise indicated by dimensions on the zoning plan. . .' .
“8. As the three-mile boundary changes, any additional territory shall automatically be in the R-l District until changed by an amendment to this resolution as provided by law.”
In compliance with paragraph “R,” above, a “Lyon County Zoning Plat” was prepared and made a part of and attached to the regulations. This plat, or map, was of the city of Emporia and the surrounding area, and the area zoned was within the perimeter of a circle drawn on the map, the city being in the middle thereof.
It is conceded that an irregular tract known as “Sodens Grove” was at all times material owned by the city and was a part thereof. It is connected to the city proper by a road which also was a part of the city.
The forty-acre tract purchased by the city for use as a dump site is outside the perimeter of the circle shown on the map in question, but the north line of such tract is about two and one-half miles south of the south border of the city park known as Soden’s Grove. Disregarding Soden’s Grove, the perimeter of the circle is three miles south of Logan Avenue which is the “generally recognized” south line of the city.
In holding that plaintiff landowners were not entitled to enjoin the city from using the tract in question as a dump site, the trial court stated:
“. . . It is not for this Court to determine whether or not the action of the governing body of the city was wise or unwise in the selection of the site for the city dump.
“The law creating or providing for the right of the county to zone three miles on each side of the city limits makes no provision for maps or plats but the zoning regulations adopted by the county commissioners provides for a map designated as ‘Lyon County Zoning Plan’ to show the location and boundaries of the districts included in the zoned areas and this plan was made a part of and attached to the zoning regulations.
“The Court is of the opinion that this plan is a very important part of the regulations and that a large reproduction of the plan should be displayed in a certain designated place — possibly the County Engineer’s office — and the public should be informed of that fact. When [Then] the property owners living outside the city limits would be able to find out if they were affected by the zoning regulations.
“Lyon County had the right to zone for three miles in all directions from the existing city limits of the City of Emporia but the boundaries of the existing city limits are so completely irregular that it would be virtually impossible to locate a circular boundary around the city limits without certain points in the' boundary line being less than three miles from the city limits.
“The land purchased by the city was not included within the zoned area shown on the plan and the city commissioners had the right to rely on that fact.
■ “Judgment is rendered for the defendants. Plaintiffs are ordered to pay the costs herein.”
Material portions of the journal entry of judgment read:
“Thereupon, the Court finds that the map or plat attached to the zoning ordnance and referred to and incorporated therein by reference, indicates by the deformed circle the outer boundaries or limitations of the area to be zoned under such resolution, that said map or plat controls over the words, phrases and clauses contained in such regulations establishing the zoned area as extending from the city limits of the City of Emporia, Kansas, to a point three miles beyond said city limits. The Court further finds, by reason thereof, that the real estate described in the plaintiffs’ petition upon which the defendants propose to establish and maintain a dump lies without and beyond the area zoned by the Zoning Regulations of Lyon County, Kansas, adopted by resolution on June 26, 1956, and that by reason thereof an injunction should be denied to the plaintiffs.
“The Court Orders that the injunction prayed for by plaintiffs in their petition be denied, that judgment be entered for the defendants with the costs to be paid by the plaintiffs.”
In other words, the situation amounted simply to this:
From the record presented, the perimeter of the circle on the map in question was three miles, or substantially so, from the city limits on all sides except for Soden’s Grove, an irregular tract south of the city but which technically was a part thereof. The dump site was outside and beyond the perimeter of the circle but was not three miles beyond the south edge of Soden’s Grove.
Because of this plaintiffs contend the court erred in holding that the dump site was not included in the area zoned by the county, and argue that in order to give paragraph “8,” above, any meaning, the entire regulations must be construed to indicate that the county intended to zone all of the three-mile area on all sides of the city.
We recognize the force and logic of this argument, but, nevertheless, agree with the trial court’s analysis of the question. Under paragraph “B,” above, the locations and boundaries of the districts were to be shown on the plat or map, and all notations, dimensions and designations shown thereon were declared to be a part of the resolution under which the zoning regulations were adopted. This was done, and the “dimensions” of the area zoned were indicated and established by thé circle on the map. The tract purchased by the city for the dump site was outside the perimeter of the circle— therefore outside the area zoned. Such being the case, the creation and maintenance of the dump did not violate the zoning regulations and the injunction was properly denied.
We have considered various other contentions advanced by the parties, but on the record before us they require no discussion. It has not been made to appear the trial court erred in its disposition of this case and the judgment is affirmed. | [
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|
The opinion of the court was delivered by
Jackson, J.:
This is an original action of quo warranto in which the attorney general appears on behalf of the state to test the validity of one section of the statute, as amended, creating the defendant State Office Ruilding Commission. The plaintiff challenges only the section providing for the appointment of the defendant commission as it was amended in 1953, and now appears in G. S. 1957 Supp. 75-3601. The contention is that since the section provides that only members of the legislature may be appointed by the governor to the commission, the statute is invalid under the state constitution as a violation of the provisions of the constitution providing for a separation of the powers of the executive, legislative and judicial departments of the state government. Plaintiff’s contentions are set out in his amended petition filed with this court.
The defendants by proper denials in their answer put in issue only the question of law as to whether section 75-3601 violates the constitution.
The defendant commission was first created by L. 1945, ch. 314, at the time the present new state office building was in the proposal stage. The act was amended by L. 1947, ch. 428 to give the commission greater power. The act with the 1947 amendments appears in G. S. 1949, Chap. 75, Art. 36. This version of the statute was again amended by L. 1953, ch. 395, and these amendments appear in G. S. 1957, 75-3601 et seq. Section 75-3601, which is the only section questioned by the attorney general, reads as follows:
"There is hereby created a state office building commission which shall consist of seven members to be appointed by the governor. Only members of the legislature shall be appointed and serve as members of said commission except they shall be eligible to serve out the term for which they are appointed even though they shall cease to be members of the legislature but the members of said commission who are members of the legislature shall not be entitled to receive any salary or compensation as such members under the provisions of this act during any regular or special session of the legislature. Each member of the commission shall serve for a term of four years. A vacancy for any reason shall be filled in the same manner as original appointments are made. All vacancies caused by this amendment shall be filled by appointment of the governor within thirty (30) days after this act takes effect.”
Until the amendment in 1953, members of the legislature might be appointed to the commission and all members served at the pleasure of the governor. The constitutionality of the composition of the commission as created prior to 1953 was not tested by any proceeding in court. It will be noted from the above text of the section that it is now provided that at the time of appointment all members of the seven member commission must be members of the legislature, and that members are appointed for terms of four years. The validity of the section prior to 1953 is of course not an issue in this case.
The decision in this case must turn upon the answers to be given to a few fundamental questions. These questions may be stated as follows: First, what is the nature of the powers of the defendant commission? The attorney general contends that these powers are not legislative in any degree, but are purely executive and administrative powers.
If plaintiff be correct in the first proposition, then we must examine a second question. That question may be stated as being, do we find the constitutional principle of the separation of the powers of the executive, legislative and judicial departments of the state government provided for in the constitution of this state?
If the second question be answered in the affirmative, a third and final question must be determined. May members of the legislature hold executive office under the state government during; the term for which they have been elected to the legislature?
I.
The powers of the defendant commission are set out in the act as amended and are to be found in the General Statutes and the Supplement thereto following section 75-3601. Plaintiff’s brief has summarized these powers as follows:
“1. To construct and equip a state office building on the tract now occupied by that structure. 2. To sue and be sued and to make all contracts necessary and convenient for the accomplishment of its authorized purposes and for the carrying on of its business. 3. To accept gifts and grants and to contract with the federal agencies in connection therewith. 4. To borrow money and issue evidences of indebtedness in the name of the state of Kansas, and to secure payment thereof or of any or all obligations of the Commission by pledging all or any of its revenues. 5. To select aand determine the number of its employees and their compensation and duties. 6. To permit the use of the office building by any state agency selected by the Commission; and to fix and charge such rentals therefor as it may determine to be necessary to pay the expenses of the Commission, the construction and equipment of the building and payment of the principal and interest on its obligations allocable to such building. 7. To rent unoccupied space in said building to others on month to month leases. 8. To acquire a parking lot and improving the same from the state office building fund, raze buildings on said property, regulate parking on said lot, fix and collect charges therefor, and to make rules for the removal and impoundment of vehicles unlawfully parked thereon. 9. To take title to and hold the parking lot real estate and to take title to and hold under and as against the state the interest of the state to the office building site.”
A standard and often used definition of legislative power is found in 16 C.J. S. 545, §130:
“As a general rule, under constitutional principles with respect to the division of powers, legislative power as distinguished from executive power is the authority to make laws, but not to enforce them.”
By the above standard or by any other standard known to us, the above powers of defendant commission must be said to be executive powers. We cannot find that this construction of the nature of the powers of defendant commission is disputed in defendant’s brief.
Rather the first proposition in defendant’s brief is that the instant case is controlled by the decisions in State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 273 P. 2d 198, and State, ex rel., v. Fadely, 180 Kan. 652, 308 P. 2d 537. As to this contention, we cannot agree.
In the Turnpike case, the court said on page 695:
• “While the legislature cannot interfere with nor exercise any powers properly belonging to the executive, it may engage in activities which may properly be regarded as incidental to and within the scope of its legislative duties, and it is not an encroachment on the executive for the legislature to create a commission and to designate its members to perform delegable legislative duties. See 16 C. I. S. pg. 332, et seq.”
The true meaning of the decision of the majority of this court in the Fadely case can be gleaned from the quotations set out below. In the concurring opinion of Mr. Justice Schroeder, which was concurred in by Mr. Chief Justice Parker and Mr. Justice Price, it is said:
“It is true that the legislative department of our government may not operate in the executive department to execute laws, but it is clear that tire legislative department may cooperate, investigate, study, research, recommend and enact laws. The specific enactments, as limited by the scope of this action, challenged before this court fall in the realm of cooperation on the part of the legislature and do not attempt to usurp functions of the executive department of the government.
“The statutory enactments under constitutional attack, when construed in accordance with the rules set out in Hunt v. Eddy, supra, and the cases following as herein cited, clearly indicate no violation of the separation of powers inherent'in our státe constitution, there being no usurpation by one department of the powers of the other on the specific facts and circumstances presented in this action.” (p. 697.)
In the specially concurring opinion of Mr. Justice Robb is found the following language:
“I would be inclined to join in the dissent were it not for that long line of decisions of our court following the almost universal rule that an act of the legislature is presumed to be constitutional unless it contravenes an express inhibition of the constitution or one necessarily implied from some express affirmative provision of that instrument.” (p. 698.)
The specially concurring opinion continues with the citation and discussion of several Ohio decisions to the effect that if the powers exercised by the legislature could be said to be “quasi legislative,” the statute should be upheld by the court.
It must be noted from the foregoing opinions, that the Turnpike case and especially the Fadely case were extremely borderline decisions. They do not control the present case because here the powers of the defendant commission are purely executive powers.
II.
Perhaps, in view of the above quotations from the Turnpike and Fadely cases, a full discussion of the principle of the separation of the powers of government under our state constitution is unnecessary. It must be apparent that the court in those cases did not hold that the legislature could usurp the powers of the executive department under the constitution. However, in view of the earnest argument in defendant’s brief we proceed to a short examination of the constitution of the state of Kansas.
It has been said that our constitution was modeled after the constitution of Ohio. Be that as it may, the similarity of draftsmanship between the federal constitution and our state constitution can not be a happenstance.
In the first article of the federal constitution, all legislative power is conferred upon congress. In the second article of the state constitution, all legislative power is conferred upon the legislature. We shall not speculate as to why the legislature was relegated to the second article of the state constitution.
In the second article of the federal constitution, the executive power is vested in the President. In the first article of the state constitution all executive power is vested in the governor and other constitutional executive officers.
In the third article of both federal and state constitutions the judicial power of the government is vested in the constitutional courts of the government.
The defendant states that the only prohibition against state officers holding other offices is to be found in Art. 3, sec. 13, relating to the judiciary. The argument apparently continues that the people of the state hold all power not conferred upon the federal government under the federal constitution (see Tenth Amendment to the United States Constitution). Defendant says there is a difference between the state government and the federal government and the legislature is the repository of these reserve powers. The argument is condensed as follows on page 26 of defendant’s brief:
“In other words, the state, through the legislature, may exercise any power not granted to the federal government and not prohibited by the state constitution.”
We fear that defendant has overstated tire proposition. It is the state or the people thereof to whom the power not granted to the federal government is reserved. Under the state constitution, the only power granted by the people to the legislature in Article 2 is legislative power. The legislature may exercise all legislative power possessed by the state, but can the legislature provide that its members may exercise executive or judicial power? If so, then under our constitution the legislature may change the government of this state to one which will conform to the government of the United Kingdom. There the actual chief executive officer is the leader of the majority party in the House of Commons. Furthermore, the supreme court of the nation and empire is the judiciary committee of the House of Lords.
It may be noted that the cases cited by defendant commission do not bear out the contention made in its brief.
In Leavenworth Co. v. Miller, 7 Kan. 479, 2nd Ed. star pages, the court said at page 491:
“We can see no possible application that can be made in this case of section 20, bill of rights. It will be admitted that without that section the legislature cannot exercise any power retained by the people or not delegated by the people to the legislature, and that is all that can be claimed with the section.”
Again at page 501 of the above opinion, the court said:
“As the people have by the constitution clothed the legislature with all the legislative power of the state, the first great question is, what is ‘legislative power’? This may be answered by saying that it is the power to make the laws. But then the question, equally difficult, arises, what is a law? This may be answered by saying that it is a rule of civil conduct prescribed by the supreme power of a state, which, under the constitution, and for this purpose, is the legislature; and still we are left as much in the dark as we were before. Some things, we know, come within the scope of legislative power. Other things we know do not. But we have no rule by which we can always determine accurately and precisely whether a given thing comes within the scope of legislative power or not. Hence the difference of opinion we find among eminent jurists.”
Still later, on pages 507 and 508, the opinion in the Miller case continues:
“We suppose that nobody will claim that the territorial legislature had more power in this respect than the state legislature. The territorial legislature had nothing but legislative power, and that is just what the state legislature have. The territorial legislature held their authority under the ‘organic act,’ which provides ‘that the legislative power and authority of said territory shall be vested in the governor and legislative assembly’ Section 22. The state legislature hold theirs under the state constitution. The organic act was framed by congress; the constitution was framed by the people of the state. The territorial legislature had all the legislative power in this respect that congress had power to give them. The state legislature have all the legislative power that the people of the state have power to give them.”
There can be no question but that this court has always held that the legislature has all legislative power possessed by the state under our system of federal government. But defendants have failed to note that it is only legislative poiver which is conferred upon the legislature by the state constitution. There is no grant of executive power or of judicial power to the legislature. Those powers are granted to other departments of the state government by the state constitution, and the executive department and the judicial department represent the people of the state in the use of those powers just as the legislature does in its exercise of legislative power.
If the above propositions be true, and we earnestly believe them to be, the legislature of either the federal government or of the state of Kansas may not pass legislation conferring upon the legislature executive or judicial power. A brief inspection of the history down through the years and of decided cases under both constitutions shows that statesmen and -lawyers have up to this time understood the above propositions to be the basis for the doctrine of separation of powers as that principle exists in the American system of government, first created by the constitutional convention of 1787.
Turning first to the material on the federal constitution, which we have shown to be almost identical to the Kansas constitution as to the principle of separation of powers, we find that in the constitutional convention the principle of separation of powers was discussed and fully understood. A most readable discussion of the action of the constitutional convention opening in May, 1787, is found in the recent work of Hart and Wechsler, The Federal Courts and the Federal System, pages 13 to 16, inclusive. Liberal citations to Warren, The Making of the Constitution and to Ferrand, The Records of the Federal Constitution are found in the first cited work, if a more primary source is desired. Hart and Wechsler point out that on numerous occasions it was proposed that the supreme court, or certain members thereof, should be given power “to examine every act of the National Legislature before it shall operate.” It is further shown that one of the prime reasons for the defeat of this proposal in all forms, and the substitution in its place of the president’s power of veto was that to give the court such power would violate the principle of separation of powers between the departments of the government. It is further shown that at all times it was taken for granted that the supreme court would have power to hold statutes, both federal and state, unconstitutional for violating the federal constitution, when such statutes might come before the court in judicial “cases and controversies” as provided in Article 3 of the federal constitution. This last proposition is important since it lays to rest a popular concept that the framers of the constitution did not foresee the right of the court to declare statutes invalid.
In further considering the history of thé federal constitution, it may be noted that the Federalist Papers deal with the matter of separation of powers in the proposed federal government and in the states as well. Papers numbers 47 to 51, inclusive, deal with this proposition. The first two of the series were written by James Madison and the last three by Alexander Hamilton. Both Madison and Hamilton were in complete agreement as to the proposition that the constitution, which they had been most influential in framing, provided for the separation of the powers of government between the three departments with a few exceptions spelled out in the constitution, such as the presidential veto power. We quote the following from Hamilton’s last paper on the subject:
“If the principles on which these observations are founded be just, as I persuade myself they are, and they be applied as a criterion to the several state constitutions and to the federal constitution, it will be found, that if the latter does not perfectly correspond with them, the former are infinitely less able to bear such a test.
“There are moreover two considerations particularly applicable to the federal system of America, which place it in a very interesting point of view.
“First. In a single republic, all the power surrendered by the people, is submitted to the administration of a single government; and the usurpations are guarded against, by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself.” (Italics ours.)
Of course, it may be observed that not only the framers of the federal constitution but the Supreme Court of the United States has consistently adhered to the proposition that the federal constitution, drawn on the same plan as the state constitution, provided for a separation of powers (Kilbourn v. Thompson, 103 U. S. 168, 26 L. Ed. 377; Keller v. Potomac Elec. Co., 261 U. S. 428, 67 L. Ed. 731, 43 S. Ct. 445; Muskrat v. United States, 219 U. S. 346, 55 L. Ed. 246, 31 S. Ct. 250).
In the Thompson case, the court held congress had no judicial power under the constitution. In the Keller case, it was decided that under Art. 1, Sec. 8, clause 17, congress cbuld provide that the courts of the District of Columbia might exercise administrative power since under the aforementioned clause congress had power to create a government for the district and to provide for such courts, but that the supreme court could not review such a decision of a court of the district since the supreme court had only been vested with judicial power over cases and controversies by the constitution. In the Muskrat case, it was held that congress might confer upon a legislative court, the Court of Claims, power to give an advisory opinion, but the supreme court had no such power under the constitution.
Turning now to the state constitution, we find that the framers of that constitution understood perfectly that by a division of the powers granted to the different departments of government, they had created a government in which the well-known American system of separation of powers existed (Wyandotte Convention of 1859, p. 128 to 130, inclusive).
All of the decisions of this court including all of the opinions in State, ex rel., v. Kansas Turnpike Authority and State, ex rel., v. Fadely, both supra, have taken for granted that the rule of separation of powers between the three great departments of the state government was inherent in our constitution. Some of the other cases may be cited, although most of them were referred to in the opinions of the Turnpike and Fadely cases: Coleman v. Newby, 7 Kan. 82; In re Sims, Petitioner, 54 Kan. 1, 37 Pac. 135; In re Davis, 58 Kan. 368, 49 Pac. 160; In re Huron, 58 Kan. 152, 48 Pac. 574; State v. Johnson, 61 Kan. 803, 60 Pac. 1068; State v. Railway Co., 76 Kan. 467, 92 Pac. 606; Hicks v. Davis, 97 Kan. 312, 154 Pac. 1030; Ruland v. City of Augusta, 120 Kan. 42, 242 Pac. 456; Verdigris Conservancy District v. Objectors, 131 Kan. 214, 289 Pac. 966; and State, ex rel., v. Ancient Order of United Workmen, 178 Kan. 69, 283 P. 2d 461.
III.
We shall now consider the eligibility of individual members of the legislature to hold executive office during the terms for which they have been elected to the legislature.
Defendants point to Art. 2, sec. 19 and Art. 15, sec. 1, of the state constitution and contend those provisions of the constitution give the legislature power to provide for the appointment and selection of all officers not otherwise provided for in the constitution. But does not the constitutional principle of separation of powers limit the legislature in the exercise of this power?
It would seem clear that if it had been provided in the 1953 act, now under discussion, that the defendant commission should be composed of members of the legislature appointed by the leader of the senate and the speaker of the house of representatives, there would have been little question as to the invalidity of the statute. Can the statute be made valid by the device of conferring upon the governor the right or duty of appointing the legislative committee to take over the performance of the executive functions?
This device of giving power of appointing members of “parliament” to executive office is not a new system. Under the British “parliamentary government” the prime minister is even today appointed by the crown. William Pitt, the friend of the American colonist, was first appointed in 1783, the year of Cornwallis’ surrender and is said to have been the first prime minister directly responsible to parliament and not to the king. Even without modern communications in 1788, James Madison in his first Federalist paper on separation of powers, supra, was fully aware of the new British system. Madison in pointing out the difference between the British parliamentary government and the American govern ment to be created by the proposed federal constitution, says in part:
“On the slightest view of the British constitution, we must perceive, that the legislative, executive, and judiciary departments, are by no means totally separate and distinct from each other. The executive magistrate forms an integral part of the legislative authority.” (The Federalist, p. 374.)
The great statesman continued by pointing out the legislative control over the judiciary, as well. Both Madison and Alexander Hamilton, see supra, described the legislature as being the department most apt to encroach upon the prerogatives of the other departments of government.
It may be pointed out that there have been certain checks supplied for the British parliament since 1787; that in importing the parliamentary system to France these later checks were not provided for and that the third and fourth French Republics suffered therefrom; that in the recently formed French Fifth Republic, the government of France has been turned away from the parliamentary system and toward the American system and the new constitution provides for an independent executive department.
Be that as it may, we believe that Madison and Hamilton would have thought the act now under consideration violated their proposed constitution in 1787, and we would point out, contrary to defendants’ argument, that our state constitution is theoretically similar to the federal constitution as far as the theory of separation of powers is concerned.
Regardless of the lack of the modern British checks upon parliament in the Kansas constitution, it would seem that section 75-3601 as amended in 1953 violated the American theory of separation of powers set forth in the Kansas constitution at the time of enactment and is therefore still unconstitutional today.
By the provisions of Art. 2, sec. 29 of the state constitution, members of the house of representatives are elected for terms of two years and senators for terms of four years. They are constitutional legislative officers for the entire period of their terms. We know they may perform and do many lawful, legislative functions during the period when the legislature is not in session.
By Art. 2, sec. 5, members of the state legislature lose their seats in that body if after election they are thereafter elected or appointed to any office under the authority of the United States government. It is certainly arguable that the framers of the constitution believed that the principle of separation of powers would prevent any consti tutional legislative officer of the state from holding any office under the state in the executive or judicial departments.
Plaintiff has cited the cases of Book v. State Office Building Commission, (Ind.) 149 N. E. 2d 237; Stockman v. Leddy, 55 Colo. 24, 129 Pac. 220; Spartanburg County v. Miller, Treas., 135 S. C. 348, 132 S. E. 673; Bramlette v. Stringer, 186 S. C. 134, 195 S. E. 257; and Ashmore et al. v. Greater Gr'ville Sewer D. et al., 211 S. C. 77, 44 S. E. 2d 88. As called to our attention by defendants’ brief, the constitution of Colorado, Indiana and South Carolina all specifically prohibit an officer in one department of the state government from performing duties in another department of the government.
However, we would direct attention to the opinion in Ruland v. City of Augusta, supra, wherein the late Mr. Chief Justice Harvey, in a case holding invalid the conference of legislative power upon part of the judiciary department, said:
“Our constitution provides: ‘The executive department shall consist of a governor, lieutenant governor, secretary of state, auditor, treasurer, attorney-general and superintendent of public instruction,’ etc. (Art. 1, § 1.) ‘The legislative power of this state shall be vested in a house of representatives and senate.’ (Art. 2, § 1.) ‘The judicial power of this state shall be vested in a supreme court, district courts, probate courts, justices of the peace, and such other courts inferior to the supreme court as may be provided by law,’ etc. (Art. 3, § 1.)
“Commenting on these provisions, in Western Union Tel. Co. v. Myatt, 98 Fed. 335, 347, it was said:
“ ‘That, in a broad sense, the powers of one of these departments shall not be conferred upon either of the others, is not only within the true spirit of these provisions, but also substantially within the letter thereof; and the addition thereto of an express prohibitory declaration, such as is contained in the constitutions of some of the states, that the powers of one department shall not be exercised by another, would add very little to their effect,’ so far as concerns the question under consideration. The universal doctrine of American liberty under written constitutions requires the distribution of all the powers of government among three departments — legislative, judicial, and executive— and that each, within its appropriate sphere, be supreme, coordinate with, and independent of, both the others. This doctrine was adopted into the constitution of one state with the declaration that it was “to the end it may be a government of laws, and not of men” ’.”
Of this we are certain, that if the creation of a completely legislative committee to perform duties which are entirely within the executive department is not invalid, then the principle of separation of powers between the three departments of the state government does not exist under our state constitution. Stripped of all refinements, we believe that is the import of defendant commission’s argu ment. This court has always held that the constitution provided for a division of powers between the departments of the state government. Some of the cases are cited supra. We have no disposition to recede from our former decisions.
From what has been said, it is evident that plaintiff will be entitled to judgment. However, the validity of the defendants’ actions during the space of time from 1953 to the filing of this opinion will immediately be in question. From the time of its creation in 1953 until the filing of this opinion, the acts of the members of defendant commission were those of de facto officers binding between all persons dealing with the commission as a public body composed of public officers, see State, ex rel., v. Hodgson, 183 Kan. 272, 326 P. 2d 752, syl. 4 and cases cited in that opinion.
It is further held that upon the filing of this opinion, the duties of - the defendant commission shall devolve upon the executive council, which has power to manage the property of the state (G. S. 1949, 75-2101 et seq.).
Judgment is entered for the plaintiff pursuant to the prayer of the amended petition and in accordance with the views expressed in this opinion.
It is so ordered. | [
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ORDER OF PUBLIC CENSURE
Whereas, In a proceeding conducted by the State Board of Law Examiners to inquire into the complaint of alleged professional misconduct by Myron S. Steere, and
Whereas, Following a full hearing as to such complaint, the State Board of Law Examiners found that Myron S. Steere, Ottawa, Kansas, entered into a contingent fee contract in a criminal case and thereby violated DR 2-106 (C) of the Code of Professional Responsibility (214 Kan. Ixxxii), and
Whereas, The State Board of Law Examiners has made a written recommendation to this Court that said Myron S. Steere be disciplined by “Public Censure” as provided by Rule 207 (n) (2) (215 Kan. iv [Adv. Sheet No. 2]), and
Whereas, The said Myron S. Steere, pursuant to subdivision (o) of Rule No. 207 above, has in writing elected to accept such recommended discipline and to pay the costs of the proceeding, and
Whereas, Upon consideration of the record and being fully advised of the premises, the Court accepts the recommendation of the State Board of Law Examiners.
It is, therefore, by the Court Considered, Ordered and Adjudged that the said Myron S. Steere be and he is hereby disciplined by this Court by public censure, and that he pay the costs of the proceeding. It is further ordered that this Order of Public Censure be published in the official Kansas Reports. | [
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|
The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a partition action which is the aftermath of a divorce proceeding.
The pertinent facts necessary to sustain our decision on appeal may be stated as follows: More than 60 days prior to February 17, 1971, Doris Jean Mies (plaintiff-appellee) filed a petition for separate maintenance against her husband Allen Edward Mies (defendant-appellant). The matter was assigned for hearing on the 17th day of February 1971, and the defendant was in default of pleading or appearance. There was an indication in argument on this appeal that the defendant was led to believe the plaintiff would grant him a divorce -under no circumstances which would free him for remarriage. However when the plaintiff appeared in the district court on February 17th she asked and was granted leave to amend her petition by interlineation instanter from separate maintenance to absolute divorce. She introduced her evidence and rested and the case was closed.
She told the court in the divorce proceedings the parties had 160 acres of farm land, which she wanted, and a 180 acre farm. Actually the parties owned only 80 acres, in addition to the 160 acre farm. The 160 acres had the house on it. Nowhere did she list any property specifically in her petition for divorce or set out the value or the indebtedness on the property. A few items of personal property were mentioned in her testimony but not all of it.
The trial court in the journal entry of divorce granted the wife “the 1969 Ford pickup, household goods and furnishings, the 160 acre real estate, one-half the value of the machinery and one-half the value of the cattle” (emphasis added) and other items not in controversy. The husband was awarded the balance of the property not specifically granted to the wife. The journal entry in the divorce proceeding does not itemize the farm machinery or the number of cattle owned by the parties at the time of the divorce.
In addition thereto the wife was granted the care, custody and control of the minor children and the husband was ordered to pay $200 per month for the support of the minor children during their minority.
When the husband heard about the divorce on the following day he immediately filed a motion to set the divorce decree aside. The husband continued to farm the property formerly owned by the parties and according to both the husband and the wife, the parties talked about the defendant’s motion and property settlement. They talked about the indebtedness on the machinery and the wife’s knowledge of indebtedness on the 160 acre farm awarded to her.
The trial court in the divorce proceeding made no order or finding concerning the debts of the parties, although in her testimony in the partition action the wife agreed that these were considerable and that she was told by her attorney that she was required to pay all the debt on her 160 acres. The wife further testified in the partition proceeding that she was willing to pay half of the debts on the machinery, because it was a debt in the bank.
There is evidence in the record that the husband and wife were talking with each other regularly and had reached agreement with respect to the property. Thereupon the husband’s attorney wrote to the wife’s attorney regarding these conversations. In August 1972, the wife requested her attorney to write the appellant’s attorney the following letter:
“Please refer to my letter of June 8, 1971, regarding the above captioned case. My client has again contacted me in the regard and has recently had a conversation with your client.
“Your client informed Mrs. Mies that he did not wish to proceed with this action and was satisfied with the matter as it now stands.”
As a result of this letter the husband dismissed his motion to set aside the default judgment, indicating that both parties had agreed they were satisfied with the matter as it stood at that time. This was interpreted by the appellant to mean that he was entitled to have the machinery and the 80 acres with the wife taking the 160 acres, house, furniture and other property awarded to her, subject to the debt owed to the husband’s father on the 160 acres of land awarded to the wife.
In the brief filed herein the wife does not agree with the foregoing interpretation of the letter which resulted in the husband’s dismissal of his motion to set aside the default judgment.
This court was informed on argument that the husband remarried, and subsequent thereto the wife filed this partition action alleging that pursuant to the divorce decree she and the appellant each owned an undivided one-half interest in certain personal property, listing nineteen items of farm machinery and fifteen cows with calves for a total appraised value of $18,194, as tenants in common; that the appellant has denied the appellee the right to use and possess the personal property, and the appellant’s use of the property has depreciated and wasted the assets. The court was requested to partition the personal property according to the respective interests, or if partition could not be made without manifest injury the property should be appraised and sold and the proceeds divided accordingly.
The appellant’s answer admits the divorce decree awarded the appellee one-half of the value of the farm machinery, but denies the appellee’s remaining allegations. The answer alleges the parties owned only a part of the personal property itemized. It further alleges that he and the appellee entered into an agreement whereby the appellee was to drop all claims to the cattle and machinery in consideration of the appellant’s dismissal of a motion he filed to have the divorce decree set aside.
The appellant also filed a counterclaim, in which he alleged that he was indebted to his father, L. N. Mies, for $15,000 which represents the amount borrowed in order to purchase the 160 acres of real estate granted to the appellee in the divorce decree, and that he was obligated to repay that amount when the balance of the pm’chase price for the land is paid. The answer alleges the appellee knew of the agreement and is responsible to the appellant in the sum of $15,000 for which he is obligated to his father.
The appellee in her reply alleged the counterclaim failed to state a cause of action; that L. N. Mies is not a party to> the action and cannot be granted relief; and the appellee denied any liability to either the appellant or his father.
At the trial in the partition proceeding, the appellee denied making any agreement with the appellant to forego her claim to the personal property mentioned in her petition in return for his dismissal of the motion to set aside the divorce decree. The appellee admitted that the appellant continued to farm the real property granted to the appellee, and they saw each other regularly. The appellee testified that after a conversation with the appellant in August 1972, she requested her attorney to write the appellant’s attorney a letter as heretofore quoted.
The appellee testified she was aware the combine listed in her petition was mortgaged and she would be willing to pay half of the indebtedness if she received one-half of the combine’s value; she stated at one point in cross-examination that she was unaware of any outstanding debts on the 160 acres of realty, but later testified that she knew there was money owed on it and she had been told by her attorney that she had to pay off the indebtedness; and although she had not signed a note for any of the machinery she was willing to pay one-half of the indebtedness thereon.
The appellant testified that after the appellee obtained the divorce they conversed regularly and one of the subjects was who would pay off the indebtedness of the machinery. He testified as follows regarding their final agreement:
“Q. Was there any final agreement reached between you?
“A. Well, there was several times between her and I — we had an agreement worked out.
“Q. What was it?
“A. Well, she told me several times to take the machinery and get the hell out of there.
“Q. Was this the time—
“A. —Just get off her place.
“Q. This was when your motion was pending?
“A. Yes.
“Q. Was this the reason your motion was dismissed?
“A. Yes.”
According to the appellant he purchased, built or sold some of the items of machinery mentioned in the appellee’s petition filed herein subsequent to the divorce; the cattle have been sold and the proceeds were applied to the mortgage on some machinery; and the mortgages outstanding on the machinery amount to $4,750.
On the subject of the 160 acres of realty granted to the appellee in the divorce, the appellant testified that his father had loaned the appellant and appellee $7,500 which was used as a down payment; it was not a gift, but a debt owed his father; and the appellee was aware of their agreement to repay his father.
The contract for the purchase of the quarter section of land given to the appellee is dated September 11, 1962, and calls for a down-payment of $5,500 plus $9,500 when abstract of title is approved by the purchaser. It is an installment contract requiring payments of $4,000 plus interest annually. The total purchase price was $55,000.
The trial was to the court without a jury and after hearing all the evidence the trial court found “generally in favor of the plaintiff and against the defendant”. The court ordered that the appellee “have and take judgment for one-half of the value of the personal property as set out in the divorce decree . . . less one certain 1969 Ford pickup listed as Chevrolet two-ton grain hoist, and said property be appraised” by three individuals, and that the appellant pay one-half of the total appraised value of the property.
There is no mention in the journal entry of the appellant’s counter claim. There is no personal property described in the divorce decree as journalized, except the 1969 Ford pickup.
Examining for a moment the state of the record before us, it is readily apparent there is a dispute between the parties as to whether or not the nineteen items of farm machinery and the cattle itemized in the petition herein were in fact owned by the parties at the time of the dissolution of their marriage; there is a further dispute of fact concerning whether or not the parties orally agreed to compromise the property settlement; controversy also exists as to whether or not the appellee is liable to. the appellant for the loan from his father; and there is ambiguity as to whether the divorce decree and the judgment in the partition case granted the appellee one-half of the net value of the personal property or simply one-half of its fair market value.
The trial court’s finding “generally in favor of the plaintiff and against the defendant” does not resolve the issues, and they cannot be resolved from the record here presented. In actions of this nature tried to the court the trial judge is required to make findings of the controlling facts (K. S. A. 60-252 [&]) and state the legal principles controlling the decision (Rule No. 116, 211 Kan. xlii).
K. S. A. 60-252 provides in part as follows:
“(a) Effect. In all actions tried upon the facts without a jury or with an advisory jury, the judge shall find, and either orally or in writing shall state, the controlling facts, and judgment shall be entered pursuant to section 60-258. . . .”
Rule No. 116 provides in pertinent part:
“Reasons fob Decisions. In all contested matters submitted to a judge without a jury, the judge shall, in addition to stating the controlling facts required by K. S. A. 60-252, briefly state the legal principles controlling the decision. . . .”
In Read v. Estate of Davis, 213 Kan. 128, 515 P. 2d 1096, the case was remanded for further findings, stating:
“Our cases are legion to the effect that the trial court is the one empowered to weigh the evidence, determine the credibility of witnesses, and find the facts. With that power goes the concomitant duty to set forth the controlling facts and principles of law. We have recently said:
“ “In civil actions tried to the court the rules requiring expression of controlling findings of fact (K. S. A. 60-252 [a]) and controlling principles of law (Rule No. 116, 209 Kan. xxviii) are designed as an aid to the integrity of the decision. They are mandatory and should be fairly observed by the trial judge.’ (Duffin v. Patrick, 212 Kan. 772, 512 P. 2d 442, Syl. ¶ 2.)
“To the same effect, in Andrews v. Board of County Commissioners, 207 Kan. 548, 555, 485 P. 2d 1260 we said:
“‘The findings required by K. S. A. 60-252 (a) should be sufficient to resolve the issues, and in addition they should be adequate to advise the parties, as well as the appellate court, of the reasons for the decision and the standards applied by the court which governed its determination and persuaded it to arrive at the decision. These requirements are apparent in the statute itself.’
“Where the findings and conclusions of the trial court are inadequate to permit meaningful appellate review, the appellate court has no alternative but to remand the case for new findings and conclusions. White v. State, 201 Kan. 801, 443 P. 2d 182. Cf., Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P. 2d 660; Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 433 P. 2d 572. That is the course we must follow here.” (pp. 135, 136.)
(See, also Clithero v. Key Securities, Inc., 214 Kan. 380, 520 P. 2d 1225; and Froelich v. Adair, 213 Kan. 357, 516 P. 2d 993.)
The difficulty encountered on the record herein is that the evidence is insufficient to resolve some of the issues. Under these circumstances our only alternative is to remand the case for a new trial on all issues, with each party free to introduce such relevant evidence as may be desired bearing upon the issues presented. Re-cause of the peculiar nature of the difficulties encountered in the first trial, we deem it expedient that the new trial be before a different trial judge, and we so direct. (See, Gechter v. Gechter, 216 Kan. 360, 532 P. 2d 1089.)
The judgment of the lower court is reversed with directions to grant a new trial on both the petition and the counterclaim.
Fromme, J., not participating. | [
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|
The opinion of the court was delivered by
Robb, J.:
This appeal is from an order of the trial court dated October 23, 1958, in which plaintiff’s motion for judgment on the pleadings and their demurrer lodged against defendant’s amended answer and cross petition were overruled. In a previous appeal of the same case (Bailey v. Talbert, 179 Kan. 169, 294 P. 2d 220, the judgment of the trial court was reversed and a new trial ordered. (p. 177.)
In addition to plaintiff’s petition with a partial amendment thereto and defendant’s answer and cross petition in the former trial, the defendant has now filed an amended answer and cross petition and a supplemental and amended answer and an amended and supplemental cross petition. Plaintiffs moved for judgment on the pleadings after defendant filed his amended answer and cross petition on the grounds that according to the decision of this court in the previous appeal all of the defenses offered by defendant’s pleadings and proof were without merit and were res judicata to those defenses or any others that were not raised in the first trial. On September 19, 1957, this motion for judgment on the pleadings was overruled by the trial court. After defendant filed his supplemental and amended answer and the amended and supplemental cross petition, plaintiffs filed a lengthy motion to strike, which was overruled. Plaintiffs then filed a motion for judgment and a demurrer to the supplemental and amended answer and cross petition based on the theory of res judicata.
Our opinion in the first appeal sufficiently set out the facts and we shall, therefore, not repeat them here.
On October 23, 1958, in ruling on . . plaintiffs’ demurrer to the amended answer and amended cross petition of the defendant, A. L. Talbert, and on plaintiffs’ motion for judgment,” the trial court ordered, “. . . that the plaintiffs’ demurrer and the plaintiffs’ motion for judgment be and the same are hereby overruled.” Plaintiffs timely filed and served the following notice of appeal to this court from the order of October 23, 1958:
“To: A. L. Talbert, Defendant, P. W. Stephens, and T. D. Hampson, his attorneys of record.
“You, and each of you, are hereby notified that the plaintiffs in the above cause hereby appeal to the Supreme Court of Kansas from the decision and judgment of the above entitled court overruling the motion of plaintiffs for judgment on the pleadings in said cause and from the order overruling the demurrer of the plaintiffs to the amended answer and cross petition of the defendant, which judgments and orders were made and entered on the 23rd day of October, 1958.”
Plaintiffs have assigned four specifications of error. The first, third and fourth claims of error are based on defendant’s supplemental and amended answer and cross petition but by reason of the record before us, we cannot consider those contentions because they were not included in the trial court’s order of October 23,1958, or in the notice of appeal therefrom. In O’Brien v. Jones, 183 Kan. 170, 326 P. 2d 257, the rule was stated thus:
“Rulings not particularly specified in a notice of appeal present nothing for appellate review.” (Syl. ¶ 1.)
The only question remaining pertains to the correctness of the trial court’s order overruling plaintiffs’ demurrer to the amended answer of defendant, as set out in the trial court’s order and the notice of appeal. When a new trial is ordered by an appellate court, the parties are restored to the same condition they were in before the former trial was had or judgment rendered. (Bank v. Edwards, 84 Kan. 495, 497, 115 Pac. 118.) When this court ordered a new trial in the court below, the case was left for trial upon issues framed by the pleadings as though no trial had been had. (Commander-Larabee Milling Co. v. McBride, 152 Kan. 709, 107 P. 2d 668, cited and followed in Nicholas v. Latham, 179 Kan. 348, 353, 295 P. 2d 631.)
Under such circumstances a demurrer grounded on the theory of res judicata, as plaintiffs’ demurrer was in this case, was properly overruled by the trial court.
Affirmed. | [
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|
The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment construing a will.
The judgment of the district court is in the form of a written opinion. It sets forth the issues involved, the rulings thereon, and most of the salient facts on which the court based its decision. For that reason such opinion will be quoted at length. It reads:
Ruling & Judgment of the Court
“Gentlemen:
“The records in this case disclose that on the 2nd of January, 1953, Maggie Taylor, also known as Margaret E. Taylor, deceased, made her will, which has been admitted to probate in the Probate Court of Wyandotte County, Kansas, and in said will there is Paragraph No. 4 which reads as follows:
“ ‘It is my will and I direct, in the event I have not disposed of the property at 2323 Elmwood Street, Kansas City, Kansas, at the time of my death, that it go into and become a part of the assets of my estate, and that same be sold and the funds derived from the sale by distributed as per the laws of descents and distribution of the State of Kansas.’
“It is stipulated and agreed that the said Maggie Taylor, also known as Margaret E. Taylor, died on the 15th day of March, 1953, leaving as her sole and surviving heir, her husband, Charley Taylor.
“It is further stipulated and agreed that on the 14th day of June, 1951, Maggie Taylor, also known as Margaret E. Taylor, entered into an option contract with Edward E. Gore and Othella Gore, husband and wife, to sell Lots 49 and the east 15 feet of Lot 50, in Coburn’s Second Addition, now in and a part of Kansas City, Kansas, for $4,065.45. That said property was commonly known as 2323 Elmwood Street, Kansas City, Kansas, and the same property referred to in Paragraph 4 of the will.
“The questions of law to be decided by this court on this appeal are:
“(a) Whether or not the property above described, and known as 2323 Elmwood Street, Kansas City, Kansas, was ‘disposed of within the meaning of Paragraph 4 of the will referred to herein, in the light of all the stipulated facts contained herein; and
“(b) Whether the proceeds collected to date and hereafter collected under the option contract should go to the assets of the estate or the surviving .husband; and
“(c) If the said option contract is sold under the order of the Judge of the Probate Court of Wyandotte County, Kansas, then whether the proceeds of such sale should go to the assets of the estate or the surviving husband.
“It is stipulated and agreed that on the 23rd day' of February, 1957, after a petition duly filed by the executor in the Probate Court of Wyandotte County, Kansas, the interests of the deceased in the above described real property was appraised as $2,548.72, and on the 25th day of March, 1958, said option contract was ordered sold, but as of now it has not been sold.
“The Court rules as a matter of law, as follows:
“(a) That the option contract referred to herein did dispose of the real property known as 2323 Elmwood Street, Kansas City, Kansas, within the meaning of Paragraph 4 of the will.
“(b) That the proceeds collected to date or hereafter collected under said option contract should go to the assets of the estate to be distributed to the other devisees and legatees set out in the will and not to be treated as specific bequest to the surviving husband.
“(c) If the said option contract is sold by the Probate Court of Wyandotte County, Kansas, then the proceeds of such sale should go to the assets of the estate to be distributed to the other devisees and legatees set out in the will and not be treated as a specific bequest to the surviving husband.
“Based upon the above rulings upon the law, the Court renders judgment according.
“Dated: December 24, 1958.”
The contract and will referred to in the foregoing opinion were before the trial court during the trial. They disclose additional and informative facts pertinent to the issues which should be mentioned. Hence, brief reference will be made thereto.
The will contains ten paragraphs, hereinafter identified by numbers. For present purposes No. 1 relates to payment of funeral expenses; No. 2 specifically devises the family home, the household furniture and a 1946 Chevrolet Automobile to the decedent’s husband; No. 3 bequeaths $500 to Mamie Wilkerson, a cousin; No. 4 is quoted in the trial court’s opinion and requires no further reference; Nos. 5, 6, 7, 8 and 9 contain specific bequests to certain religious and charitable organizations, namely, St. Paul A. M. E. Church of Kansas City, Kansas, Douglass Hospital, Kansas City, Kansas, Florence Crittenton Mission (Colored), Topeka, Kansas, Guardian Angel Home for Orphans, Leavenworth, Kansas, and Johnson Rest Home, Topeka, Kansas, respectively; and No. 10 is a residuary clause, bequeathing and devising all of the testatrix’ remaining property to her cousin, Mamie Wilkerson.
We are not disposed to burden our reports with details of the lengthy contract entered into between Margaret E. Taylor, otherwise known as Maggie Taylor, and Edward E. Gore and Othella V. Gore, husband and wife, on June 15, 1951. It suffices to say a careful analysis of that instrument discloses that, notwithstanding it is titled “Option Agreement,” it is an agreement similar in form and substance to the agreements involved in our former decisions of Marquez v. Cave, 134 Kan. 374, 5 P. 2d 1081; Ditzen v. Given, 139 Kan. 506, 32 P. 2d 448. And added that such contract shows on its face that the price to be paid for the Elmwood Street property was $4,065.45, payment of which was to be made by the Gores by a substantial down payment, the receipt of which was acknowledged, and the remainder of the principal sum to be paid in equal installments from month to month until fully paid, whereupon the property was to be conveyed to the Gores by a warranty deed warranting the title to said premises as of the date of the agreement; that, at or about the time of the execution of the contract, the Gores were given possession of the involved, real estate; and that thereafter, without any steps having been taken to dispossess them or otherwise declare the contract at an end, they continued to make the installment payments, due under its terms, to the decedent up to the date of her death. Indeed, from payments endorsed on the contract, it appears they continued to make additional installment payments on the contract until March, 1957, at which time, it must be assumed, the amount required to complete payments thereon was $2,548.72, as indicated in the trial court’s opinion.
Insisting that the involved agreement must be regarded as an option contract, the first question raised by appellant is — What was the significance of the contract entered into by Margaret E. Taylor and the Gores before she made her will?
Having carefully analyzed the contract and determined that, when compared with those involved in the two cases to which we have heretofore referred, there is no material difference in its terms and provisions, we have little difficulty in concluding such contract must be construed as an executory contract for the sale of real estate.
See Marquez v. Cave, 134 Kan. 374, 5 P. 2d 1081, which holds:
“In an action to determine the rights of parties under a contract with respect to real property, the record is examined, and it is held: The trial court correctly construed the contract as one for the sale of the leal property rather than a pure option to purchase.” (Syl. f 1.)
And in the opinion said:
“Appellants complain of this finding and contend that the contract, by its wording, was a mere option, such as the court had before it in Caldwell v. Frazier, 65 Kan. 24, 68 Pac. 1086, and allied cases. The point is not well taken. Clearly the contract is not a simple option. It not only fixes the price of the property, but gives credit ‘on the purchase price’ of the $400 down payment, provides that the- monthly payments in excess of interest shall reduce the sum to be paid, and for the ultimate conveyance of the property when full payment has been made. It is true that it is headed ‘Option Agreement,’ and contains many words and phrases suitable or common in pure option agreements, but these do not destroy the obvious purpose and nature of the contract. The contract should have been drawn fairly to represent the transaction in which the parties were engaged. To mingle into it terms and expressions with respect to an option foreign to the real purpose of the parties tends only to confusion. . . .” (p. 376.)
See, also, Ditzen v. Given, 139 Kan. 506, 32 P. 2d 448, where it is held: ,
“In an action for money and for specific performance of a contract for the sale of real estate, the contract is examined, and it is held that it is a contract for the sale of real estate even though it is called an option to purchase.” (syl. f 1.) '
For another decision, somewhat different from the standpoint of facts and circumstances here involved but nevertheless supporting the conclusion just announced, see Farrell v. The Federal Land Bank of Wichita, 175 Kan. 786, 267 P. 2d 497, where it is said:
“Obviously sensing that it might strengthen his position the first contention raised by appellant is that the involved contract is unilateral in nature and must be construed as a contract to sell rather than one of purchase and sale. We think this question was determined adversely to appellant’s contention in Marquez v. Cave, 134 Kan. 374, 5 P. 2d 1081; Ditzen v. Given, 139 Kan. 506, 32 P. 2d 448. Be that as it may, a review of the contract and its provisions, particularly those contained in the mutual covenants and reciprocal promises heretofore described, makes it clearly appear that agreement was bilateral in character and convinces us it must be construed as a contract for the purchase and sale of the real estate. The fact the involved agreement contains provisions for its forfeiture for non-payment or a breach of its other terms and conditions does not warrant a contrary conclusion as appellant suggests. A careful analysis of the opinion in Marquez o. Cave, supra, discloses that the contract there involved contained provisions of like import.” (pp. 789 & 790.)
And see Home Owners' Loan Corp. v. Jaremko, 146 Kan. 328, 330, 331, 69 P. 2d 1099.
It cannot be gainsaid that an executory contract providing that tfie owner of property will convey certain real estate to another by warranty deed warranting the title thereto as of the date of the contract, upon the making and completion of the installment payments therein set forth, has placed that property out of his control to such an extent that it has been disposed of. The fact, as we have seen, such an agreement contains provisions for its forfeiture for nonpayment or a breach of its other terms and conditions does not warrant a contrary conclusion as is urged by appellant. Therefore we hold that the trial court did not err in its ruling that as a matter of law the involved contract disposed of the real property known as 2323 Elmwood Street, Kansas City, Kansas, within the meaning of Paragraph 4 of the will.
In reaching the foregoing conclusion we do not overlook, but reject, appellant’s further contention that such ruling is contrary to the obvious expressed wishes and intention of the testatrix. There was no extrinsic evidence adduced on this point and, since, we have heretofore indicated, Mrs. Taylor had disposed of the property described in Paragraph 4 of her will at the time of her death the terms and provisions of such paragraph must be regarded as inoperative. Therefore such contention lacks merit and cannot be upheld because, as we read the will, the testatrix, under other paragraphs of that instrument, made provision for the disposition of all property owned by her on the date of her death in clear and unambiguous language. In such a situation the established rule of this jurisdiction is that a construction of the will is unnecessary, and it must be enforced in accord with its terms and provisions (see e. g., In re Estate of Blank, 182 Kan. 426, 430, 320 P. 2d 775; In re Estate of Reynolds, 173 Kan. 102, 244 P. 2d 234; In re Estate of Hauck, Í70 Kan. 116, 223 P. 2d 707).
Finally it is urged that the trial court erred in holding (1) that the proceeds collected to date or hereafter collected under the involved contract should go to the assets of the estate to be distributed to the other devisees and legatees set out in the will and not be treated as a specific devise to the surviving husband and (2) that if such contract is sold by the probate court, then the proceeds of such sale should go to the assets of |the estate to be distributed to the other devisees and legatees set out in the will and not be treated as a specific bequest to the surviving husband. These questions can be considered together.
In Pickens v. Campbell, 98 Kan. 518, 522, 159 Pac. 21, it is said that ordinarily the right to the purchase price of land, contracted to be sold but not conveyed at the time of the vendor’s death, passes to his personal representative and not to his heirs. Such is the general rule. See 55 Am. Jur., Vendor and Purchaser, pp.' 785, 786 § 359, which reads:
“The equitable principle that the interest of the vendor under an executory land contract is to be regarded as personalty has been frequently applied in the distribution of a deceased vendor’s estate; accordingly, it is held that the vendor’s interest in the land which he has contracted to sell passes to his personal representative as personalty, together with the right to the unpaid purchase money and securities therefor. . . .”
Application of the foregoing rule means that proceeds received or to be received under the contract are to be distributed in accord with operative provisions of the will and that the trial court’s rulings on the two questions last above mentioned were proper and must be upheld.
After a careful and extended examination of the record we find nothing in appellant’s contentions or in arguments advanced with respect thereto which either permits or requires a reversal of the trial court’s judgment. It is therefore affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from an order of the trial court overruling a motion by appellant (as respondent) to quash a previously issued contempt citation finding him in contempt of court, assessing a fine of $250.00, and sentencing him to the county jail for thirty days or until he purged himself by complying with the court’s order.
The suit originated by the filing of plaintiff’s petition wherein the appointment of a receiver was sought for the defendant corporation. The trial court appointed a receiver and issued an order whereby appellant, as chairman of the defendant’s board of directors, “. . . and all persons in active concert with him . . .” were restrained and enjoined from interfering with the receiver or the control and operation of the defendant corporation or its assets and were ordered to forthwith deliver to the receiver all assets and property, books and records of defendant.
A verified motion for citation was filed by the receiver (who had accompanied the Saline county sheriff when the above order was served on appellant in the defendant’s office in Salina on February 28, 1958) requesting a court order directing appellant to appear forthwith to show cause why he should not be adjudged in contempt because he had stated that he did not know where the assets, books, and records of the corporation were and he had failed and refused to comply with the court’s order. A further purpose of his appearance was to require appellant to disclose the required information. On March 1, 1958, the trial court ordered appellant, as respondent, to appear at 10:00 a. m. on March 3, 1958, and further that service of a certified copy of such order was to be in lieu of a formal issuance and service of a citation upon him. This was served on appellant on March 1,1958.
On March 3,1958, appellant filed a .verified motion to quash showing that the order of citation was made without appellant or his attorneys having any opportunity to be present at the hearing on the motion; that appellant was not a party to the suit; that on February 28,1958, prior to issuance of the citation, appellant’s attorneys had advised the trial court they desired to be heard on any further proceedings, orders, or citations sought and had been advised by the court that a hearing as to other disputed matters on Saturday, March 1,1958, was impossible but that such matters would be heard on March 4,1958; and finally, it was stated that the receiver’s motion for citation did not contain sufficient facts upon which appellant could be adjudged guilty of contempt. This motion was overruled by the trial court.
Appellant then moved for an order requiring the receiver to file proper accusation, which the trial court overruled and required appellant to take the stand.
At the outset of this proceeding the application for citation showed on its face that an indirect contempt of court was involved. G. S. 1949, 20-1202.) At that time there had been no accusation filed, as required by our statute, G. S. 1949, 20-1204. Possibly appellant could have waived the filing of a formal accusation but he did not do so. On the contrary, his counsel made a specific oral request to the trial court, which appears in the record, that the receiver be required to file a formal accusation, thereby giving appellant an opportunity to answer. As stated in In re Gambrell, 160 Kan. 620, 623, 164 P. 2d 122, these matters are jurisdictional and the absence of them renders the order void. In other words, the trial court was in error in denying appellant’s requests and as a result of the hearing, the final order finding appellant in contempt of court was void and of no force and effect.
Judgment reversed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order striking an amended petition from the files.
The facts necessary to a proper understanding of the controversy between the parties, as well as those essential to a proper disposition of the appellate issues involved, are not in dispute and appear from the pleadings and motions, the contents of which should be set forth at length.
Plaintiff, D. G. Neuvert, commenced the action by filing a pe- ' tition against defendants, K. T. Woodman and D. J. Iannitti. Omitting averments, relating to identity of the parties, legal description of real estate, and the prayer, that pleading reads:
“4. That on July 9, 1956, plaintiff was the owner of valid and subsisting oil and gas leases covering the following described lands and real estate, situate in Barton County, Kansas, to-wit: (Description omitted.)
“5. On said date, plaintiff and the defendants aforesaid, doing business as Woodman-Iannitti Drilling Co., entered into an agreement providing that plaintiff assign unto said defendants, doing business under the firm name and style as aforesaid, said leases covering all of the above described land, reserving, however, unto plaintiff as an overriding royalty a 1/16 of 7/8th of the oil and/or gas produced under said leases on the following described lands in Barton County, Kansas, to-wit: (Description omitted.), and it was further provided in said agreement that plaintiff sell and deliver unto said defendants, doing business as Woodman-Iannitti Drilling Co. all of the 5/2" oil string recovered by plaintiff from the puffing of his # 1 Heinze well located on (Description omitted), Russell County, Kansas.
“6. Said defendants in consideration of the assignment of said leases, by plaintiff, and the sale and delivery of said oil string, agreed to start a test well on the acreage hereinabove described, to be assigned by plaintiff, by or before sixty (60) days from July 9, 1956, to a depth sufficient to test the Arbuckle Limestone or 3625 feet, unless oil and/or gas be found above such depth in commercial quantities. That said agreement, dated July 9, 1956, is hereto attached marked ‘Exhibit A’ and by this reference incorporated herein.
“7. That on July 25, plaintiff executed and delivered to said defendants assignments covering oil and gas leases held by him covering each of the above described lands and real estate to be assigned to said defendants. True and correct copies of which are hereto attached, marked (‘Exhibits B to H,’ inclusive) and by this reference incorporated herein; that plaintiff performed each and every of the obligations on his part to be performed under the terms of said contract, but that defendants have failed, neglected and refused to drill said test wéll therein provided for and that by reason thereof, this plaintiff has been damaged in the sum Sixteen Thousand Dollars ($16,000.00), being the reasonable and actual costs for the drilling of a test well as provided in said contract to a depth of 3625 feet.”
So far as here pertinent Exhibit “A” of the petition, the agreement entered into by the parties on July 9, 1956, reads:
“This agreement entered into by Woodman-Iannitti Drilling Co. party of the first part and D. S. Neuvert party of the second part.
“The party of the first part agrees to drill a test well somewhere on the following acreage (Here follows legal description of six tracts of land) all in Barton County, Kansas, and the party of the second part will assign to the party of the first part the leases on all of the above described acreage which party of the second part now has and leases are to be free and clear of any indebtedness and override and are to be the full interest, except party of the second part will have 1/16 of 7/8th override on the following acreage (Here follows description of three of the above mentioned tracts of land).
“It is also agreed that party of the second part also agrees to sell to party of the first part all of the 5/á" oil string the party of the second part recovers from the pulling of his # 1 Heinze well which is located in . . . Russell County, Kansas, at the rate of $1.50 per foot and footage to-be determined by actual tally. It is also understood that party of second part agrees to if in the event the pipe recovered doesn’t tally at least 2500 to wait until he or party of first part obtains the shortage before starting the test well above mentioned.
“The party of the 1st part agrees to start a test well on the acreage as described by or before 60 days from date except for reasons beyond their control.
“It is also agreed that party of the second part will have abstract cleared and present to party of first part cleared.
"It is agreed that party of the first part will hold the above mentioned oil string in stock until the above test is. drilled. After the above test is drilled and if the pipe is not used in it the party of the first part is free to do with it what ever they choose.
“This agreement becomes binding on party of the first part when the party of the second part delivering of above mentioned pipe to the party of first parts yard at Hoisington.”
Exhibits “B” to “H,” inclusive, of the petition, are oil and gas lease assignments covering the acreage listed in the second paragraph of the agreement. These were alike in form and each contained the following provision:
“(Notwithstanding anything herein contained this assignment shall become null and voil and of no force and effect unless the assignee herein shall commence or cause to be commenced a test well for oil and/or gas upon the Northeast Quarter (NE K) of Section Ten (10), Township Eighteen (18), Range Fifteen (15), Barton County, Kansas, within Sixty (60) days from and after the date of this assignment.” (Emphasis supplied.)
In due course defendants demurred to the petition on the ground it failed to state facts sufficient to constitute a cause of action. After a hearing this demurrer was sustained under an order allowing plaintiff ten days in which to amend.
Instead of appealing from the ruling on the demurrer plaintiff filed an amended petition within the time granted by the trial court. This pleading, in all respects, was identical in form and language with the original petition except for the addition of two sentences. These sentences, which were inserted following the semicolon and before the word “that” as they appear in Paragraph Seven of the original petition, heretofore quoted, read:
“That thereafter and prior to the expiration of 60 days from luly 9, 1956, it was orally agreed by and between plaintiff and K. T. Woodman, acting for and on behalf of said defendants, and each of them, that said defendants despite any restriction as to the location of said drill site of the test well, to be drilled in accordance with the terms of the contract of July 9, 1956, appearing in said assignments, dated July 25, 1956, could drill said test well on any portion of the acreage and leases so assigned by plaintiff to defendants. That defendants entered into negotiations with various persons, whose names are unknown to plaintiff, except that defendants negotiated with a firm, association or corporation known as Brown-Fortier to invest in the test well to be drilled somewhere on the acreage assigned by plaintiff, and that defendants conducted seismograph operations upon said acreage so assigned by said plaintiff.”
Following the filing of the amended petition, in manner and form as indicated, defendants filed a motion to strike that pleading from the files. Such motion, as filed and presented in the court below, is set forth in the abstract. Since, as will presently appear, it discloses the reasons on which that tribunal based its subsequent ruling, and there is some quibble between the parties on that subject, we deem it necessary to quote pertinent portions of die motion. They read:
“Come now the defendants, . . . and moves the court for an order striking from the files the amended petition filed herein for the reason that the matters therein alleged have been fully and finally adjudicated by the ruling of the court made on May 24, 1957, wherein the court sustained the demurrer filed by the defendants to the plaintiff’s petition, and the matter is now res judicata.
“In support of this motion, the defendants state as follows:
“The demurrer previously sustained by the court was predicated upon the ground that the petition failed to state a cause of action by reason of the forfeiture provision in the assignments attached to the petition as exhibits. The petition and the amended petition are identical except that in the amended petition the plaintiff has added to paragraph seven the following language: (Here follows the allegations, heretofore quoted, included in the amended petition. )
“It is respectfully submitted that this supplementation would in no way alter the reasoning upon which the court sustained the demurrer to the original petition.
“As shown in the argument before the court on the demurrer, under the rule enunciated by our Supreme Court in the case of State, ex rel. -o. Hedrick, 178 Kan. 135, 139 (1955), where a pleader attaches to his pleading a written instrument upon which his allegations rests, he cannot plead at variance with the terms of that instrument. Both the original petition and the amended petition attached as exhibits the alleged agreement between the parties made on July 9, 1956, and the assignments made by the plaintiff to the defendants. When the petition as well as the amended petition is examined together with the exhibits attached thereto, it will be seen that what the plaintiff has attempted to do is to plead an action predicated upon an unconditional promise to drill a well, where actually there was no such promise. Although the alleged agreement contained an unconditional promise to drill, the assignments attached containing the forfeiture provisions altered the agreement to that of a conditional promise. As stated in our previous argument on the demurrer, we were unable to find a single case where any court had ever permitted a recovery for failure to drill an oil and gas well where there was a forfeiture provision in the lease or the assignment of leases as in the case now before this court. This court sustained the demurrer to the original petition on that ground. The supplementation found in the amended petition obviously does not cure this defect.
“We respectfully submit, therefore, that the attempt of the plaintiff to plead an oral agreement permitting the defendants to drill a test well on any portion of the acreage they desire could in no way effect the reasons for the ruling upon the demurrer to the original petition. Furthermore, the previous decision of the court is not subject to review at this time as the plaintiff acquiesced in the previous judgment of the court by filing his amended petition. Therefore, the amended petition should be stricken from the files as herein prayed for.”
After due consideration the trial court, on April 12, 1958, found that the motion to strike the amended petition should be sustained for the reasons set foith in such motion and entered its order accordingly. Thereupon plaintiff perfected the instant appeal by giving notice he was appealing from the findings, orders and judgment rendered by the district court on April 12, 1958, and from any and all other adverse rulings.
Appellant’s claim the trial court erred in sustaining the demurrer to the petition, on the ground it failed to state a cause of action, should be disposed of at the outset. That ruling was an appealable order (G. S. 1949, 60-3302; Standard Steel Works v. Crutcher-Rolfs-Cummings, Inc., 176 Kan. 121, 269 P. 2d 402). No appeal was taken therefrom within the time prescribed by G. S. 1949, 60-3309, and error with respect thereto is not specified in the involved notice of appeal. In that situation it is clear that, under our decisions, such ruling is not subject to appellate review. (See Kerr v. Carson, 133 Kan. 289, 291, 299 Pac. 929; Hamill v. Hamill, 134 Kan. 715, 717 8 P. 2d 311; Rodenberg v. Rodenberg, 149 Kan. 142, 143, 86 P. 2d 580; Lane v. Franco-Central Oil Co., 184 Kan. 789, 339 P. 2d 1; Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 639, 305 P. 2d 849; Hill v. Lake, 182 Kan. 127, 318 P. 2d 1050; Holmes v. Kalbach, 173 Kan. 736, 252 P. 2d 603; Daniels v. Wood Construction Co., 175 Kan. 877, 267 P. 2d 517; Schindler v. Ross, 182 Kan. 277, 283, 320 P. 2d 813.) It is equally clear that, under his notice of appeal, appellant is limited to review* of the order sustaining the motion to strike his amended petition from the files. ¡
At this point the force and effect to be given the ruling sustaining the demurrer to the petition, while disposing of the appellate issue here involved, may well be noted. Throughout the years this court has held that, unappealed from, such a ruling becomes the law of the case and must be treated as an adjudication the petition in question did not state a cause of action. (See, e. g., Hendricks v. Wichita Federal Savings & Loan Ass’n, 156 Kan. 124, 131 P. 2d 889; Turner v. Renton, 183 Kan. 97, 102, 325 P. 2d 349; Lane v. Franco-Central Oil Co., 789, 790, supra; McGee v. City of Kansas City, 184 Kan. 797, 799, 800, 339 P. 2d 2.) Moreover, it is committed to the rule that, unappealed from, such a ruling remains the law of the case in the absence of a changed ruling by tibe trial court or an amendment to the petition which materially affects the cause of action attempted to be pleaded. (Hendricks v. Wichita Federal Savings & Loan Ass’n, 126, supra.) In passing it may be stated that here the trial court made no change in its ruling on the demurrer.
Another claim advanced by appellant is that the court erred in its order of April 12, 1958, in using appellees’ motion to strike the petition from the files to test the sufficiency of the amended petition. The premise on which' this contention is based is fallacious and wholly unfounded. In the face of the reasons set forth in the motion and the trial court’s action, in sustaining such motion for the reasons therein set forth, it becomes apparent that tribunal, contrary to appellant’s position, gave consideration to and ruled on the motion in its true light, i. e., as a motion to strike the amended petition from the files on the basis its allegations were repetitious, contained no additional substantial facts which would affect the ruling on the original petition, and required it to either ignore its previous ruling or again, review and pass upon what it had already determined by that adjudication. By the same token it is obvious an additional argument made by appellant to the effect the trial court may have treated the motion as a demurrer in ruling thereon, thus making the question of the sufficiency of the amended petition subject to review in the instant appeal, lacks merit and cannot be upheld.
Nor can it be successfully argued, as appellant contends, that appellees did not make repetition one of the grounds for the sustaining of their motion to strike. Inherent in a claim of res judicata, present in the motion to strike and relied on by the trial court in its ruling sustaining the motion for the reasons therein set forth, is the proposition that the same question had been previously ruled on and decided under conditions and circumstances so similar in character that the trial court should not be required to again adjudicate it.
Moreover when faced by the trial court’s ruling sustaining the motion to strike for the reasons therein set forth, it cannot be denied, indeed we must assume, that tribunal based its decision on the premise that, in sustaining the demurrer to the original petition, it had previously determined and adjudicated such pleading failed to state a cause of action because the forfeiture provision in each of the lease assignments attached thereto created only a conditional promise to drill an oil well which would not support the cause of action therein attempted to be pleaded; and that, since the amended petition contained no additional material facts which would affect its prior ruling, it was not required to again pass upon what it had already determined by its previous adjudication.
Having established the manner in which the trial court treated the motion to strike, and the premises on which it based its ruling with respect thereto, we can now turn to appellant’s over-all claim to the effect that, under the confronting conditions and circumstances, the trial court committed reversible error in sustaining the involved motion. As we approach this question it may be stated that in this jurisdiction its decision does not require that we here plow any virgin field or announce new and startling principles of law.
In Fidelity Hail Ins. Co. v. Anderson, 172 Kan. 253, 239 P. 2d 830, while dealing with a like question, involving conditions and circumstances so similar that decision can almost be said to be a controlling precedent, we held:
“Where a demurrer has been sustained to a petition on the ground it fails to state a cause of action and the plaintiff files an amended petition containing allegations so similar they substantially repeat what was set forth in the original pleading a trial court does not commit error in sustaining a motion to strike the amended pleading from the files.” (Syl.)
And in the opinion said:
“There can be no doubt under our practice, except in cases where the statute of limitations has run in the meantime, a question not here involved, that a plaintiff who has failed to state a cause of action in his petition and has had a demurrer sustained thereto based upon that ground may file an amended petition so long as such pleading contains additional, substantial, material facts which would affect the result as against a demurrer. However, an entirely different rule prevails where — as here — a demurrer has been sustained to a petition and the plaintiff thereafter and notwithstanding the former ruling files an amended petition with allegations so similar they substantially repeat what is to be found in the earlier pleading and require the court to either again review and pass upon what it has already determined or ignore its previous ruling. In that situation the established rule is that courts in the exercise of their discretionary powers have the right to strike such pleading from the files and that in doing so they act properly and commit no error.” (p. 254.) (Emphasis supplied.)
The opinion in the above case is replete with authorities supporting what is there said and held. For drat reason, and to avoid burdening our reports with undue citation of authorities, we make pages 254, 255 and 256 of that opinion a part of this opinion by reference.
For a more recent decision of similar import see Farran v. Peterson, 181 Kan. 145, 150, 309 P. 2d 677. See, also, Rine Drilling Co. v. Popp, 184 Kan. 13, 19, 20, 334 P. 2d 426, where, as in the Farran case, Fidelity Hail Ins. Co. v. Anderson, supra, is cited with approval and the syllabus quoted at length.
Based on what has been heretofore stated and held we are satisfied (1) that the record presented establishes that the trial court sustained the demurrer to the original petition solely on the premise the forfeiture provision included in each of the assignments, attached to and made a part of that pleading, precluded appellant’s recovery for failure to drill a well, hence such pleading failed to state a cause of action; (2) that the only allegations added to the amended petition, i. e., of an oral release by the appellant of the restriction in the lease assignments of the location for the drilling site and the fact appellees had engaged in certain activities preliminary to actual drilling, did not affect or change the forfeiture provision contained in any of the assignments; (3) that, since they did not do so, such allegations failed to add any material facts to the amended petition which would affect the result as against a demurrer; and (4) that, for all practical purposes, the filing of the amended petition in form, as heretofore described, required the trial court to either again review and pass upon what it had already determined or ignore its former ruling.
Furthermore, in view of what has just been stated and for other reasons set forth at length in the opinion, we are convinced the rule, announced and adhered to in the decisions, to which we have last above referred, is applicable and that application thereof compels a conclusion the trial court did not commit reversible error in sustaining the motion to strike under the heretofore related conditions and circumstances.
In reaching the conclusion just announced we have not been unmindful of decisions relied on by appellant holding that under our code of civil procedure great liberality is allowed in the amendment of pleadings. Quite true. The difficulty, from his standpoint, in this case, is that in this jurisdiction it is well-established such rule is not to be extended to the point where — as here — the confronting conditions and circumstances are such they make it appear the purpose to be served by the filing of the amended pleading is to require the trial court to either again review or else ignore the unappealed from appealable order theretofore directly involved and determined.
Finally it should be stated, as we have heretofore pointed out, this appeal is limited to a review of the order sustaining the motion to strike the amended petition from the files. It follows we have no right to reach out and here determine questions raised by appellant, touching the sufficiency of the amended petition, which, in final analysis, seek to have this court review the propriety of the trial court’s order sustaining the demurrer to the original petition.
The judgment is affirmed. | [
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Per Curiam:
On December 18, 1967, appellant George Lee Szopenske, who had been charged with the first degree murder of a fellow inmate in the Kansas state penitentiary, entered a plea of guilty to the offense of second degree murder, and on December 22, 1967, was sentenced to a term of not less than ten nor more than fifteen years, the sentence to commence upon the expiration of the sentence appellant was already serving. Appellant and his counsel accepted the court’s sentence without complaint. No appeal was taken.
On February 6, 1973, appellant filed a 60-1507 motion alleging (1) that the county attorney, at the time of his sentencing, failed to abide by a plea agreement reached with appellant’s counsel that appellant would receive a lighter and concurrent sentence, and (2) that his counsel did not advise him that the state’s evidence was insufficient to prove first degree murder, and therefore his plea was involuntary because it was entered under an unwarranted fear of capital punishment. Following an evidentiary hearing, the trial court concluded no plea agreement had been entered or breached and that appellant’s plea was voluntarily entered. His motion to vacate the sentence imposed was denied. The appeal is from this ruling.
The only evidence of a plea bargaining agreement was the testimony of the defendant and his codefendant, which was vague at best. Whatever probative value it may have had was considerably weakened by the fact that nearly five years had gone by since the guilty plea was entered, without any complaint having been made in all that time of a breach of any agreement. Furthermore, the county attorney at the time of the plea and the attorney who represented the defendant were available to be called as witnesses. Failure to call either of them raises a presumption they would not have supported the appellant’s claim. In other words the evidence to support appellant’s contention was not of such quality as to require the trial court to accept it and the court did not err in finding against the appellant on this point.
As to the second point the record is completely barren of anything to support the allegation that the state had no evidence to support its charge of first degree murder. The complaint that the appellant was denied due process of law by the failure of the state to assure him that it had no evidence to justify a fear of the death penalty is wholly without merit.
Judgment affirmed.
Fromme, J., not participating. | [
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Per Curiam.
Affirmed.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for a sum alleged to be due on a contract of employment breached by defendant. The trial court directed a verdict for plaintiff. Defendant has appealed.
In the third amended petition, on which the trial was had, it is alleged that plaintiff .is a building contractor, working particularly in brick, cement and stone; that defendant owns a farm on which he desired to have new improvements and repairs to old improvements made; that on December 4, 1928, they entered into the following contract in writing:
“For and in consideration of 8500 to be paid when work is completed, Lafe Haskell agrees to do the following work for M. D. Stryker on his farm on the northeast quarter of section 23, township 30, range 14, Wilson county, Kansas:
“Build a bam 60 x 32 and 12 feet high. Walls are to be laid of hollow tile from foundation and bottom of the floor up with cement floor over all inside space. Water tank — 25 feet clear, 5 feet above and 2 feet below the ground, 1 foot foundation with cement floor, plastered inside and out. Porch wall 14 x 16 x 3 feet high and cement floor on the southeast side of the house. Porch — 24x5x3 feet wall; cement floor on the north side of the house. Porch — 10 x 16 feet wall and foundation only on the southwest side of the house. Sixty feet of 30-inch sidewalk from house to front gate. House foundation repaired and stuccoed one foot down from sill all around.
“Stryker to furnish all material and help; Haskell to do all mason and finishing work, all work to be done in good workmanlike manner.”
It further alleged that by this contract defendant was to furnish all material and labor necessary, except the mason work in laying the tile and the finish work on the concrete, in the erection of said building and work, and plaintiff was to furnish his knowledge and skill as a building contractor and cement worker in the overseeing and superintending of the work, and was to lay the tile and direct the help in setting the forms for the cement and do the finish work on all concrete. It further alleged that plaintiff fully carried out and performed the contract on his part, except where changes were made at the request of defendant, and except the putting in of the cement floor for the barn and the construction of the water tank, which he was prevented by defendant from doing; that about September 26,1929, defendant, without just cause, ordered him to cease further work; that he was then and at all times since has been ready and willing to complete the work provided for in the contract. The prayer was for judgment for $500 with interest since September 26, 1929.
Defendant’s answer contained a general denial. It admitted the execution of the instrument of December 4, 1928, but alleged that it was abandoned and that thereafter, in August, 1929, the parties had an oral agreement by which plaintiff was to work at 75 cents per hour and was to furnish his own crew of laborers, which defendant would pay, but only such improvements would be built as defendant might direct; that plaintiff was to furnish defendant weekly statements as to his own labor and that of other persons employed; that pursuant to such oral agreement, and using the dimensions of structures and improvements as described in the memorandum of December 4, 1928, as a guide, some of the work was done; that in several instances plaintiff departed from the dimensions of the structures, and that plaintiff’s workmanship was inferior, to defendant’s damage, and that by reason thereof defendant refused to continue the construction of improvements; that defendant has paid for all labor and services performed by plaintiff personally, or other persons employed by him, so far as statements have been furnished; that if any such labor has been performed for which payment has not been made plaintiff has refused to furnish statements thereof, although requested by defendant to do so. The prayer was that plaintiff take nothing by his action and that defendant have judgment for damages in the sum of $250.
When the action was called for trial defendant objected to the introduction of any testimony for the reason that the petition alleged a contract, but did not allege performance of it by plaintiff; but, on the other hand, the allegations showed that there had not been full performance. This objection was overruled.
Plaintiff testified that he was not to “build a barn 60 x 32 and 12 feet high,” as the contract provided, but that all he was to do in constructing the barn was to begin, after the 'foundation had been put in, and lay the walls of tile 12 feet high, with proper openings for doors and windows, and to finish the cement floor which was to be put in. He testified:
“There was nothing in the contract that I was to build the barn. I built the walls of the barn. I built part of the foundation. He (Stryker) paid me for that. I built all the rest of the wall, and that was all I was to do for the barn. . . . My contract was to take this from the foundation up.”
Obviously his conception of what he was to do on the bam was much short of what the contract provided by its terms. To build a barn is certainly to do more than to lay up the side walls. Plaintiff further testified that the talk between the parties before the contract was written was that he was to do the mason work, finish the cement after it had been laid, and supervise all of the work that was to be done, but conceded that nothing was said about that in the contract on which suit was brought. It developed, also, from his testimony that at the time the contract was entered into defendant expected to be able to make arrangements with his tenant on the farm to do the common labor about the improvements, but was unable to make that arrangement, and nothing was done for more than six months, under the contract. The matter was taken up anew in August, 1929, when a different arrangement was made by which plaintiff was to take men who were working for him and do the work. It also developed that the work done, while most of it followed the general outline of the work to be done by the contract of December 4, 1928, differed from it in material particulars and included other work not mentioned in that contract; also, that a part of the work done by plaintiff was defective, and that only a part of the work — perhaps half of that outlined by the contract of December 4 — had been completed when defendant told plaintiff he would not do any more of the improvement work. At the close of plaintiff’s evidence defendant demurred thereto. The demurrer was overruled. Defendant stated he did not desire to introduce evidence, but would stand on his demurrer. Thereupon the court directed a verdict for the plaintiff for the full amount claimed.
On behalf of the appellee it is argued that in ruling on the demurrer the court was bound to take into consideration all the evidence and the inferences which might reasonably be drawn therefrom favorable to plaintiff. That is true, but, considering the evidence in the most favorable light for plaintiff, it falls far short of showing that plaintiff was entitled to recover the full amount claimed. The contract sued on specifically provided that the $500 was “to be paid when work is completed.” It is conceded that the work was not completed, hence plaintiff is not entitled under the contract to recover the full amount.
Appellee argues that when one is employed for a definite length of time at a fixed salary for the term or by the month, or is employed to do a definite amount of work for a fixed sum, and is wrongfully discharged before the term of the employment ends, or before the work contracted for is completed, he is entitled to the full payment if he was ready, able and willing to continue and complete the term of employment or the work contracted. On this point he cites and relies on Hess v. Bank, 106 Kan. 701, 189 Pac. 919, syl. ¶ 3, apparently overlooking the fact that the opinion discloses (p. 703) that no objection was made to the measure of damages based on the amount of the salary for the balance of the term. The contention made by appellee is incorrect. When one is employed for a definite term at a fixed salary for the term, or by the month, and is wrongfully discharged, it is incumbent upon him to use all proper means and be diligent in his efforts to obtain other employment or do other work for the balance of the term, so as to minimize his damages. The matter is quite fully discussed in Griffin v. Oklahoma Natural Gas Corp., 132 Kan. 843, 297 Pac. 662, where one who was employed for a term, at a salary of $250 per month, was wrongfully discharged. A number of earlier decisions are reviewed, and it was said:
“The result of the foregoing is that breach of contract of employment is to be redressed as injuries in other relations are redressed.” (p. 848.)
That is to say, that one who recovers damages must show that he is injured. No showing of that kind was made in this case, nor was it attempted to be made. Actions for damages arising out of varied relations of parties have caused rules with respect to the measure of damages to be laid down applicable to the specific relation presented to the court. The fundamental principle underlying all of them is that one may recover for damages actually sustained, but for no more. Were plaintiff’s suit framed as an action for damages for the breach of a building contract the rules for the measure of damages outlined in McGrew v. Investment Co., 106 Kan. 348, 187 Pac. 887, and Chastain v. Greene, 121 Kan. 742, 250 Pac. 264, perhaps would be applicable. But plaintiff did not so frame his cause of action.
It is clear from what has been said that plaintiff’s evidence did not support the cause of action alleged in his petition, neither were the elements of damages to which the plaintiff might have been entitled brought out by the testimony. The result is that defendant’s demurrer to plaintiff’s evidence should have been sustained.'
The judgment of the court below is reversed with directions to sustain the demurrer to the evidence. | [
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The opinion of the court was delivered by
Burch, J.:
In an action prosecuted under the workmen’s compensation act as it existed previous to 1927 judgment was rendered against the employer. An appeal to this court was dismissed. After the time for filing a petition for rehearing had expired, and after the mandate of this court had been transmitted to the district court and had been spread of record there, an application to file a petition for rehearing was filed, and was denied. The employer then filed a motion in the district court to set aside the judgment as void. The motion was denied, and the employer appeals. The single question is whether the district court had jurisdiction to render the judgment.
Previous to June 30, 1927, the workmen’s compensation act permitted civil actions to recover compensation. On that date a new act took effect, under which a proceeding to obtain compensation is administrative, with a limited appeal to the district court. In this instance the accident occurred on September 30, 1926, while the old law was in force. The workman’s death occurred on November 7, 1927, after the new law became effective. The action was commenced pursuant to the old law on August 30, 1928, and proceeded regularly to judgment. In the opinion disposing of the appeal from the judgment appears the following statement:
“By what appears to be the greater weight of authority, and certainly by the better reasoning, the cause of action for compensation for the death of a workman arises from the death and not from the injury which eventually results in the death. (Citing cases.)” (Frary v. Roxana Petroleum Corp., 132 Kan. 854, 855, 297 Pac. 668.)
The statement was correct, but it was not available to the court as a basis of decision because the subject was governed by statute.
The original workmen’s compensation act provided as follows:
“The cause of action shall be deemed in every case, including a case where death results from the injury, to have accrued to the injured workman at the time of the accident; . . .” (Laws 1911, ch. 218, § 37.)
In 1917 the section was amended to read as follows:
“The .cause of action shall be deemed in every case, including a case where death results from the injury, to have accrued to the injured workman or his dependents or legal representatives at the time of the accident; . . .” (Laws 1917, ch. 226, § 21; R. S. 44-535.)
A similar provision, adapted to the present nature of the compensation proceeding, appears in the new law (R. S. 1930 Supp. 44-535). The 1917 statute, and the recognition of it in the opinion in Routh v. List & Weatherly Construction Co., 124 Kan. 222, 224, 257 Pac. 721, were not present in the court’s mind when the quoted statement was made, and were not called to attention until the case had passed beyond the court’s control.
When the workman died in November, 1927, the separate cause of action in favor of his dependents accrued, by relation, for purpose of action, at the date of the accident in 1926; and the old law remedy by action, which included appeal according to the civil code, was saved by a provision of the new law. (R. S. 1930 Supp. 44-505.)
The decision in the case of Frary v. Roxana Petroleum Corp., 132 Kan. 854, 297 Pac. 668, is overruled.
The district court had jurisdiction to render the judgment, and the ruling denying the motion to set the judgment aside is affirmed. | [
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The opinion of the .court was delivered by
Johnston, C. J.:
This action was brought by plaintiff to recover damages from defendants alleged to have resulted from a collision between plaintiff’s automobile and defendants’ truck occasioned by defendants’ negligence. The jury found in favor of plaintiff, fixing the amount of his recovery at $1,700. Defendants appeal, and their only complaint is that the facts found by the jury in answers to special questions and in the verdict are not supported by the evidence, and they also urge some objections to the instructions given or refused by the court.
Plaintiff challenges the right of defendants to a review of the record presented because the evidence on which the alleged errors depend has not been preserved as the law requires, in that no official transcript of the evidence has been obtained and presented and that in its absence there is nothing the court can consider. Parts of the evidence were printed in the abstract, but it is conceded that much of the evidence is not preserved. Defendants say that the absence of an official transcript does not necessarily defeat an appeal and that they have presented evidence which they deem to be controlling, and further that the evidence omitted would not support plaintiff’s theory of the case or justify the jury in the findings and verdict returned. It may be granted that a transcript of the evidence is not essential where the error relied on is that the petition does not state a cause of action, or does not warrant the judgment rendered, or that the special findings are contrary to the verdict, or that the agreed facts do not justify the judgment rendered. The evidence is not required, of course, where the parties agree that certain evidence stated is all that related to a challenged finding, and still other questions not dependent on the evidence may be reviewed without bringing up a full transcript of the evidence; but where the errors assigned depend upon the evidence, the appellant must obtain an official transcript of the evidence or an agreement of the adversary that the case may be submitted and considered on the evidence stated, which the parties concede is all the evidence touching the question in controversy.
As the errors assigned by the defendants involve an examination of the evidence upon which the findings are based, and there being no transcript or agreement that the case may be reviewed on a part of the evidence, the challenge of the plaintiff must be sustained. In Typewriter Co. v. Andreson, 85 Kan. 867, 118 Pac. 879, it was held that—
“It devolves on the party taking the appeal to procure from the official stenographer a certified transcript of his notes of the evidence and proceedings, or as much as is material to his appeal, and to have the same made a part of the record. The opposing party then has an opportunity to test the correctness of the transcript, as it is subject to amendment and correction by the trial court or judge. (Civ. Code § 574.) If the evidence and proceedings are not so preserved the appellee has no way of testing the correctness of that which is abstracted by appellant, and in case of a challenge of the abstract of evidence in this court it would have no means of determining whether that which was abstracted was the evidence in the case or that there was not other evidence material to the point upon which error was assigned.
. . . Without a certified transcript or an agreement of parties as to what evidence was offered and received the court cannot consider its sufficiency or other questions arising on it. The material questions in this case arise on the evidence and, therefore, are not available to appellant.” (pp. 867, 868.)
In Everett v. Everett, 110 Kan. 442, 204 Pac. 723, it was held that—
“To obtain a review of questions depending on the evidence it devolves upon the appellant to procure an official transcript of all evidence affecting the determination of such questions, and where he fails to procure such transcript his appeal will be dismissed.” (Syl.)
See, also, Readicker v. Denning, 86 Kan. 79, 119 Pac. 533; Davidson v. Timmons, 88 Kan. 553, 129 Pac. 133; Spencer v. McClenney, 104 Kan. 107, 178 Pac. 253; Caldwell v. Skinner, 105 Kan. 32, 181 Pac. 568.
The objections of defendants to instructions given and reviewed are for like reasons unavailable here. Since the pertinent evidence is not before us we cannot determine whether an instruction, although abstractly correct, was applicable to the facts or whether the giving of an incorrect one was prejudicial error, as only that which is prejudicial is ground for reversal. (Woodford v. Light Co., 77 Kan. 836, 92 Pac. 1133; Roman v. City of Leavenworth, 95 Kan. 513, 148 Pac. 746.) It may be added by way of parenthesis that the examination of the record, and the reading of the evidence which the defendant chose to bring up, does not in our view disclose material error in the judgment.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Sloan, J.:
This was an action to recover damages for the wrongful death of a person. The plaintiffs prevailed, and the defendant appeals.
The defendant operates a street-car system in the city of Pitts-burg, which extends north of the city limits on the public highway for a distance of approximately one-half mile. The street-car track is in the middle of the public highway, and on either side of the track there is a brick pavement sixteen feet wide. The space between- the pavement in which the track is located is nine feet wide. This is filled with chat extending over the ties and along the rails of the track. On Saturday night, December 14, 1929, at about 8:40, Claude Briggs, an employee of the defendant, was operating what is known as a one-man street car over the track above described when a collision occurred between the street car and an automobile driven by the deceased about a quarter of a mile north of the city limits of Pittsburg. The road and the track for a distance of several hundred feet on either side of the place where the collision occurred was straight and the slope was from the south to the north. The night was dark and foggy, visibility was poor and the pavement and rails of the track were wet and slick. The street car had a light in front, and the inside of the car was lighted. The light was visible for 600 or 700 feet. The deceased, Dominic Canestro, a young man nineteen years of age and a son of the plaintiffs, was driving south in a Ford automobile on the west strip of the pavement. He was driving behind two other automobiles. When about 350 feet north of the street car he drove on to the street-car track to pass the automobiles. He was driving at about forty-five miles an hour with the left wheels of his car between the rails and the right wheels on the pavement. When the motorman saw the automobile coming he threw on the air brake to its full capacity, blew the whistle on the car and threw it into reverse. The automobile continued its course on the street-car track, resulting in the collision. The automobile was thrown to the west for a distance of about fifteen feet, where it struck a pole, and was badly damaged. The driver, Dominic Canestro, was killed.
There was evidence tending to show that the roadbed of the streetcar track was covered with loose chat; that the chat was uneven and bumpy, containing holes, some of them five or six inches deep; that the rails and the pavement -were, in some places, three inches or more higher than the chat filling between the rails, and that the imprint of an automobile tire was visible along the side of the rail for a distance of about thirty feet. On the other hand, there was evidence consisting of photographs and other testimony to the effect that the roadbed was in good condition. The eyewitnesses to the collision testified in substance that the deceased made no effort to get off the track; that there was no indication of the rail preventing the automobile from being driven back on to the pavement, and that the deceased did not reduce his speed before striking the street car. The jury returned a general verdict in favor of the plaintiffs and made special findings, as follows:
“Q. 1. How many feet was the automobile which was being operated by Dominic Canestro from the street car at the time that Canestro turned such automobile on the street-car track? A. 350 feet.
“Q. 2. How many feet did Dominic Canestro drive the automobile after turning it on the street-car track before the collision of the automobile and street car occurred? A. 200 feet.
“Q. 3. How many feet was the street car run after the motorman applied the emergency brake on the street car before the collision between the automobile and street car occurred? A. 50 feet.
“Q. 4. At what rate of speed per hour was Dominic Canestro operating the automobile 200 feet from the place of collision? A. 40 or 45 miles per hour.
“Q. 5. Did Dominic Canestro slacken the speed of the automobile after he drove the automobile on the street-car track and before the collision between the street car and the automobile? A. Don’t know.
“Q. 6. At what rate of speed per hour was Dominic Canestro operating the automobile at the time of the collision between the automobile and the street car? A. Don’t know.
“Q. 7. At what rate of speed per hour was the street car being operated at the time of the collision? A. 10 miles per hour.
“Q. 8. How many feet did the automobile in which Dominic Canestro was riding travel after the collision of such automobile with the street car and before such automobile was stopped by the pole? A. 15 feet.
“Q. 9. How many feet did the street car travel after the collision of the automobile with the street car? A. About 40 feet.
“Q. 10. If you find the defendant guilty of negligence causing the death of Dominic Canestro, state the act or acts of negligence of which you find the defendant guilty. A. Roadbed dangerous and unsafe.”
Judgment was rendered in accordance with the general verdict, and the case is properly here for review.
The appellant assigns as error the court’s ruling on the motion for a judgment notwithstanding the general verdict. It contends, first, that the evidence and the findings of the jury do not show that the alleged condition of the roadbed was the proximate cause of the injury, and, second, that the evidence and findings of the jury show that the deceased was guilty of negligence contributing to his injury and death.
It was alleged in the petition that the appellant negligently and carelessly permitted its track and roadbed to become and remain dangerous and unsafe, in that it allowed the chat to be so worn away that the rails protruded above the level of the highway, and such condition was the direct and proximate cause of the injury. It was also alleged that the motorman by the exercise of reasonable and proper diligence could have stopped the street car and avoided the collision. This allegation of negligence is eliminated and the motorman is exculpated by the finding of the jury that the negligence of the appellant was “roadbed dangerous and unsafe.” The only evidence which in any way tends to connect the condition of the roadbed with the accident is the testimony of Steve Salina, who testified that he reached the scene of the accident shortly after it occurred and before the deceased had been taken from the automobile, and that he examined the rail south of the street car with a flash light.
“Q. And did you make any examination of the rail itself along at the point of the accident and prior to the point of the accident — the rail of the streetcar company? A. Yes, sir. It was foggy that night and there was moisture on the ground and rails.
“Q. Just tell us what you saw on the rail itself, Mr. Salina — you have told us that your opinion was — tell what you saw. A. I saw tire tracks, where it had slid right up against the rail.
“Q. And for how long a period did this imprint continue, Mr. Salina? A. Some 30 feet.”
The motorman testified as follows:'
“When I was going down this hill, I saw a car turn out on to the roadbed. There were two automobiles between my car and this automobile when it pulled out on the track, I should judge around 300 or 350 feet away. The first car was about 250 feet from the street car when he pulled out. The second car was between the first car and the car that turned out. I should judge the second car was 40 or 50 feet from the first car, the car that turned out to pass these two cars. He had plenty of time to get back on the paved stretch of the highway. He never made an effort to get back. When you see a car coming right straight at you, astraddle of the rail, you could see whether it would deviate one way or another. I could have told if he was trying to turn out. I could see both front wheels on his car. The lights on his car were burning. When he passed the first car, I should judge he was 200 feet from me. The night was a moonlight night — it was dark because it was cloudy. I stood in my car and could see that the wheels of this car (Canestro’s) weren’t stuck or entangled with the rails.”
The jury apparently accepted the testimony of the witness, Salina, and from this evidence concluded that the deceased was unable to turn his car off the track for the reason that the roadbed was lower than the rail. There is no testimony, however, that the tire on the automobile showed any indications of having rubbed against the rail, nor is there any testimony of any disturbance of the chat. In view of the position of the automobile passed by the deceased, the rate of speed the jury found he was traveling and the condition of the roadbed as shown from the photographs, the evidence is not at all convincing that the condition of the roadbed was the proximate cause of the injury. The finding of the jury is, of course, binding on this court when approved by the trial court, if there is any substantial evidence to support it. The burden, however, was on the appellees not only to show that the appellant was negligent in some particular, but it must also appear that the negligence in some way contributed to and was the proximate cause of the injury. The rule is well established by this court that negligence may be proven by circumstantial evidence, but the circumstances must be of such a nature and so related to each other that it is the only conclusion that can reasonably be drawn from them. A fact is not proven by circumstances which are merely consistent with its existence. (Byland v. Powder Co., 93 Kan. 288, 144 Pac. 251; Cash v. Oil Refining Co., 103 Kan. 880, 176 Pac. 980; Lukens v. Kellogg, 127 Kan. 568, 274 Pac. 225.)
We pass the question of appellant’s negligence with the remark that it is exceedingly doubtful whether a case of actionable negligence was* made out, and take up the second assignment of error that the deceased’s negligence contributed to his death, which, we hold, is decisive of the case.
The jury appear to have accepted the testimony of the motorman with reference to the location of the cars and the rate of speed at which they were traveling. When the deceased turned his automobile on the street-car track he was 350 feet from the street car. He was- traveling between 40 and 45 miles an hour. The street car was clearly within the range of his vision and he must be charged with having seen it. The second car which he was attempting to pass was about 100 feet south of him, or 250 feet north of the street car. The street car was traveling down grade. The motorman immediately applied his brakes and when the collision occurred he was traveling ten miles an hour. The jury was unable to find whether the deceased slackened the speed of his automobile before the collision. The fair inference is, from all the surrounding circumstances, that the deceased did not slacken his speed.
It is the duty of the traveler, as far as he reasonably can, to keep off the street-car tracks, but he is not obliged to do so. The rights of the automobile traveler and the street-car company in the use of a highway, such as described in this case, are equal, but with this limitation, the street car cannot quit its tracks and turn out in order to pass the traffic, the traveler must turn out for it. (Railway Co. v. Rouch, 66 Kan. 195, 71 Pac. 257.) This court has made a distinction between the duty and responsibility of a traveler approaching a railroad track and a street-car track. It said:
“. . . In the case of the railroad the traveler is never regarded as exercising reasonable caution if he loses in a race with the train to the crossing. He is required to yield it the right of way and not undertake to cross until it has passed. But one who sees a street car approaching may properly cross the track if under all the circumstances it is reasonable to suppose.there is time for him to do so in safety. . . .” (Ogden v. Wilson, 120 Kan. 269, 271, 243 Pac. 284.)
■ The street-car track was a warning of danger (Galloway v. Interurban Railway Co., 97 Kan. 110, 154 Pac. 236), and the deceased must be charged with knowledge that the track was wet and slick; that the street car was coming down grade; that the space between the rails was not paved, but filled with chat; that the street car would not deviate from its course, and that if he was on the track the only thing that could avert a collision was the stopping of the street car. He was traveling on a sixteen-foot pavement, and voluntarily left a place of safety and assumed a position of danger to pass a car which was then 100 feet ahead of him. The rate of speed at which this car was traveling is not established, but in any event he would be compelled to travel considerably more than 100 feet before he.could pass the car and return to a place of safety.
Appellees cite the case of May v. Kansas Power & Light Co., 134 Kan. 470, 7 P. 2d 108, recently decided by this court, but that case has no application to the case under consideration. There the accident did not happen because the plaintiff drove upon the street-ear track in front of an approaching car; it happened because the automobile was caught in a rut beside the rail of the track and the motorman was negligent in failing to stop the street car, which he had an opportunity to do, and avoid the collision. In this case the motorman is exonerated. He was not negligent.
. • Appellees cite the case of Collins v. State Highway Comm., 134 Kan. 278, 5 P. 2d 1106, in which it was said that a pitfall in a shoulder adjoining or even adjacent to the slab may constitute a defect in the highway. In that- case, however, the driver of the car left the pavement to avoid a danger. He did not voluntarily enter upon a place of apparent danger.
The court is convinced, under all 'of the circumstances of this case, that the deceased’s negligence contributed to his injury, in that he failed to use the care of an ordinary, prudent person in the use of the public highway and voluntarily entered upon a place of danger with full knowledge of all the attending dangers incident thereto. Had he waited but a few seconds he could have accomplished his purpose in safety. This was not only his duty, but common prudence. It has been repeatedly held by this court that persons may not recklessly place themselves in a place of danger and then recover damages because of injuries resulting thereby. (Limb v. Railroad Co., 73 Kan. 220, 84 Pac. 136, and cases there cited; Fair v. Traction Co., 102 Kan. 611, 171 Pac. 649; Gaffney v. Railway Co., 107 Kan. 486, 192 Pac. 736.)
The judgment of the district court is reversed and it is directed to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory note. The action was commenced by Weaver & Bill, the payees thereof, against Caroline Schafer, the maker thereof, before a justice of the peace. The defendant in her bill of particulars admitted the execution of the note, but alleged that she had paid the same, and that she held a receipt for such payment. Trial was had before the justice and a jury, and a verdict and judgment were rendered in favor of the plaintiffs and against the defendant for $173.63, and costs. The defendant then appealed to the district court. In the district court another trial was had, or rather commenced, before the court and a jury. 'The record discloses the fact that the plaintiffs introduced evidence; but why they introduced evidence, or what this evidence was, the record does not disclose. After the plaintiffs had introduced this evidence, and rested, the defendant demurred, upon the ground that “said testimony is insufficient in law to sustain their action.” The court below sustained this demurrer, and then on application of the plaintiffs dismissed their cause of action without prejudice.
We do not understand why the plaintiffs should have introduced any evidence. Upon the pleadings, if no evidence had been introduced, the judgment should have been rendered in their favor. The plaintiffs’ cause of action was admitted by the pleadings; but the defendant proposed to show that such cause of action, after its creation, had been discharged by payment; and upon the defendant^ rested the burden of .proof. But the plaintiffs nevertheless introduced evidence. And what this evidence could have been, which was so powerful' as to overcome the plaintiffs’ prima fade case, so potent as to disprove their admitted cause of action, so strong as to overturn their prima fade right to recover, we are at a loss to know. Possibly the plaintiffs kindly furnished the defendants with the required evidence to prove that the defendant had paid the note. Possibly they did not choose to accept the unsolicited admissions of the defendant ,- and then, with an over-generous kindness, furnished their adversary with ample proof to show that the note had never in fact been given, or that it was given without any consideration, or that the plaintiffs did not- own the note, etc., etc. But whatever may have been the evidence, it would seem from the ruling of the court below that it was strong enough to overturn the plaintiffs’ original right to recover, if judgment had been rendered upon the pleadings alone.
The only ruling of the court below complained of by the plaintiff in error, defendant below, is the rendering of said judgment dismissing the plaintiffs’ action without prejudice. The plaintiff in error claims that the judgment should have been one that would be final and conclusive between the parties ; that it should have been one that would forever afterward bar any action on said promissory note. This kind of judgment would unquestionably be highly beneficial to the plaintiff in error, for it is not at all likely that the plaintiffs below would ever again be so kind as to furnish their ad ver-' sary the necessary evidence to defeat their own action. Did the court below err in dismissing the plaintiffs’ action without prejudice? We think not. The action of the court in such cases rests almost entirely within the sound judicial discretion of the court; and unless the supreme court can see that the trial court has abused its discretion, no reversal can be had. Where a demurrer to evidence is submitted to the court, the submission is only conditionally final. It is final upon the condition that the court shall sustain the demurrer, and shall not in its discretion choose to reopen the case for the admission of other evidence, .or for the dismissal of the action without prejudice. (St. Jos. & D. C. Rld. Co. v. Dryden, 17 Kas. 278, 280, et seq.; K. P. Rly. Co. v. Couse, 17 Kas. 571, 572.) If however the court shall overrule the demurrer, or if the court in its discretion shall reopen the case for the admission of evidence, or for the dismissal of the action without prejudice, then the submission is not final, or at least the action of the court thereon is not final. According to the decisions above cited, a party against whom a demurrer to evidence has been sustained cannot as a matter of right claim to have the case reopened for the introduction of additional evidence, or for the dismissal of the action without prejudice. So far as his rights are concerned, the decision is final; but still he may appeal to the discretion of the court. It would be a bad law that would so tie the hands of a trial court that it could not in any case reopen the case after sustaining a demurrer to evidence. Injustice would often be done to parties through the carelessness, oversight, inadvertence, or incompetency of their counsel. It would also be a bad law that would allow parties to experiment with the court, by waiting until the court should render its decision on a demurrer to evidence, before asking to be allowed to introduce additional evidence, or to dismiss the action without prejudice. Hence the court should be allowed a broad and extended discretion in the matter. It will be noticed that no judgment was ever rendered upon the demurrer in this case; that as soon as the court announced its decision upon the demurrer, the plaintiffs asked to dismiss their action without prejudice, and that the court permitted them to do so, and that the only judgment rendered in the case by the court below was the one dismissing the plaintiffs’ action without prejudice, and for costs. The plaintiff in error relies upon the following statute, to-wit:
“The party on whom rests the burden of the issues, must first produce his evidence; after he has closed his evidence, the adverse party may interpose and file a demurrer thereto, upon the ground that no cause of action, or defense, is proved. If the court shall sustain the demurrer, such judgment shall be rendered for the party demurring, as the state of the pleadings, or the proof, shall demand.” — [Laws of 1872, page 329, § 1, sub. 3.
In the present case the party on whom did not rest the burden of the issues first produced their evidence, and then the party on whom did rest the burden of the issues demurred. And if it was a fact “ that no cause of action or defense ” was “proved,” as the defendant must necessarily claim under this statute, and under their demurrer, then the only judgment that could have been rendered in the case, upon the “pleadings” and “the proof,” would have been a judgment in favor of the plaintiffs below for the full amount of their claim. No judgment could have been rightfully rendered for the defendant under such circumstances. There is no statute prohibiting dismissals such as we are now considering. And the only statute that we think has any application thereto reads as follows:
“An action may be dismissed, without prejudice to a future action: first, by the plaintiff, before the final submission of the case to the jury, or to the court where the trial is by the court.” — [Gen. Stat. 704, sec. 397.
Now, is the submission of a demurrer to the court, in an action being tried by a jury, a final submission of the case “to court, where the trial is by the court?” And if not, may not the plaintiff, at any time before the final judgment upon the demurrer, dismiss his action without prejudice? But, as we have already stated, the “submission” in such a case, is never an absolutely “final submission of the case.” The finality of the “submission of the case” always depends upon whether the demurrer shall be sustained or not, and probably also upon whether the court shall in its discretion render a 'judgment upon the demurrer, instead of reopening the case for additional evidence, or for a dismissal of the action without prejudice.
The judgment of the court below will be affirmed.
Brewer, J., concurring. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to recover money. Judgment was for defendant on a cross petition. Plaintiff appeals.
Appellant operated a chain of oil and gas stations in Kansas. Appellee was conducting a bulk station for appellant at Selden. The contract of employment was a written one. The business was handled by appellant shipping gasoline and oil to appellee. He put it in tanks and sold it to customers. About once a month an auditor would come to Selden and check up on appellee. In case he found that there was not as much gasoline on hand as the records showed there should be, the shortage was charged to appellee: Soon after the employment of appellee started, this auditor found a shortage each time he checked this particular station. Appellee insisted that the shortage was due to leaky tanks. After some time a test was made by locking the tanks up. This test disclosed that the tanks had been leaking. They were dug up and found to have holes and sprung seams in them. It was out of the attempts on the part of appellee and representatives of appellant to adjust the charges that had been made against appellee on account of these alleged shortages that this case grew.
The petition of appellant alleged the employment and that appellee then had a certain amount in his hands which he had collected from the sale of the products of appellant. Appellee answered admitting that he held this amount of money, but alleged that he was entitled to commission on that amount; that he was entitled to a stated amount for hauling gasoline from Oberlin to Selden while his tanks were locked up;-that he was entitled to an amount for unauthorized credits which he had been unable to collect and which he had paid to appellant and which appellant had not reassigned to him; and that he was entitled to a named amount on account of money which he had been compelled to pay appellant on account of shortages that were later discovered to have been caused by the leaky tanks. The basis of the claim was that an agent of appellant had admitted the correctness of these claims, but had induced appellee to forego his right to them in return for the privilege of delivering products of appellant from the station at Selden to two stations of appellant at Hoxie, The answer alleged that appellee had entered upon this contract and had delivered the gas to the stations at Hoxie for about two years when appellant deprived him of this business. Appellee offered to offset so much of his claim as would satisfy the sum which he admitted owing appellant and asked judgment in addition in the amount of $429.70. The reply of appellant was a general denial of the allegations of the answer. The case was tried to a jury. A verdict for defendant in that amount was returned and judgment entered accordingly. From that judgment this appeal is taken.
The first error urged by appellant is that its demurrer to the evidence of appellee should have been sustained. This argument is based largely on the claim that the figures testified to by the witnesses do not figure out with mathematical correctness. We do not consider this argument good. Even if the figures testified to do not come out exactly right, there was sufficient evidence to warrant the trial court in submitting the issues to the jury.
The case was tried on the theory that appellee was entitled to recover certain amounts from appellant because it had compelled him to pay them wrongfully and that he was induced to forego the right to recover back these payments by being promised the right to deliver oil and ; gas to the stations at Hoxie, and that when this contract was taken away from him, he then became entitled to the repayment of the money, the right to recover which he had given up in return for that contract. The trial court admitted evidence and instructed the jury on that theory. Appellant urges that this was error. It argues that the contract of employment was written and that it contained a provision that it could not be changed by an oral contract and that the agreement by the agent of appellant that appellee was entitled to a return of so much money on account of payments which he had been forced to make was an oral contract which attempted to vary the terms of a written contract and was void under the terms of the written contract. We have concluded that this argument is not good. The contract relied on was not a change in the terms of the written contract of employment, but was the culmination of the efforts of all parties to adjust a difference that had arisen under the written contract. Adjustments of this kind are frequent, and necessarily so, else it would be too cumbersome to carry on business under a written contract.
The argument is made that the agent of the company who made the contract in question was not authorized to do so. The fact is, though, that he was sent out by the company to do the very thing he did in this case. The company received the benefit of what he did. It cannot now be heard to complain that what he did was unauthorized.
Appellant argues that the contract alleged by appelleé, whereby he was given the business of furnishing the gas and oil to the Hoxie stations for five years, was void under the statute of frauds. The fact is that appellee does not advance any claim based on a right to enforce that contract. He asks only that the consideration which he paid for this contract be returned to him. This he is entitled to.
As to the amount claimed by appellee as due him on account of unauthorized credits extended by him and paid by him to appellant and which appellee claims were not reassigned, appellant urges that appellee was not entitled to recover this amount in the absence of proof that the failure of appellee to reassign prevented him from collecting. This point is not good. Appellee was entitled to an opportunity to collect these accounts for his own benefit as soon as he paid them to appellant. It cannot be said that the failure of appellant to reassign at once did not of itself hamper appellee in the collection of these accounts.
There are other errors urged by appellant in its brief, but what has been said in this opinion disposes of them.
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by plaintiffs, the children of Laura E. Moore, to recover upon a certificate of insurance issued by the American Insurance Union, a' fraternal insurance society. They were defeated and have appealed.
Laura E. Moore became a member of the society on December 19, 1917, and there was then issued to her a certificate of insurance for $1,000 in which her husband, Levi L. Moore, was named as beneficiary. She paid all dues and demands made upon her by the society and complied with all the provisions of her contract until her death on March 22, 1929. She was shot and killed by her husband, the beneficiary in the insurance contract. He pleaded guilty to a charge of murder in the first degree and was sentenced to incarceration in the penitentiary. It is agreed by the parties that he killed his wife intentionally and feloniously, but not with the intention of obtaining insurance or pecuniary profit thereby. It is conceded that he could not inherit from the wife he murdered and therefore the plaintiffs, the children of Laura E. Moore, are her only surviving heirs. When Laura E. Moore became a member of the society and obtained the contract of insurance, there was in effect a law of the society which provided in terms that the death of a member by the hands of a beneficiary was a risk not assumed by the society and that no benefits of such would be paid under the certificate unless the beneficiary should prove to the satisfaction of the directors that the deed was not committed intentionally and with a desire to profit thereby. After Laura E. Moore became a member and before her death the law was changed relating to the death of a member by a beneficiary, but it still retained the provision that the death of a member by the hands of a beneficiary was not a risk assumed by the society. The amendment added to the provision that where there was more than one beneficiary and the death was caused by only one of them, it would not deprive the other innocent beneficiaries of their rights to their respective shares under the certificate. The certificate contained many provisions, among which was the exercise of options for limited payments under prescribed conditions, that a certain proportion of the insurance should be paid if death occurred within one year after the date of the certificate, and a certain other proportion in the event of death within two years. The following clause was then added:
“After two years from the date hereof, this certificate shall be paid in full and be incontestable except for felony or breach of warranty.”
The case was submitted upon agreed statements of fact from which the foregoing is derived, and on the agreed facts it was adjudged that there'was no liability of defendant to plaintiffs under the insurance contract. The effect of what is spoken of as the incontestable clause of the contract is the principal subject of controversy between the parties, and the plaintiffs urge that this is a case of defendant contesting that which is incontestable.
Defendant on its part is insisting that the killing of a member by the hands of a beneficiary was a risk not assumed by it and was expressly excluded from the conditions and coverage of the insurance contract. The provision as to the risks assumed and in force when the insured became a member of the union was:
“Death by hands of beneficiary. The death of a member by the hands of the beneficiary is a risk not assumed by this association, and no benefits shall be paid under any certificates in the life or health and accident departments to any such beneficiary, unless said beneficiary proves to the satisfaction of the board of directors that the deed was not committed intentionally and with the desire to profit thereby.”
In the amendment of this provision made before the insured was murdered by her husband, the beneficiary, it was changed to say:
“Death by hands of beneficiary. The death of a member by the hands of the beneficiary is a risk not assumed by the society, and no benefits shall be paid under any certificate in the life or health and accident divisions to any such beneficiary, or to any other person or persons. Should there be more than one beneficiary, the death of the member at the hands of one beneficiary shall not deprive the other beneficiaries of their rights to their respective shares designated in the certificates.”
It will be observed that in both the original and amended provisions it is recited that the death of a member at the hands of a beneficiary is a risk not assumed by the association. The exclusion of this risk from the contract was a matter which the member and the association had a right to make. It involved not only the protection, stability and life of the association, but also the protection of the life of the member, and was manifestly in furtherance of a good public policy. In the original provision making the exclusion they added a clause to explain that a death caused accidentally and innocently would not deprive the beneficiary of benefits under the contract, if he could prove to the satisfaction of the directors that it was not intentionally done and also that it was not done for pecuniary profit. In the amendatory provision the privilege of appealing to and satisfying the directors that the killing was innocently done was omitted, and in its place the clause was inserted that if there were two or more beneficiaries, one of whom killed the member, the other innocent beneficiaries would not be deprived of their share of the benefits.
It was competent for the association to make the amendment, and the insured in her application, which was a part of the contract, had covenanted and warranted that she would conform with the laws of the association then in force or which might thereafter be in force. This agreement was binding on her alike with other members, and the obligations under the contract must be determined by the amended law in force when the death occurred. It has been decided and is not now open to contention that such an amendment is reasonable and valid and therefore binding upon members. (Dey v. Knights & Ladies of Security, 113 Kan. 86, 213 Pac. 1066; Roper v. Columbian Circle, 113 Kan. 280, 214 Pac. 421; Guy v. Modern Woodmen, 128 Kan. 745, 280 Pac. 756.)
It is contended and ingeniously argued that the incontestable clause must prevail over the provision with reference to the killing of a member by a beneficiary and that the insurer is not permitted to contest the insurance for any reason other than those excepted in the incontestable clause, which were felony or breach of warranty. Of course, the incontestable clause precludes a contest after the specified period of broken conditions of the policy, something to be performed by the insured, but how can it be said that the association is precluded from contesting an asserted obligation which it never assumed and which it expressly excluded from the contract? It was not an obligation or part of the contract. It amounted to a statement or agreement of the parties that the risk named was not to be regarded as the subject of the insurance contract. The incontestable clause did apply to mutual obligations assumed and included in the contract, but cannot apply to those which the parties agreed were not assumed and which the governing law of the association provided could not be assumed. Plaintiffs cite and rely on Court of Honor v. Updegraff, 68 Kan. 474, 75 Pac. 477, as a case where the insured came to his death by suicide, and there is some general language in the opinion that probably gave plaintiffs some encouragement and ground to refer to it, but it is not an authority in support of plaintiffs’ contention in this case as was demonstrated in the later case of Myers v. Liberty Life Ins. Co., 124 Kan. 191, 257 Pac. 933. There the opinion in the Updegraff case was interpreted, and it was shown that the question as to the effect of an incontestable clause such as was in the Myers case, and which we have here, was not involved and determined in the Updegraff case. In the Myers case the court recognized that there was a difference of judicial opinion on the subject and some of the cases cited by plaintiff were considered, distinguished or held to be unsound, but there can be no doubt that this court has adopted a view contrary to the plaintiff’s contention. On the question whether- the incontestable clause conflicted with and prevailed over the one relating to a risk not assumed, it was said:
“What the company was trying to guard against was insurance taken out by a person who intended to resort to suicide as a means of recouping or swelling his estate, or. of providing for or enriching some beneficiary or beneficiaries. Experience shows that this is done often enough to warrant declination of the risk. Such being the purpose of the suicide provision, there is no necessary conflict between it and the incontestable provision. In strictness they relate to different subjects. One relates to engaging quality of the contract, and the other to definition of risk. Observing the distinction, at the end of a year the company was bound to the full extent of the risk it assumed, but it was not liable on a risk which it stipulated it would not assume, and the defense that the assured committed suicide no more contested the policy than a defense that he is still alive.” (p. 196.)
The Myers decision is controlling in the instant case and also finds support in other jurisdictions.
In Metropolitan Life Ins. Co. v. Conway, 252 N. Y. 449, 452, there was a provision that death resulting from flight in aircraft was a risk not assumed by the insurance company, and it was contended that the provision conflicted with the incontestable provision of the policy, but the court held that the provision was not inconsistent with other conditions in the policy but was a restriction as to coverage, and that where there had been no assumption of the risk there can be no liability. In the opinion rendered by Judge Cardozo, then chief justice of .the court of appeals, he said:
“The provision that a policy shall be incontestable after it has been in force during the lifetime of the insured for a period of two years is not a mandate as to coverage, a definition of the hazards to be borne by the insurer. It means only this, that within the limits of the coverage, the policy shall stand, unaffected by any defense that it was invalid in its inception, or thereafter became invalid by reason of a condition broken. Like questions have arisen in other jurisdictions and in other courts of this state. There has been general concurrence with reference to the answer.” (Citing a number of cases.)
Of the principles involved it has been said:
“By the use of the term ‘incontestable’ the parties must necessarily mean that the provisions of the policy will not be contested, and not that the insurance company agrees to waive the right to defend itself against a risk which it never contracted to assume.” (Scarborough v. Insurance Co., 171 N. C. 353, 355.)
See, also, Jolley v. Insurance Co., 199 N. C. 269; Woodbery v. New York Life Ins. Co., 221 N. Y. S. 357; Wright v. Philadelphia Ins. Co., 25 F. 2d 514; Hearin v. Standard Life Ins. Co., 8 F. 2d 202, and other authorities referred to in the cases we have cited.
We have examined the contentions of plaintiffs and the authorities they have presented, but find no error in the judgment, and it is therefore affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to enjoin the levy of an execution and to set aside a judgment. Judgment was for plaintiff. Defendant appeals.
The facts are brief. On August 23, 1925, appellant here filed a suit to recover money from F. A. Gibson. Gibson did not answer. On September 19, 1927, judgment was taken against Gibson by default. On January 19, 1929, the first execution was issued on the judgment. It was returned bearing the indorsement, “No property found.” June 4, 1929, another execution was issued with the same result. On October 17, 1930, another execution was issued. This execution was brought to the attention of appellee here. This action resulted. It should be stated here that appellee is a well-known business man in Kansas City. His office is close to the office of the sheriff and the fact that he owns property amply sufficient to pay the judgment, collection of which is sought to be enjoined, is well known.
In his petition in this case appellee alleged that he was not served with any summons in the case where judgment was taken against him and had no notice of the pendency of the suit or the judgment until he received a letter from an attorney representing appellant here with reference to it a few days before this suit was brought.
The case was tried to the court. At the trial the issue submitted was that of whether F. A. Gibson was served with any summons in the case of Enright v. Gibson. Of course, if there was no summons served upon F. A. Gibson, then any judgment based on such a suit is a nullity. It may be ignored or its collection may be enjoined.
The original summons was not produced at the trial. At the argument of the case in this court the statement was made that it had been lost and was found after the conclusion of the trial below. Appellant showed the entries in the appearance docket of the clerk of the district court and entries in the field book of the deputy sheriff who is alleged to have served the summons, and the journal entry of judgment of the district court. All these records show an attempt, at least, on the part of these officials to make a record of personal service. Opposed to this appellee offered evidence to show that he was not within the jurisdiction of the district court of Wyandotte county on the day when he is alleged to have been served personally. He testified that as a matter of fact he was in Colorado on that day and had been there for several days prior to that time. If he was in Colorado, then he could not have been served. The district court saw fit to believe him. The evidence was conflicting, but there was sufficient to warrant the court in reaching the conclusion it did reach. Its finding will not be disturbed.
At the trial of this case the court ascertained from appellee that in case the enforcement of the judgment in this case should be enjoined, he would not raise the defense of the statute of limitations in the original case. In this manner the court is assured that appellee will be enabled to defend the original case on its merits, and appellant will be enabled to present his original case on its merits. In proceedings of this kind there is a great deal of discretion vested in the trial court. No doubt the court considered the entire situation as revealed by the evidence and in the exercise of a wise discretion took the only action that would result in all parties having an opportunity for a determination of their differences in court.
Appellant produced the original summons here with the statement that it has been found since the trial in the court below. He asks us to receive it in evidence and ascertain the finding of the district court on the strength of it. He asks this under the provisions of R. S. 60-3316. We do not deem the case at bar to be one which calls for action by this court under that section. This subject was treated very well in Wideman v. Faivre, 100 Kan. 102, 163 Pac. 619. There the court said:
“The defendants present to this court certain photographs showing the hedge stumps, a blue print purporting to show that the hedgerow is on the defendants' land and not on the plaintiff’s, and produce an affidavit of the county surveyor who made these photographs and the blue print. The affidavit narrates that the government stones, which were of sandstone, cannot be found, that the stones which he did find are limestones, etc. Counsel for the plaintiff move to strike these photographs, blue print and affidavit from the files, since they are no part of the record, nor were they pi’esented to or considered by the trial court. Defendants cite section 580 of the civil code as authorizing this practice. It would seem that the scope and limitations of section 580 of the code have been sufficiently explained to the profession to need no discussion here; but it may be repeated that the scope of that section cannot constitutionally extend to include what would be mere cumulative evidence, nor evidence which it would be possible to controvert or dispute in the trial court, nor concerning the effect of which there might be differences of opinion or from which different conclusions could possibly be drawn. This court has jurisdiction of a cause iú one of two ways — by an invocation of its original constitutional jurisdiction in mandamus, quo warranto or habeas corpus, or through its appellate jurisdiction where it reviews alleged errors of trial courts. In the former, we may glean the facts with the same freedom and liberality accorded to all trial courts. In the latter, when we sit to review the work of a trial court, we are limited to the record made in that court; and there would never be an end of litigation if first one party and then the other were permitted to pile up further evidence in the appellate court which was never submitted to the trial court or jury. The supreme court’s jurisdiction is invariably and exclusively original or appellate. There is never a confusion or blending of both.” (p. 107.)
We know of nothing that would add to the force of that language.
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The opinion of the court was delivered by
Sloan, J.:
This was an action to recover the amount of an accommodation note from the beneficiary. The plaintiff prevailed, and the defendant appeals.
The defendant is, and was for many years prior to the transaction involved in this case, a banking corporation at Minneola, Kan., James McAdam was its president and Alva E. Moore was its cashier and principal managing officer, although McAdam was in full charge of the bank in the absence of Moore.
The daily statement of the bank on Saturday, May 5,1928, shows that its deposits were $63,828.26; that it had only $1,164.54 in cash, and deposits in its correspondent banks as follows: Exchange National Bank of Hutchinson, $56.15, and Commercial National Bank of Kansas City, $43.37; First National Bank of Great Bend, overdraft, $963.11. It was, in fact, approximately $8,000 short in the required reserve. The daily statement of Monday, May 7, 1928, shows a deposit under the name of James McAdam, written over an erasure and under the heading of First National Bank of Great Bend, in the amount of $15,000; a balance in the Great Bend bank of $9,438.05, and under the head of general credits, Commercial National Bank, $5,952.26, and transfer, $6,000. The cashier’s explanation of this statement was to the effect that McAdam represented to him that he was going to raise $15,000 for the credit of the bank and would deposit it with the Great Bend bank, and, relying on this statement, he made the entry; that he took credit for a return draft of $18 and a remittance of foreign checks in the amount of $1,-731.62, and charged the Great Bend bank with other items in small amounts amounting to $348.46. This, together with the overdraft, the transfer item and the balance shown in the Great Bend bank, accounts for the distribution of the $15,000. The .item of $5,952.26 was drafts drawn on the Commercial National Bank of Kansas City, and the $6,000 item purported to be a transfer of that amount from the Great Bend bank to Kansas City to cover these drafts. This transfer was never made. The $15,000 did not in fact come into the bank, and consequently the distribution as shown in the daily statement was without foundation. It had the effect, however, of showing the bank in a substantial condition on the face of the statement.
On the morning of May 9 McAdam called on the plaintiff, a personal friend and a farmer living near Minneola, and asked him, according to the testimony of the plaintiff, which appears to have been accepted by the jury, to sign an accommodation note for the use and benefit of the bank, stating that the bank would take care of the note as soon as the wheat came in from the harvest, and that the bank was in good circumstances. The note was written by McAdam and signed by the plaintiff. McAdam took the note to the Great Bend bank, and, under an arrangement which this bank had with the defendant, the note was rediscounted and the proceeds thereof credited to the account of the defendant in the Great Bend bank. On that day the Great Bend bank mailed a card to the defendant showing a credit, “J. E. Lutz note, $15,000,” and debit, “Wallace Boucher note-, $4,000, remittance federal reserve, $6,240.45.” The remittance was a transfer directed by the officers of the defendant to the Commercial National Bank of Kansas City for the purpose of clearing checks and drafts drawn on the defendant. ■ The Boucher note was a rediscounted note held by the Great Bend bank and there was a conflict in the evidence as to whether this was defendant’s liability or a personal liability of McAdam. On the same day the defendant requested the Great Bend bank to transfer an additional $5,500 to the Kansas City bank. On the completion of this transaction the $6,000 transfer item shown on the daily statement of the defendant was on May 10 charged back on the other side of the ledger and Moore’s explanation is, “I took it out when there wasn’t any more reason to pad the account.” Remittances from other sources were made to the Great Bend bank during this time, and Moore testified that on the 9th and 10th of May the bank had ordered transferred to their Kansas City correspondent $14,500, and that the deposit in the Great Bend bank was on May 10 reduced to $568.78. On May 7, 1928, McAdaffi’s account in the defendant bank was credited with $15,000, and on May 10 it was charged with $2,500 and $1,502.50, which appears to be the only checks or drafts in which McAdam had any interest that were paid through the transfer of the money from the Great Bend bank to the Kansas City bank. There is no evidence that McAdam had any express authority to negotiate the loan in question for the use of the bank, other than such authority as he might have by virtue of his office. The accommodation note was renewed from time to time, but before the filing of this suit the plaintiff paid the Great Bend bank the full amount thereof, including interest.
The issues were framed and the case tried on the theory that the bank received the full use and benefit of the proceeds of the transaction and by reason thereof was liable to the plaintiff for the amount of the note. The question to be determined by the trial court was, Who received the benefit of the transaction? The jury returned a general verdict in favor of the plaintiff, and answered special questions as follows:
“1. Did the defendant barde secure and retain the proceeds of the note in question? A. Yes.
“2. If you answer question No. 1 in the affirmative, state in what manner and to what extent. A. By $11,000 cash and a $4,000 note.
“3. Was any portion of the $15,000 credit given James McAdam in the defendant bank by said bank on May 7, 1928, used by said defendant bank to honor checks of said Janies McAdam on said account before the $15,000 was deposited to the credit of the defendant bank in the Great Bend bank? A. No.
“4. Did James McAdam have any authority from the defendant bank to consummate the transaction in question? A. Yes.
“5. If you answer the foregoing question in the affirmative, state what the authority was. A. As president and by plaintiff’s exhibit No. 1.”
There is no room for controversy over the principles of law controlling this lawsuit. Banks are responsible for their conduct and are liable for the wrongs which they commit and the injuries which they cause. A bank cannot be held liable for the unauthorized transactions of its officers, unless it actually receives and retains the benefit of such transaction. If, however, it receives and appropriates the benefit of a transaction it cannot escape liability on the ground that the officer acted without authority. If the note was given solely for the accommodation of the bank and the bank received and appropriated the benefit of the transaction, it is liable independent of any promises made by its president, and the appellee had the right to maintain this suit to compel the bank to take care of its obligation. (Means v. Bank, 97 Kan. 748, 156 Pac. 701; Saylors v. Bank, 99 Kan. 515, 163 Pac. 454; Bank v. Wilson, 101 Kan. 72, 165 Pac. 859; Humpert v. Citizens State Bank, 122 Kan. 101, 250 Pac. 1077; Johnson v. Schrag, 134 Kan. 80, 4 P. 2d 450.) We do not understand that the appellant questions these well-established principles of law. Its contention is that because of certain error in the admission and rejection of testimony, and the refusal to submit certain special questions and certain instructions to the jury, the appellant did not have a fair trial of the issues involved, and asks that the judgment be reversed. We shall attempt to review the assignments of error in the order in which they are presented.
It is contended that the court excluded testimony and limited the appellant in its cross-examination of the appellee’s witnesses. Our attention is called to the cross-examination of the cashier of the Great Bend bank in which he was asked concerning the usual custom of banks, which, under the circumstances of this case, we think, was wholly immaterial. He was further asked whether McAdam had an account in the Great Bend bank. The court sustained this objection. In the abstract of the cross-examination of the witness, however, we find this statement: “The Minneola bank had a deposit in our bank at that time and James McAdam did not.” This clearly indicates that the witness did answer a similar question which answers this contention, unless there was an attempt to distinguish between deposit and account, which the context of the cross-examination does not indicate.
It is also contended that the court erred in excluding checks drawn by McAdam on the appellant after May 10, 1928. These checks might properly have been admitted, but in view of the fact that McAdam’s ledger sheet showing his account from March 16, 1928, to and including June 8, 1928, was in evidence, which showed the date the checks were paid and the amount thereof, the appellant was not prejudiced by the exclusion of this evidence: It is also complained that the court erred in sustaining an objection to a question propounded to the witness Moore as to why he did not transfer the $6,000 item. The record clearly indicates that this item was nothing more nor less than a book entry; that he had at no time intended to make the transfer and did not make the transfer. His explanation appears to have been quite fully gone into, and the reason he did not make the transfer is apparent. Other contentions are made that the court erred in the admission and exclusion of evidence and that it unduly limited the cross-examination of appellee’s witnesses. These have been considered and found to be without merit. We fully realize that in the trial of a case of this nature, involving transactions between banks, which necessarily includes many records of the bank, it is difficult to determine just where the line should be drawn in the examination of witnesses, and the extent that records should be admitted in evidence. The trial court is vested with discretionary power in these matters, and unless there is an apparent abuse of judicial discretion this court-will not disturb its ruling. (Harmon v. Theater Co., 111 Kan. 252, 206 Pac. 875.)
It is next contended that the court permitted improper testimony on rebuttal. The court could very properly have excluded a part of the testimony offered on rebuttal. There appears to have been an attempt on the part of the appellee to impeach the appellant’s witnesses on collateral matters elicited on cross-examination. This should not have been permitted. (State v. Alexander, 89 Kan. 422, 131 Pac. 139.) Our examination of the record has led us to the conclusion that, under the circumstances of this case, the admission of this testimony, while erroneous, was not reversible error.
The appellant requested the submission of ten interrogatories to the jury, and contends that the court erred in its failure to submit these interrogatories. Interrogatories numbered one and two requested by the appellant, we think, are sufficiently included in questions numbered four and five submitted to the jury. Requested interrogatories numbered six, seven and ten relate to the deposit of the $15,000 in McAdam’s account in appellant bank and when checks were honored on this account. We think these questions are sufficiently covered in interrogatory number three submitted to the jury. This interrogatory, on its face, concedes that the $15,000 credit was made in McAdam’s account in the appellant bank, and the jury is asked whether the bank honored checks on this account before the $15,000 was deposited to its credit in the Great Bend bank. The jury finds that none were honored, and this appears to be in accordance with the ledger sheet offered in evidence by the appellant showing McAdam’s account. In requested interrogatory number five, the jury was asked who the managing officer of the defendant bank was in May, 1928. This question might properly have been submitted to the juiy. There does not appear, however, to be much controversy on this point and any answer the jury may have made to it would not have affected the general verdict.
Requested interrogatory number eight is:
“Did said James McAdam cheek out the sum of fifteen thousand dollars ($15,000) for his own use and benefit from his private account in the defendant bank between the dates of May 9, 1928, and May 23, 1928?”
The refusal to submit this interrogatory presents a more serious question. The record shows that the $15,000 deposit made in the McAdam account was drawn out of the bank between the dates stated. The jury would have been fully warranted in answering this question “Yes.” Would such an answer have affected the general verdict? If so it was error for the court to refuse to submit the interrogatory. The issue which the jury had for consideration was, Who received and appropriated the benefit of the transaction, and to whom did the appellee loan his credit? If the appellant was the recipient of the fruits of the transaction, it is of no consequence what it permitted McAdam to do with the money after it was appropriated to its use. It appears from the record that on May 7, after the deposit was made in the Great Bend bank, on the order of the appellant $11,740.45 was transferred to its correspondent bank in Kansas City. This and the $4,000 note charged against the account practically exhausted the proceeds of appellee’s note. Moore testified that on the 9th and 10th a total of $14,500 was transferred to thé Kansas City bank and that McAdam was only interested in two items in the transaction, totaling $4,002.50, and one of these, a $2,500 item, had been carried by the bank since April 20, 1928. The deposit enabled the bank to meet its demands and pay the checks of its depositors. It received the immediate and primary benefits of the transaction. The general verdict established the fact that the appellee loaned his credit to the bank. Under such circumstances what McAdam did with his account was of no consequence, and it was not error to refuse to submit the question.
The appellant criticizes instructions given and contends that the court erred in instructions refused. We have made a careful examination of the instructions given by the court, as well as the instructions refused. The court concisely stated the. issue in the case and instructed the jury that the burden was on the appellee to establish that he gave his note without consideration for the accommodation of the appellant; that the appellant received the use and benefit of the proceeds of the note and appellee was compelled to pay the note. On the other hand, if the jury found that the transaction was for the benefit of James McAdam or that he was the accommodated party, the appellee could not recover. The appellant seriously objects to instruction number five, in which it is stated, “If you find from the evidence that the note in question was made payable to the defendant bank,” contending that there is no evidence warranting the court’s, submission of this question. There is force to the criticism and the instruction should not have been given, but, when read in connection with other instructions given by the court, we find that it was not prejudicial error.
It is next contended that the court erred in overruling a motion for a directed verdict. It is argued that under all of the evidence in this case the transaction was the usual and ordinary way of handling a deposit made by the patron of a bank in its correspondent bank. We cannot agree with this argument. It is clear to this court that the bank was in an unsound condition on May 5, 1928. Moore said: “The bank was in a pretty shaky condition.” The daily statement of Monday, May 7, showed the bank to be in a substantial condition. The reason for this change is the anticipated deposit of $15,000 to the credit of appellant in the Great Bend bank. Moore testified: “The utilization of the $15,000 proposition changed the bank from in bad shape to a bank that had its reserves fully met.” This deposit was necessary to enable the bank to meet the drafts drawn on its Kansas City correspondent and without this credit the bank would have been compelled to turn down the checks of its depositors. The deposit was made and the money used by the bank in the payment of its depositors. The appellee testified to the effect that he loaned his credit to the bank and not to McAdam. This presented questions of fact for the jury to determine and we think the evidence was sufficient to support the finding; that the bank was the accommodated party, and that it received the fruits of the transaction and appropriated it to its own use. Under such circumstances the appellant cannot escape liability.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to cancel two deeds and a mortgage covering certain town lots in Wichita which plaintiff claimed to own, and the title to which had been fraudulently obtained from her under the following circumstances:
Prior to June 27, 1928, plaintiff had been the undisputed owner and title holder of the lots for forty years. On that date, at the instance of one Clifford Hawkins, with whom she had been acquainted for five years and who had gained her confidence, she was duped into signing a deed of conveyance to the lots to one of these defendants, E. L. Rector. Hawkins made her believe she was signing (and acknowledging before a notary) an order directing that an abstract of her title be made so that the lots could be sold. She had no acquaintance with the grantee named in the deed and had never heard of him. Hawkins delivered the deed to Rector — for what consideration does not appear — and that deed was recorded on September 20, 1928. Rector set about the building of a house on the lots, and that improvement had so far progressed on December 27, 1928, that the Southwestern Building & Loan Association, one of these defendants, loaned $1,800 on the property, taking a mortgage from Rector to secure repayment of that sum. That mortgage was recorded December 27,1928. On January 19, 1929, Rector sold the property to E. M. and J. E. Wright, other defendants herein, subject to the $1,800 mortgage. Having no actual notice of any of these transactions, or that she had parted with her title to the property, plaintiff sent her check for $40.30 to pay the taxes for 1928, and the county treasurer issued to her his receipt (No. 12,525) therefor, dated February 6, 1929. Some time later, the county treasurer wrote plaintiff as follows:
“Upon checking up our tax receipts we find an error in receipt No. 12,525 which you hold. Please bring it in at your earliest convenience and we will be pleased to rectify any mistake that has been made.
“Mr. and Mrs. Rector have paid the first half tax on these lots and say they have a warranty deed. If you will bring or send this receipt we will cancel and return your money.”
Plaintiff received that communication from the county treasurer “sometime between May and June, 1929.”
Matters were permitted to remain in the situation above stated until February 16, 1931, when plaintiff brought this action against Rector, the loan association, and the Wrights. Hawkins, who perpetrated the fraud, was not impleaded. Plaintiff charged that Hawkins and Rector were in collusion in the fraud practiced upon her. In her petition she recited the subsequent facts touching the recording of the deed to Rector, the mortgaging of the property to the loan association, the recording of that mortgage, and the subsequent conveyance to E. M. and J. E. Wright.
The defendants filed separate answers raising issues of fact and of law. Plaintiff separately replied to these answers.
A jury was impaneled to try the cause, and plaintiff adduced her testimony. At its conclusion defendants lodged separate demurrers thereto. These were sustained, the jury was excused, and judgment was entered for defendants.
Plaintiff appeals, suggesting several points of law which, in the opinion of her counsel, reveal error in the judgment. Before noting these in sequence, however, it may serve to shorten discussion to state that the allegation that Hawkins and Rector were in a conspiracy to deprive plaintiff of her lots was not sustained by one scintilla of evidence. In the brief of plaintiff’s counsel is inserted an affidavit by one McNaughton, who avers that he has known Rector and Hawkins for many years, and that he had a conversation with Rector on July 29, 1931, in which Rector said he and Hawkins had been associated for many years and still were thus associated “selling bonds, etc.” That affidavit is of no significance for several reasons. It does not tend to prove that Rector and Hawkins confederated to perpetrate the fraud on plaintiff or that Rector had any hand in it. Furthermore, if the facts recited had any probative force they would be altogether unavailing since the affidavit was not presented to the trial court. ' (Gibson v. Enright, ante, p. 181, 9 P. 2d 971.)
On plaintiff’s behalf the rule of law is invoked that where a person is deprived of his property through fraud a resulting trust arises in his favor, and that the party who had thus deprived him of it becomes a constructive trastee who can be required to reconvey the property together with the rents and profits. That is a familiar rule of law where it can be justly applied, but it is one which must be invoked within the time allowed by the statute for relief on the ground of fraud. That time is two years (Civ. Code, §17; R. S. 60-306, 3d clause) and the time begins to run, not from the date when the fraud was actually discovered, but at the time when the injured party was given constructive notice of the fraud. That constructive notice was given when the deed to Rector which plaintiff signed and acknowledged was recorded, September 20, 1928. This action was begun on February 16, 1931 — -two years, four months, twenty-six days thereafter. This was too late, as our multiplied precedents clearly show.
In Black v. Black, 64 Kan. 689, 704, 68 Pac. 662, it was held:
‘‘The phrase ‘until discovery of the fraud,’ in subdivision 3 of section 18 of the code (Gen. Stat. 1901, §4446), which provides the limitation of two years in case of ‘action for relief on the ground of fraud,’ and which also provides that ‘the cause of action in such case shall not be deemed to have accrued until the discovery of the fraud, does not necessarily mean until the party complaining had actual notice of the fraud alleged to have been committed, for constructive notice of the fraud is sufficient to set the statute in motion even though there may be no actual- notice. Where the means of discovery lie in public records required by law to be kept, which involve the very transaction in hand, and the interests of the parties to the litigation, the public records themselves are sufficient constructive notice of the fraud to set the statute in motion.” (Syl. U 2.)
In Pinkerton v. Pinkerton, 122 Kan. 131, 251 Pac. 216, the syllabus reads:
“A plaintiff who brings an action claiming that a deed to land was fraudulently filed for record for the purpose of cheating him is asking relief on the ground of fraud, and to escape the bar of the statute the action must be brought within two years after the discovery of the fraud. Notice of the alleged fraud was brought to plaintiff by the filing and recording of the instrument by which the alleged fraud was accomplished, and is sufficient to start the statute of limitations although plaintiff had no actual knowledge of the filing of the instrument.”
See, also, Dassler’s Kansas Civil Code, annotated, 2d ed., 67, 68.
Counsel for appellant direct our attention to cases like Kahm v. Klaus, 64 Kan. 24, 67 Pac. 542, where a rogu'e duped his sister-in-law into executing to him a deed of conveyance to a tract of land by the pretense that the instrument she was signing was a power of attorney. She did not discover the fraud for four years, but when she did make such discovery her action for relief on the ground of fraud was timely begun. In that case the title was taken in the name of the person who committed the fraud, and title was still in his name when the action was begun. No rights of bona fide purchasers or of record title holders who had acquired an interest without notice of infirmity in the title were involved. It is therefore perfectly obvious that cases like Kahm v. Klaus are of no consequence in the consideration of the case under present review.
This case presents a good illustration of the age-old rule of law and equity that whenever one of two or more innocent persons must suffer through the wrongdoing of a third, the one whose act or negligence enabled the wrongdoer to accomplish his evil design must suffer the loss. Plaintiff trusted Hawkins and executed the deed to the lots upon his misrepresentations. She was negligent in so doing. It is not shown that either of defendants was negligent in any respect. It was not shown that any of them had knowledge or notice of Hawkins’ duplicity. Their rights were therefore superior in law and in equity-to those of plaintiff. (McNeil v. Jordan, 28 Kan. 7; State v. Matthews, 44 Kan. 596, 604, 605, 25 Pac. 36; Custer v. Oliver, 93 Kan. 760, 145 Pac. 554; Kinsley Bank v. Aderhold, 131 Kan. 448, syl. ¶ 4, 292 Pac. 798.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages growing out of a collision of a truck with an automobile. Judgment was for the plaintiff. Defendants appeal.
The facts are as follows: Appellants operate a plant where they manufacture ice cream. As part of this business they delivered ice cream to various customers in Kansas City. To do this they operate a truck. The evidence in the case speaks of it as a ton-and-a-half truck. Appellee worked for appellants as a helper on this truck during the day from seven in the morning till six in the evening. From six in the evening the truck was operated by one man without any helper. On the day the injury occurred to appellee he had finished his work for the day and gone home. After he had cleaned up and had his supper he returned to the plant of appellants. Here there is a sharp conflict in the evidence. Appellee testified that Frank Hannon, his cousin, who drove the truck, asked him to help load and to go with him to a swimming pool to do some work for the company. He also testified that the foreman of the plant saw him there helping Harmon and saw him get on the truck when it was driven away.
The foreman denied this and testified that when appellee came to the plant that night he told him to leave, since the company did not permit anyone to hang around who was not working. He testified that he told appellee' he could not ride on the truck and that he did not know he was on it till after the accident. His testimony was —“he wanted to ride on the truck and I said, ‘No, the foreman —I mean the boss — doesn’t allow it.’ ” Frank Harmon, the driver of the truck, testified that when appellee came to the plant that night the night foreman told him that he was not allowed to have anybody hanging around, and that he did not allow anybody on the trucks; that soon after that appellee left. He testified that within a block or two of the plant, as he was starting on his trip, appellee flagged him down, and on account of his being a relative he stopped and picked him up.
This was all the testimony on that particular point. On that evidence the jury answered three special questions as follows:
“11. Did the injuries sustained by the plaintiff occur in the course of his employment as employee of the defendants? A. No.
“12. Had there been communicated to the plaintiff a rale of the defendants to the effect that no persons except the employees of the. defendants should be permitted to ride upon their trucks? A. Yes, but not enforced.
“13. If you answer the last question in the affirmative, were the injuries sustained by the plaintiff the result of his violation of said rule? A. Yes.”
One ground for reversal urged by appellants is that judgment should have been given for them on these special questions notwithstanding the general verdict. This question will not be dealt with, however, till we have examined the facts with reference to the accident.
The truck made the trip on which it was sent, and on the way back approached the intersection of Eighteenth street and Reynolds avenue in Kansas City, Kan. The truck was being driven east on Reynolds avenue. There is a stop sign on Reynolds avenue thirty feet back from the Eighteenth street property line. The city ordinance required all motor vehicles to come to a stop before crossing Eighteenth street. At this intersection Eighteenth street is sixty feet wide from property line to property line, and forty feet from curb to curb. Reynolds avenue is sixty feet wide, with the pavement thirty feet wide. Eighteenth street has two street-car tracks on it. As the truck approached Eighteenth street there is a dispute as to whether the driver stopped. He says he did. Appellee says he did not. The jury found that he did not.
As the truck proceeded to cross Eighteenth street it reached a point where its hind wheels were on the east street-car track, or about two-thirds of the way across. At this point an Essex car, which was being driven south on Eighteenth street, collided with the truck, causing it to upset and injure appellee; There are many conflicts in the testimony and the jury answered special questions with reference to the accident, as follows;
“1. At the time of the accident in question, was the truck of the defendants struck and overturned by the Essex automobile driven by John Ruzieh? A. No.
• “2. If you answer the foregoing question in the affirmative, was the rear end of the truck of the defendants on the east street-car track on Eighteenth street when struck by the Essex car? A. Truck was on east car track.
“3. If you answer the foregoing question in the affirmative, state whether or not the defendants’ truck had entirely cleared the west half of the pavement on Eighteenth street. A. Yes.
“4. If the Essex automobile driven by John Ruzieh had been driven on the right-hand or west side of Eighteenth street at the time of the accident, would it have collided with the truck of the defendants? A. No.
“5. At what rate of speed was the Essex car being driven south on Eighteenth street as it approached Reynolds avenue? A. Twenty to twenty-five per hour.
“6. What, if any, precaution did the driver of the Essex car take for the safety of persons or vehicles crossing Eighteenth street at the intersection of Reynolds avenue? A. Swerved to left to avoid collision with truck.
“7. What caused the defendant’s truck to overturn? A. Colliding with Essex.
“8. Could the driver of the Essex car, if he had looked, seen the defendants’ truck as it emerged from side of the stone wall on the northwest corner of Eighteenth and Reynolds avenue? A. Yes.
“9. If you believe from the evidence that the plaintiff requested the driver of the truck to drive more carefully and he failed to do so, what, if anything, was there to have prevented the plaintiff from leaving the said truck? A. Failed to stop.
“10. If you should find from the evidence that the driver of the defendant’s truck drove the truck negligently, state whether or not such negligence would more than furnish the condition or give rise to the occasion by which the injury was made possible. A. Negligence of truck driver furnished condition for injury.
“14. Was there a sign on Eighteenth street directing that the south-bound traffic slow down before passing its intersection with Reynolds avenue? A. Yes, according to ordinance No. 23-756.
“15. If you answer the last question in the affirmative, did the driver of the Essex coach slow down in obedience to said sign? A. No.
“16. Could Ruzich have prevented the accident by turning the Essex coach to the right, after he saw the defendants’ truck in the intersection? A. No.
“17. Did the defendants’ driver stop the track in question before entering into Eighteenth street? A. No.
“18. Did the defendants’ driver sound a horn while approaching or before entering upon Eighteenth street? A. No.
“19. Did the defendants’ driver have the truck in question under reasonable and proper control before entering and crossing Eighteenth street? A. No.
“20. Did the defendants’ driver negligently and wantonly fail to keep a lookout for south-bound traffic on Eighteenth street, as he approached the same? A. Negligence, but not wantonly.
“21. At what rate of speed did the defendants’ driver approach and enter into and partly cross Eighteenth street? A. Twenty to twenty-five.
“22. Did the defendants’ driver wantonly and recklessly operate the truck in question just prior to and at the time of its collision with the automobile in question? A. Yes.”
The driver of the Essex car was not made a party to this action.
Appellants urge as one ground for reversal that the driver of the Essex car was driving negligently at too high a rate of speed and upon the wrong side of the street when the collision occurred; that at that time the negligence of appellants was past and that the cause of the collision and injury to the appellee was the negligence of the driver of the Essex car.
The question of whether the negligence of the driver of the Essex car was the proximate cause of the injury was submitted to the jury under a proper instruction. It was a proper question for the jury to decide. Evidence was given by which it could have been decided either way by the jury. The jury, after hearing the conflicting evidence, found as set out in the above special questions. We see no reason for disturbing those findings. Under these findings, we conclude the case should follow the rule laid down in Nevitt v. Railway Co., 115 Kan. 439, 223 Pac. 269. There this court said:
“There were, it seems, two concurrent acts of negligence which brought about the death of Nevitt — the excessive speed of the train, and Gibson’s driving of the Ford car on the track without assurance that it was safe to do so.” (p. 442.)
Appellants argue that the negligence of the driver of the truck consisted of not stopping at the stop sign and going into the intersection at too great a rate of speed, and that these two acts of negligence were past and the truck had reached a place of safety when it was hit by the Essex car. They argue that the collision would not have occurred had it not been for the negligence of the driver of that car.
We conclude, however, that the negligence of the driver of the truck was still going on when the truck was hit. It was still in a place of danger where the driver’s negligence had put it. But for his negligence in not stopping, and in going into the intersection at too great a rate of speed, as found by the jury, the truck would not have been where it was when it was hit, and the collision would not have occurred. The case is one, then, where two acts of negligence occurred, both of which contributed to the injury. In such a case the injured party may at his option institute an action and recover against one or all of those contributing to the injury. (See Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706; Pinson v. Young, 100 Kan. 452, 164 Pac. 1102.)
We will next examine the argument of appellants that judgment should have been for them on special questions 11, 12 and 13 notwithstanding the general'verdict. By these answers the jury found in effect that appellee’s injuries were not sustained in the course of his employment as an employee of appellants, that there was a rule of the company that no person but employees of appellants were permitted to ride on the trucks, and that the injuries sustained by appellee were the result of his violation of this rule. We have seen the evidence upon which these answers were based.
Appellants point out those answers and argue that they amount to a finding that appellee was a trespasser on the truck, and on that account appellants are not liable for an injury to him even though it is caused by the negligence of one of their employees.
•In answer to that argument appellee urges that he was on the truck by permission of appellants. That would make him a licensee and the company would be liable for an injury caused by the negligence of one of their employees to a licensee.
Tliis necessitates that we examine the evidence and findings of the jury on that phase of the case. The jury made no finding as to the knowledge of the foreman. Before we may say that the general verdict in favor of appellee found this fact in his favor we must look at the pleadings and the evidence in the case on that point. The petition simply states that appellee “was riding on a truck owned, operated and controlled by defendants.” There were no allegations about appellee being' a licensee or invitee of appellants. What is the evidence as to this? Appellee is the only one who offered any testimony on this point. His evidence is as to the foreman— “he seen me get on the truck; he seen me helping him load, and he saw me get on the truck.” This court has said that evidence that a certain person had his head turned in a certain direction, and could have seen things within the range of his views is not evidence that he actually saw what he could have seen. What he actually did see is the matter of speculation and conjecture. (Handley v. Railway Co., 61 Kan. 237, 59 Pac. 271.) In that case a porter on a train had been holding a handrail leaning out watching a boy that was hanging on to the train. This court held that this was not sufficient-evidence that the porter saw the perilous position of the boy. This decision was followed in Gamble v. Oil Co., 100 Kan. 74, 163 Pac. 627. Furthermore, even if it were shown that the foreman saw appellee get on the truck, we do not think that in itself would be sufficient to justify a conclusion that appellee was the licensee or invitee of the company. We know of no rule which makes it the duty of the company to use physical force to see that no one trespasses on its property or rides upon its vehicles in order to escape liability for an injury to the trespasser. Applying these principles, we conclude there was no evidence that the company permitted or knew that appellee was going to ride the truck that night. Since this is so, then it must follow that as to the appellants, appellee was a trespasser.
Appellee makes a vigorous argument that the jury did not as a matter of fact find that there was a rule of the company against anyone but employees riding on the trucks. He points out that the answer to question twelve means only that he had been told there was such a rule. This argument is too subtle for us. The answer to the next question is a finding that the injury was the result of appellee violating the rule of the company which forbids anyone but employees riding on the trucks. This finding in effect means that the jury considered the entire question under the belief that there was such a rule. We will discuss the case, therefore, with the question settled that appellee was not on the truck in question with the permission or knowledge of the company or any agent of the company authorized to give such permission.
If he was a licensee, or invitee, on that truck he did not sustain this relationship to appellants. He only sustained it to the driver of the truck, an employee of appellants who had no authority to permit anyone other than himself to ride this truck. As far as appellants are concerned, he was a trespasser, just as much so as the boy who attempts to catch a ride on a moving train (Handley v. Railway Co., 61 Kan. 237, 59 Pac. 271), or on a truck being driven through the street (Gamble v. Oil Co., 100 Kan. 74, 163 Pac. 627), or on a truck being driven in a yard (Newlin v. Standard Oil Co., 122 Kan. 86, 251 Pac. 394). This is true because the liability of an employer for a tort of a servant springs from the doctrine that the servant is acting for the master. The theory is that in the doing of the work the servant is performing at the time of the injury he is a sort of alter ego for his employer. Following out this theory, then, naturally when the servant departs from the line of duty, which the master has hired or directed him to perform, he acts not for his employer, but for himself. His acts are those of himself — not those of his employer — and the responsibility for the results of these acts is that of the employee and not the employer. In this case appellants had hired' the truck driver to drive a truck and deliver ice cream. It had sent him on a particular trip. It had instructed him not to haul anyone else. These instructions were known to appellee. It was no part of the employment of the truck driver to permit some one else to ride with him. When he permitted appellee to ride his truck, as far as hauling appellee around is concerned, he was not acting for his employer at all. He was acting for himself in his own personal capacity. As far as appellee is concerned, he was in the same position as though he and the truck driver had concluded to take a sight-seeing trip along highway 40 on the company’s time and had been injured out by Lawrence.
Appellee attempts to meet this situation by an argument that this question was not raised in the trial court. We think a sufficient answer to that argument is the fact that the questions referred to were submitted by the court and answered by the jury.
We have seen question No. 22 and the answer. The answer to this question is a finding the truck driver wantonly and recklessly operated the truck in question just prior to and at the time of the collision. Appellee points out this finding and argues that even should this court conclude that appellee was a trespasser on the truck, still appellants would be liable for an injury to him if it were caused by the wanton, willful negligence of the driver. His authority for this argument is a statement in some cases decided by this court, where it was said in the case of a boy hopping on a train, the boy catching a ride on the truck and the boy stealing a ride on the truck with the driver’s consent, all trespassers as to the employers, that the employer would not be liable except for wanton or willful negligence. He urges that the converse of this is true, and that even though the injured party is a trespasser the employer would be liable if the injury was caused by the wanton or willful negligence of the driver.
We cannot follow appellee that far. We have dealt heretofore in this opinion with the theory of the rule that makes an employer liable for the torts of a servant, and with the theory which excuses the employer when tort occurs while the servant is acting outside the scope of his employment. An examination of the above cases shows that the liability is based on knowledge on the part of the -employer of the position in which the injured party finds himself. We have seen that the rider on the vehicle, who is there on the invitation or the license of a servant who had no authority to extend the invitation, is a trespasser; that is, the invitation to ride is not the invitation of the employer. It is the invitation of the employee. Now, if this is true the consequences of having extended this invitation, which put the injured one in a place of peril, are those of the employee alone and not of the employer. The jury found here that appellee was injured as a result of his disobeying the rule against employees riding on the trucks. As far as consequences to the trespasser are concerned the driver was acting outside the scope of his employment the minute appellee got on the truck and continued so to act during all the time he rode. The rule of liability is much the same as though appellee had crawled on the truck without the driver knowing anything about it. No one would contend that under those circumstances the company would be liable. As a matter of fact, as far as appellants are concerned, they knew nothing of the presence of appellee on that truck. It is true the driver knew of it and the jury found that he drove wantonly, but all this time he was acting for himself, not for his employer, as far as appellee is concerned. This is the theory upon which the case of Drescoll v. Scanlon, 165 Mass. 348, was decided. In O’Leary v. Fash, 245 Mass. 123, the injured person was riding on an ice-cream truck as the guest of a driver who had no authority to invite. The same argument was made there that we are discussing. The court said:
“The defendant owed no duty to the plaintiff. The latter was not on his truck by his invitation or by the invitation of anyone authorized to act for him. So far as concerns the plaintiff and her presence on his truck, it is in law a matter of indifference to the defendant whether the driver of the truck exercised due care or was grossly negligent or was guilty of wanton or reckless conduct.” (p. 126.)
To the same effect is Thomas v. Magnolia Petroleum Co., 177 Ark. 963. This case contains a full discussion of the authorities on this question and is decided on the doctrine of respondeat superior, as it has been discussed in this opinion. See, also, Gas & Elec. Co. v. Crouch, 123 Ohio St. 81. The court there'said:
“The petition alleges that the servant Callahan 'willfully, recklessly, wantonly, carelessly and negligently drove said automobile truck at a high and excessive rate of speed.’ This allegation would be very pertinent if the suit were against Callahan, but willfulness, recklessness, and wantonness cannot be charged against the owner of the car, unless the owner entertained a conscious purpose to do a wrongful act, or unless it be shown that he was indifferent to the safety of others after knowledge of their danger.” (p. 85.)
See, also, Zampella v. Fitzhenry, 97 N. J. L. 517, 117 Atl. 711, 24 A. L. R. 666. This case reviews the authorities on the point we are discussing and follows the doctrine of respondeat superior much as it has been discussed here. The employer was held not liable in that case. In the volume of A. L. R. cited there is a note reviewing many of the authorities. We have concluded that the better-reasoned cases support the doctrine set out herein.
This court has announced the rule that the employer is not liable for the torts of an employee when the employee in committing the tort is acting outside the scope of-his authority even though the act of the employee is willful and wanton. In Taylor v. St. Louis-S. F. Rly. Co., 124 Kan. 751, 260 Pac. 496, the jury found that some brakeman threw a trespasser off a moving train with personal malice and that it was not done in furtherance of any duty of the brakeman to the company, but was done contrary to the rules and requirements of the company. This court said:
“It has been settled that the liability of the master for the tortious acts of his servant depends on whether they were done in the master’s business and within the scope of his employment. To fasten liability on the master it is not enough that the act was done while the servant was at the time in the master’s service; the authority must have been expressly conferred or is fairly to be implied from the nature of the employment and the duties incident to it, and if not done within the duties of the servant or the scope of his employment, the servant alone is responsible.”
To the same effect is Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621. There the brakeman chased a trespasser off a train and followed him up an embankment and willfully shot him. This court held the railway company not liable. An analysis of these cases discloses that they were all decided on the doctrine of agency, as discussed herein.
The findings of the jury in this case clearly make the appellee a trespasser on the truck. As far as appellants are concerned, he was permitted to ride on the truck by one who had no authority to do so and no authority to bind the company thereby. This act of the driver of the truck in permitting appellee to ride was clearly beyond the scope of his employment. The truck driver, his employee, and appellee continued to sustain this relation to each other from the time appellee first got on the truck till the collision occurred. Thére never was a time when the relationship between them changed during the entire trip. The only duty owed was that which the driver owed appellee. As far as appellants and appellee are concerned, they were strangers to each other when he got on the truck and nothing happened to change that relationship.
It follows that the motion of appellants for judgment on special questions 11, 12 and 13 should have been sustained.
The judgment of the district court is reversed, with directions to enter judgment for appellants. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to determine the rights of parties under a will and for an accounting. Judgment was for defendants. Plaintiff appeals.
This action was begun by Fannie Diller, the life tenant of the property in question, under the will of her deceased husband. The will was as follows:
“I hereby give, bequeath and devise unto my beloved wife, Fannie Diller, for and during the term of her natural life, all property of which I may die seized, both real, personal and mixed.
“I further give to my beloved wife, Fannie Diller, the right, power and authority to execute oil and gas leases on any real estate of which I may die seized and same as if she owned the same in fee simple, she to collect the bonus and rental.
“Upon the death of my beloved wife, Fannie Diller, I give, bequeath and devise all the rest, residue and remainder of my property, both real, personal and mixed, unto my children, Clarence O. Diller, Everett Floyd Diller and Flora Nettie King, share and share alike.”
In the action she asked personal judgment against the administrator of her husband’s estate. This administrator answered that he held certain property as trustee- and that he did not claim any right, title or interest in the property other than as trustee, and that he did not care to act as trustee any longer. He tendered his resignation to the court and asked it to accept this resignation, assume jurisdiction of the trust and appoint a successor as trustee. He also asked that all the remaindermen be made parties, defendant. This was done. Trial was by the court. The rest of the story can best be told in the findings of fact and conclusions of law of the trial court. They are as follows:
“Findings op Fact.
“1. Henry Diller, husband of the plaintiff, Fannie Diller, and father of the defendants, Clarence 0. Diller, Flora Nettie King and Everett Floyd Diller, died testate September 8, 1927. On September 19, 1927, the widow, plaintiff, filed in the probate court of Butler county, Kansas, a petition to admit the last will and testament of the deceased to probate. In such she was appointed executrix to serve without bond, and in her petition for its probate she stated that on account of her age and infirmities she declined to act as such, and asked that the defendant, R. H. Kilgore, be appointed administrator with the will annexed of said estate. Pursuant to said petition the will was admitted to probate, plaintiff elected to take thereunder, defendant Kilgore was appointed administrator, duly qualified as such, the estate duly administered upon by him, and final settlement thereof was made on February 15, 1929.
“2. By his will the said Henry Diller devised and bequeathed all his property, real and personal, to the plaintiff herein for and during the term of her natural life, with the remainder of the personal property over to the defendants Clarence O. Diller, Flora Nettie King and Everett Floyd Diller, share and share alike. Real estate, about eight hundred (800) acres of land, also given to plaintiff for life, with the remainder to defendants, named, each a specific tract, but such is not involved in this action.
“3. At various dates while the estate was in process of administration the plaintiff and the defendants, Diller, Diller and King, discussed with each other and with defendant, R. H. Kilgore, the advisability of devising some plan whereby Kilgore should continue to handle the personal property belonging to said estate for the benefit of the life tenant and said remaindermen, after he should be discharged as administrator with the will annexed, and in and by such conversations, and prior to the date of final settlement, it had been orally agreed by said parties that such a plan would be adopted. At time of the final settlement and in pursuance of the former understanding to that effect, it was orally agreed between the plaintiff and said remaindermen and Kilgore that upon his discharge as administrator he should retain and handle said property himself as trustee for the plaintiff and the remaindermen, and that he should, during the lifetime of the life tenant, plaintiff herein, keep each property invested in bonds and like securities and pay the income accruing therefrom to plaintiff during her lifetime, and at her death divide the corpus or principal thereof equally among said remaindermen.
“4. Upon final settlement and after the payment of all debts and expenses of administration there remained in the hands of said administrator 829,012.83 in bonds, 84,315.33 in time certificates of deposit, 8116.12 in notes receivable and 832,384.88 in cash, and in carrying into effect the agreement above referred to, whereby Kilgore was to retain and handle said property, the plaintiff receipted said Kilgore as administrator, for the sum of 865,829.16, the aggregate of the foregoing amounts. Administration was closed and administrator discharged on February 15, 1929. Thereafter the defendant Kilgore retained such property as such trustee and furnished to the plaintiff a bond for the performance of his duties as trustee in the sum of 8131,700 with good and sufficient sureties thereon.
“5. Defendant Kilgore, while acting as such trustee, and in pursuance of said agreement, has invested and reinvested the personal property which so came into his hands as such trustee in municipal bonds and like securities. Each and every such investment made by him was first submitted to and approved by the life tenant and remaindermen. From time to time down to July 1, 1930, he paid to the plaintiff as it accrued all income or interest from such fund, which was accepted and retained by the plaintiff. Also, down to about the time this action was commenced, he rendered frequent written and oral reports to the life tenant and remaindermen concerning his administration of the trust estate. A full and complete account of his administration of said estate, showing all property which came into his hands, all investments and reinvestments made by him, all expenditures and distributions made by him, and the amount and character of the property now in his hands as such trustee, is attached to the answer of said Kilgore, and is in all respects true and correct, and the same should be and is approved. As appears therefrom he now has in his hands as the corpus or principal of said estate, time certificates of deposit aggregating $4,100, notes receivable aggregating $116.12, municipal bonds (including the premium paid therefor) aggregating the sum of $60,558.54, and cash in the sum of $1,283.03. He also has in his hands the sum of $1,131.50, which has accrued as income subsequent to July 1, 1930, which is the property of and should be paid to the plaintiff herein as life tenant.
“6. The defendant Kilgore has never at any time claimed or asserted any right, title or interest in or to said property or any part thereof, or any right to the .possession thereof except as such trustee, and in and by his answer filed in the case and at the trial in open court he tendered his resignation as such trustee, and offered and agreed to turn over and deliver such personal property to such person or persons as the court might direct. .
“7. The plaintiff herein is old and very feeble and not competent to handle and invest said personal property, and in order to protect and conserve the rights of the remaindermen in and to the same and for the protection of the plaintiff herself, the court should assume jurisdiction of the trust and appoint a successor to said Kilgore as trustee.
“8. Defendant Kilgore has never received any compensation for his services as such trustee, and the sum of $400 is a reasonable allowance therefor. The sum of $150 is a reasonable allowance for the services of his attorneys in representing him in this action.
“Conclusions op Law.
“1. The oral agreement entered into between the life tenant and remainder-men as to said personal property was and is a valid and enforceable agreement and cannot be revoked by the plaintiff in this action.
“2. Said agreement legally made defendant Kilgore trustee of an express trust with respect to said personal property.
“3. The court should assume jurisdiction of said trust, accept the resignation of defendant Kilgore as trustee and appoint a successor.
“4. The account of said Kilgore as such trustee attached to his answer should be approved and confirmed.
“5. The defendant Kilgore should be allowed $400 as compensation in full for his services as trustee, and his attorneys $150 for their services in this case, which should be paid out of the corpus or principal of said estate.
“6. Upon delivering to his successor all of said trust property, including the undistributed income which has accrued thereto, less such fees as above suggested, he and his sureties on his bond should be released and discharged from any and all further liability in this action.
“7. The costs of this action should be paid by the trustee out of the corpus of the trust estate, and the court should retain jurisdiction of said estate to the end that it may be administered under its supervision and direction.”
Upon these findings and conclusions judgment was rendered for the defendants. From that judgment this appeal is taken.
Appellant argues that she was entitled to the corpus of the estate as well as the income, and that all she was obliged to turn over to the remaindermen was what remained of the fund at her death. We have concluded that this contention is not good. Appellant took only a life estate in the personal property under the will. As a life tenant she was entitled to use only the income from the property that came to her as such life tenant. As far as this case is concerned, that includes the interest on the bonds and notes and other securities. This was held by this court in Chase v. Howie, 64 Kan. 320, 67 Pac. 822. See, also, Galloway v. Freeburg, 97 Kan. 765, 156 Pac. 756; also, Shintaffer v. Bell, 134 Kan. 101, 4 P. 2d 764. In the case of Blakely v. Blakely, 115 Kan. 644, 224 Pac. 65, this court held that a similar provision in a will created only a life estate and that it was proper for the district court to compel the life tenant to give security to account for a fund to the remaindermen.
In the case at bar, no doubt, had the attention of the probate court been called to the matter, it would have compelled Mrs. Diller to give security to account to the remaindermen for the corpus of the fund. This was not done because, as we see from the court’s findings, the very sensible arrangement was entered into by the life tenant and all the remaindermen, whereby an express trust was created for the benefit of the life tenant as well as the remainder-men. This trust was created by parol, it is true, but it has been held many times that “express trust in personal property may be created by parol.” (39 Cyc. 51.) As was said in Peck v. Schofield, 186 Mass. 108:
“A trust in personal property does not require a written declaration to support it, though when put in this form its terms are more readily and satisfactorily determined, but it may be supported by oral evidence; and when it appears that a trust of this nature has been created it becomes effectual to transfer the title and operates as a gift perfected by delivery of the property, which constitutes the body of the trust. But there must be always some qualifying act by which the donor’s ownership of the fund is divested, followed by an acceptance by the person selected to act as trustee of the duties raised by the fiduciary relation.” (p. 111.)
Here we have the qualifying act of the donor spoken of above, that is, the act of Mrs. Diller in signing the receipt for the corpus of the fund even though she knew that Mr. Kilgore still kept it in his possession. It had the same effect as though she had handed the bonds, notes and other securities to him. This act on her part, no doubt, was highly persuasive on the trial court that her intention was to create a trust in favor of herself and the remaindermen to whom she was obligated to deliver the corpus of the funds.
Once a valid and effective trust has been created it cannot be revoked by the creator without the consent of the beneficiaries. (Reddy v. Graham, 110 Kan. 753, 205 Pac. 362.) See, also, Note 38 A. L. R. 941; 2 Perry on Trusts, 7th ed., 920b. We have seen that a valid and effective trust had been created, no fraud is shown or even claimed, the trustee is carrying out the terms of the trust, and not all the beneficiaries are willing that the trust should be terminated. In fact, one of them is in court asking that the trust be continued in force. In view of these facts, the court could do nothing else in view of its findings than to refuse to terminate the trust.
There remains, then, only the question of whether there was sufficient evidence to warrant the court in making its finding as to the creation of an express trust. The court heard the witnesses and saw them testify. Mrs. Diller and her son testified that they did not understand that the conversations which are relied upon to create an express trust did so. They did, however, testify to conversations from which the inference could be drawn that the minds of all parties met on the question of the creation of an express trust. The daughter and Mr. Kilgore, the attorneys and the probate judge, testified to conversations from which the court, if it believed them to be true, was compelled to find that an express trust was created. Evidently Mr. Kilgore believed that he was trustee because he gave a trustee’s bond to account to appellant for the property which he held as trustee. We have concluded that the trial court had ample evidence upon which to base its findings.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Sloan, J.:
This action is one brought to foreclose certain liens on real estate, and involves the construction of a will.
John A. Winquist died April 18,1929, and left surviving his widow and thirteen children. His last will and testament was admitted to probate April 22, 1929. The will contained the following item, which is material for our consideration:
“Item IV. I give and devise unto my son, Albert S. Winquist, and his heirs and assigns forever, the northwest quarter of section twenty-three, township three south, range ten east (NWK, sec. 23-3-10), in Marshall county, Kansas, subject, however, to the payment by him and his successors in interest, within one year from the date of my death, of the sum of two thousand dollars ($2,000) to my daughter, Lila B. Winquist, and of the further sum of two thousand dollars ($2,000) to my daughter, Winifred Winquist, and of the further sum of two thousand dollars ($2,000) to my daughter, Mabel V. Doering, and subject, also, to the further payment by him and his successors in interest to my said wife, Hannah Winquist, for her support and maintenance, of the sum of twenty dollar's ($20) on the first day of each and every calendar month after the date of my death for and during the period of the natural life of her, my said wife, all of which payments I direct and require that my said son, Albert S. Winquist, shall make as hereinbefore specified as a consideration of this devise to him, and expressly make charges upon all the real estate in this item described.”
In item two a devise is made to a son, Martin W. Winquist, of certain real estate, subject to the payment of $30 a month to a daughter, and $20 a month to the widow, Hannah Winquist. In item three a devise is made to John Leroy Winquist and Clifford R. Winquist of certain real estate, subject to a payment of $4,000 to' a daughter, and $2,000 to a daughter-in-law, and a further payment of $40 a month to his widow. In item five a devise is made to Carl E. Winquist and Dorus L. Winquist of certain real estate, subject to a payment of $2,000 to a daughter,* and the payment of $20 a month to his widow. The same form is used in these devises as in item four herein set out. The residuary clause devises all of the remainder of his property to twelve of 'his children, naming them.
At the time the will was executed the land described in item four was mortgaged in the sum of $5,000, and subsequent to the execution of the will and on the maturity , of the mortgage the testator borrowed $5,000 from the defendant, Mattie E. Carlton, and executed to her a new mortgage on the same land, the proceeds of which were used in the payment of the mortgage. This, mortgage was not paid by the testator and was an indebtedness against the estate and a lien on the land at the time of his death.
At the time of the death of the testator he was indebted to the First National Bank of Centraba in the sum of $5,707.50, and there was not sufficient personal property to pay this indebtedness. The devisees, other than Albert S. Winquist, made contribution in a sum sufficient to pay this indebtedness.
The trial court found that the will had been properly admitted to probate; that Albert S. Winquist, on June 16, 1930, had duly rejected and renounced the devise to him and disclaimed all interest in the real estate; that the mortgage held by the defendant, Mattie E. Carlton, was a continuation of the former mortgage, and that she held a valid and subsisting first-mortgage lien on the real estate in question; that the testator did not own at his death sufficient personal property and assets to pay his debts and the costs of administration, and there was no other real property in the estate, except such as was specially mentioned and specially devised by the terms of the will; that the interest of Hannah Winquist in the real estate in question was $2,200; that her lien and the lien of the plaintiffs and the defendant, Mabel V. Doering, are of equal grade and entitled to share pro rata in surplus of the proceeds of the sale, after the satisfaction of the mortgage, interest, taxes and costs, and that the rent accrued from said land was in the amount of $292.19, which should be equally distributed among the legatees.
The defendant, Mabel V. Doering, appeals and contends that the court erred in failing to charge the mortgage indebtedness against the entire estate, and requiring that each of the beneficiaries contribute their proper share to the payment of the mortgage note.
The solution of this problem is found in the statute relating to the construction of wills and the interpretation of such statute by this court as it applies to the will in question. R. S. 22-260 provides that where any part of the real estate of a testator has not been devised or disposed of by will and the personal estate is insufficient for the payment of the debts chargeable against the estate, the undevised real estate shall be first charged with the debts, unless the will itself provides otherwise. This statute has no application to this case for the reason that there is no undevised real estate. R. S. 22-261 provides that where a devise has been made of real or personal property and it is taken for the payment of the debts of the testator the other devisees and legatees shall contribute their respective proportions of the loss to the person from whom the estate is taken, except as provided in the following section, which is R. S. 22-262, in which it is said:
“If in such case the testator shall, by making a specific devise or bequest, have virtually exempted any devisee or legatee from his liability to contribute with the others for the payment of the debts, . . .”
In Smith v. Kibbe, 104 Kan. 159, 178 Pac. 427, the court had before it a question somewhat similar to the one here under consideration. The facts, however, are entirely different. In the Smith case there was sufficient personal property to pay the debts, and the court properly held that under the statute, in the absence of any provision in the will to the contrary, the debts of a testator are primarily paid out of the personal property. The executor was directed to pay the mortgage indebtedness on certain devised real estate out of the personal property of the estate. In this case the personal property was insufficient to pay the cost of administration and the personal debts. The real estate was specifically devised to certain devisees and in each instance it was subject to the payment of certain legacies. The appellant’s legacy was made a specific charge against the real estate in question, which takes it out of the general rule that legacies are payable out of the personal estate. (Warlick v. Boone, 120 Kan. 148, 242 Pac. 135.) The statute (R. S. 22-262) appears to have been enacted to meet just this situation. The purpose of the testator, as gleaned from the will, is manifest that the devisees should be exempt from liability to contribute for the payment of debts of the estate. All of the real estate was devised and specifically charged with legacies. The mortgage in question is a continuation of the mortgage that was on the land when the will was made, and the purpose and intent of the testator clearly appears to be that this particular tract of land should remain charged with the mortgage lien, and the legatees can only take out of this specific real estate subject to such mortgage lien.
Under the terms of the will we hold that the court properly held that Albert S. Winquist renounced the devise to him. There is nothing in his conduct which would deprive him of the right to renounce the devise at the time it was made and filed with the probate court.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an original proceeding in mandamus to compel the clerk of the city court of Wichita to issue an execution for the enforcement of a judgment rendered by that court from which an attempt had been made to take an appeal, by reason of noncompliance with the new statute relating to such appeals.
The action was brought in the city court to recover money from an insurance company, and a judgment was rendered for plaintiffs on June 1, 1931. On June 11, 1931, the defendant undertook to appeal from the judgment by filing a bond substantially in accordance with the provisions of the old statute, which had been repealed by the act approved March 16, 1931. The clerk of the city court, in which an appeal bond had been filed and approved, prepared and transmitted to the district court a transcript of the proceedings in the city court. Shortly afterwards the plaintiffs filed a motion in the district court to dismiss the appeal on the ground that no notice of appeal had been given as required by chapter 229 of the Laws of 1931. A motion to dismiss the appeal was made, argued and overruled and the case set down for trial on October 19, 1931. Later the plaintiffs asked for a continuance of the case, and its motion was allowed and the case continued to November 9, 1931. Without waiting for the trial the plaintiffs applied for and procured the issuance of the alternative writ of mandamus. The district court in overruling the motion to dismiss held that there was enough in the bond filed by the defendants to constitute a notice of appeal as well as an obligation to satisfy any judgment that might be rendered against the defendant. The bond given.recited as follows:
“Whereas, the defendant Mutual Benefit Health & Accident Association intends to appeal to the district court of said county from a judgment rendered against it in favor of the plaintiff, Edith L. Brockman, et al, on 1st day of June, 1931, by the city court of Wichita;
“Now, we the undersigned, residents of said county, bind ourselves to the plaintiff in the sum of 800 dollars that said defendant shall prosecute its appeal to effect and without unnecessary delay, and satisfy such judgment and costs as may be rendered against it therein.”
This bond was in conformity to the provisions for an appeal under the old statute, which was in effect until March 16, 1931, and which provided:
“No notice of appeal shall be required to be filed or served,” etc. (R. S. 61-1003.)
The new statute provides, among other things:
“All appeals from justice of the peace and city and county courts in civil cases shall be by notice of appeal specifying the order, ruling, decision or judg ment complained of, and shall be filed in the court from which the appeal is taken within ten days from, the date of such order, ruling, decision or judgment.
“The party appealing shall file a good and sufficient bond in the court from which the appeal is taken to secure the costs of the appeal, unless, by reason of his poverty, he is unable to give security for costs, which fact shall be shown by affidavit filed in said court at the time the appeal is taken. And thereupon the appeal shall be deemed perfected.” (Laws 1931, ch. 229, §§ 1, 2.)
There are other provisions in the act that the taking of the appeal shall not stay proceedings unless a bond is given, and that an appeal from an order sustaining or overruling motions to dissolve attachment or discharge a garnishment or to vacate the levy under an execution on property claimed to be exempt, shall stay proceedings without giving a bond, and that there shall be no stay in the enforcement of judgments in forcible entry and detainer.
In this court defendant first contends that plaintiffs are not entitled to use the extraordinary remedy of mandamus, inasmuch as there is an adequate remedy at law by an appeal. It is conceded that the extraordinary remedy is not available where there is an adequate remedy at law. If error was committed it could have been corrected upon appeal at the end of the trial in the district court. Plaintiffs say that this is not adequate in that plaintiffs would be required to wait the final judgment, but it is manifest that little, if any, more time would be necessary to obtain final decision on an appeal than it would take to procure the issue of the extraordinary writ and the trial of that issue. The district court interpreted the recitals in the appeal paper and held that it contained the equivalent of a notice under the new statute, and since the notice and bond might be, if clearly stated, embraced in a single paper, there is some basis for the argument that a notice was in effect given. On this point the district court took judicial action and continued the case to a day certain upon plaintiffs’ application. If plaintiffs had availed themselves of this early opportunity to try the appeal and obtain a decision as to the sufficiency of the notice, there would have been little, if any, delay and no occasion to resort to the extraordinary writ of mandamus. The code provides that—
“The writ may not be issued in any case where there is a plain- and adequate remedy in the ordinary course of the law,” etc. (R. S. 60-1702.)
Cases touching this question are Hall v. Stewart, 23 Kan. 396; Railroad Co. v. Shinn, 60 Kan. 111, 55 Pac. 346; Lynn v. McCue, 99 Kan. 400, 161 Pac. 613.
Plaintiffs cite and rely on Powell v. Bradley, 86 Kan. 198, 119 Pac. 543, but there no appeal had been taken, nor had there been any adjudication as to the sufficiency of the notice to effect an appeal, and hence it was held that the remedy was available. Here the court ruled that a notice of appeal had been given and that an effective appeal had been taken. The rule is that mandamus cannot be used to correct errors or revise judicial action. In Railroad Co. v. Shinn, supra, it was said:
“The district court, in dismissing the appeal, acted judicially, and mandamus will not lie to control discretion or to revise judicial action. The fact that the ruling of the inferior court is plainly erroneous is no ground for mandamus where the question of dismissal is properly within its jurisdiction. Nor will mandamus lie even though the party aggrieved has no right of appeal or other remedy to review the action of the court, as the want of such remedy does not of itself entitle the party aggrieved to the extraordinary remedy of mandamus.” (p. 112.)
Our conclusion is that plaintiffs were not entitled to the extraordinary remedy of mandamus.
Because of the diversity in the opinions of the courts in the steps necessary to an appeal under the new act, and also that a declaratory judgment is asked, it is thought not to be improper and possibly helpful to interpret that statute and state the view of the court as to the matter of notice in taking an appeal. The defendant filed a form of appeal commonly used for years in taking an appeal under the old and repealed act. Under that act, as we have seen, no notice of appeal was necessary. The legislature in the new enactment, for reasons of its own, provided that appeals should be taken by virtue of a notice. It made that an essential step. It cannot be taken by the filing of a stay bond. An appeal is effective when the notice is filed and security for costs given. Unless a stay of 'execution is desired no bond to pay any judgment that may be rendered is required to be given. The notice is made the paramount step and a prerequisite to an effective appeal. It Was competent for the legislature to prescribe the conditions upon which an appeal may be taken and it has made the notice a primary and essential requirement. It is a simple and easy method of obtaining a trial de novo in the district court. All that is required is to file the notice in the court that rendered the judgment within the time limited. It is not even required that the notice shall be served upon the adverse party, but simple and easy as it is, it has been made indispensable and the appealing party cannot substitute some other method which he may think is equally good. The recital in the bond does not, we think, measure up to the requirement of the new act as a preliminary to the bond given by the defendant. It states that it intends to appeal. When? That may be sometime in the future, and besides he might change his intention. The required notice is that he is appealing now and this is to be shown by the notice he is filing. We think that a distinct formal notice should be filed, one which affords the appellee definite information that an appeal has been taken and that another trial was to be had. As a remedy of mandamus was not available to plaintiffs, the judgment necessarily must be a dismissal of the proceeding. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover money due for services in drilling an oil and gas well.
It appears that defendant owned some oil and gas mining rights in some Wilson county lands. He hired plaintiff to drill some wells for him at an- agreed compensation of 90 cents per foot. Extra charges of $25 per day for certain services which sometimes arose in finishing such wells were stipulated. The producing horizon in that locality was in a so-called New Albany sand reached at a depth of 452 to 660 feet. Plaintiff drilled one well to a depth of 439 feet and was paid therefor. He drilled a second well to a depth of 479 feet and received the agreed compensation of 90 cents per foot. A dispute arose between the parties touching plaintiff’s per diem charge of $177 for extra services in finishing this second well. Defendant resisted that claim and asserted that plaintiff had used too strong a charge of dynamite in bringing in the well and had thereby ruined it, to defendant’s damage in a similar sum of $177. This dispute, however, did not prevent the parties from making an agreement that another well should be drilled. Accordingly a third well was drilled to a depth of 512 feet. Payment therefor was refused and plaintiff brought this action to recover on the disputed item of $177, and for drilling the third well, $460.80, a total of $637.80.
Defendant’s answer alleged that the disputed claim and counterclaim of $177 was waived by plaintiff and defendant in the agreement that the third well should be drilled, and that by that agreement plaintiff also bound himself to drill the well to any depth defendant desired, at 90 cents per foot, but not to exceed 1,000 feet. He also alleged that when the depth of 512 feet was reached, plaintiff declined to drill deeper unless defendant would pay him $1.65 per foot; and that defendant declined to pay such price; and plaintiff moved his drilling rig, leaving the well unfinished and causing damages to defendant in the sum of $774.20.
Jury trial, verdict and judgment for plaintiff as prayed for, and appeal by defendant.
In the course of the trial, either by abandonment or by the jury’s verdict, the controverted issues raised by the pleadings disappeared; and the only error assigned by defendant relates to the sustaining of plaintiff’s demurrer to defendant’s evidence in support of his claim for damages because of plaintiff’s refusal to drill the third well to a depth of 1,000 feet.
It is not- clear that this question is open to review. According to plaintiff’s evidence, when the depth of 512 feet had been reached, defendant directed plaintiff not to go any deeper. Another witness testified, “Wyckoff asked Brown if he wanted to go on down, and Brown said, ‘No, quit it.’ ” While defendant denied that conversation, it is manifest from the verdict that the jury gave it credence. The instructions are not submitted for our inspection, but we are bound to assume that they adequately dealt with the legal consequence which hinged on the jury’s-determination of that issue of fact. And if defendant did tell Wyckoff to quit at the 512-foot level, any and all questions of damages for his alleged failure to drill to any greater depth went out of the case.
Passing that point, it is clear, we think, that defendant’s evidence did not support a claim for damages for plaintiff’s failure to drill to a depth of 1,000 feet. Even defendant’s testimony did not show that plaintiff bound himself to drill to that depth. According to that testimony it was to be left to defendant’s discretion how deep the well should be drilled. Now, out of his own cerebral processes he in effect says his discretion would not have called a halt on the drilling until the full depth of 1,000 feet had been drilled. Yet the maximum depth of the oil- and gas-bearing sand in that locality was 660 feet. Defendant cannot say what any additional depth, if any, would have developed production of oil or gas. He certainly would have wanted drilling to stop if and when production was reached; and naturally he would have required drilling to stop if or when the geological structure showed that no production was in prospect. Surely such an indefinite contract, if made, could not be the basis of an action for damages. Moreover, no damages were shown. Defendant testified that if he should procure another driller and drilling outfit it would cost various substantial items of expense, but he never did expend any money for the further drilling of this well. So he failed to show any recoverable damages against plaintiff. If the contract was as testified by defendant, it was too indefinite to be enforced. If it was not subject to that infirmity, the damages pleaded were in fact never sustained, and were altogether too speculative to be the basis of a recovery. (Artwein v. Link, 108 Kan. 393, 195 Pac. 877, and citations; Childers v. Tobin, 111 Kan. 347, 206 Pac. 876.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Sloan, J.:
This was an action to enjoin the defendants from constructing a ditch across the land of the plaintiffs. The defendants prevailed, and the plaintiffs appeal.
The Riverside drainage district of Sedgwick county has been before this court in a previous case. (State, ex rel., v. Riverside Drainage District, 123 Kan. 46, 254 Pac. 366.) In that case the trial court made extensive findings, set out in the opinion, which were approved by this court as well as the conclusions of law reached by the trial court in so far as they affected the drainage district. In that case the court found that the district had, through the maintenance of a certain dike, dam and ditches near the center of section seven, created a public nuisance, and ordered and directed that such dike, dam and ditches be removed and the nuisance abated. This court, in an opinion denying a motion for rehearing, held that the trial court had jurisdiction to see that its orders were carried into effect, and that it might modify its decree as necessity and justice required. (State, ex rel., v. Riverside Drainage District, 123 Kan. 393, 255 Pac. 37.) In accordance with the judgment and order of the court the drainage district proceeded to carry into effect the decree, causing surveys, plans and specifications to be made and adopted as provided by law, which included the construction of a ditch beginning near the center of section seven, extending into a Watercourse known as the Little,Slough, and following this watercourse into the Arkansas river. This ditch extended through the land of the appellants. An election was held for the purpose of voting bonds for the construction of the ditch, which resulted in a majority of the votes being cast against the bond issue. Thereupon the Riverside drainage district entered into a contract with the Protection drainage district for the construction of the ditch at the cost of the Protection drainage district, with the exception of a payment of $2,000 and certain incidental expenses by the Riverside drainage district. This agreement was submitted to the district court, and the court, after an examination of the matter, found it to be a compliance with and a fulfillment of the judgments and decrees theretofore made by the court, and approved the contract. The work was in process, although nothing had been done on the land of the appellants, at the time this suit was filed.
The principal contention of the appellants is that the appellees did not comply with the statute in condemning the right of way for the ditch over and across their land. The condemnation proceedings were had under and by virtue of R. S. 24-438 et seq., and the procedure appears to have been regular in all respects. No appeal was taken or attempted to be taken from the report of the commissioners. The appellants contend that this statute was repealed by the enactment of R. S. 26-101 et seq. The principal difference between the two statutes is that in the one the report of the commissioners is required to be filed with the county clerk and the money paid to the county treasurer, and the parties have ten days in which to appeal from the report to the district court. In the other the report is filed and the money paid to the clerk of the district court, and the parties have thirty days in which to perfect an appeal.
The contention of the appellant cannot be sustained. It is, of course, an elementary rule that where two statutes dealing with the same subject matter cannot be reconciled so as to give reasonable operative effect to both, the one which is the last expression of the will of the legislature will prevail. (Arkansas City v. Turner, State Auditor, 116 Kan. 407, 226 Pac. 1009.) This court has also said that where statutes passed at different times are included in the same revision without change the court will go back of the revision, and the statutes will be interpreted in the light of their origin. (Lemen v. Kansas Flour Mills Co., 122 Kan. 574, 253 Pac. 547.) It appears that R. S. 26-101 et seq. is the last expression of the legislature on the subject of condemnation, and if its provisions cannot be reconciled with the former statutes it must be held to have repealed the former statutes. R. S. 24-438 et seq. is a part of chapter 215 of the Laws of 1905, which provided for the organization of drainage districts, vesting such districts with certain powers and prescribing a procedure for the exercise of the power granted. Among other things it is vested with the power to appropriate private property for the use of the district in widening, deepening or otherwise improving any natural watercourse, or for the construction of any levee, canal or drain, and a definite procedure for the exercise of this power is contained in the statute. The statute is therefore a part of a general scheme providing for the creation of drainage districts and the exercise of the power necessary to carry out the purpose of such districts.
R. S. 26-101 et seq. was evidently intended to prescribe a general procedure for the exercise of the right of eminent domain. It appears, however, to have limited its scope to corporations. It does not include cities nor the condemnation of lands by the state which possess unusual historical interest. A special procedure is provided for the exercise of power of eminent domain by cities and the state. (R. S. 26-201 et seq.)
It was the manifest purpose of the legislature to retain in force and'effect R. S. 24-438 et seq. for the use and benefit of drainage districts. There is no irreconcilable conflict between the two statutes. There is very little difference in the preliminary steps prescribed for the corporation and the drainage districts. The only difference is in the place of the filing of the report, the payment of the money and the procedure for appeal. The completion of the preliminary report in accordance with the terms of either statute sufficiently advises the landowner of the purpose of the drainage district and he is given an adequate remedy at law under either statute. We hold that R. S. 24-438 et seq. was not repealed by the subsequent statute, and that a compliance with this statute was sufficient as against an injunction to vest the drainage district with the right to construct the ditch in question.
It is contended by appellee that since the statute provides an adequate remedy at law for the landowner, that injunction will not lie. The preliminary steps were regularly taken. The landowner had the right to appeal from the report of the commissioners — a complete remedy in damages. The rule is too well established to require the citation’ of authorities that where the party has an adequate and complete remedy at law he cannot proceed by injunction.
In the case of Railway Co. v. City of Hiawatha, 95 Kan. 471, 472, 148 Pac. 744, this court said:
“When the taking is by a governmental subdivision of the state the public credit with the power of taxation behind it affords ample security for the fulfillment of the obligation to make compensation. Consequently when the state acts directly or mediately through the agency of a municipal corporation all that is required is that a remedy be provided to which the property owner may resort to have his proper compensation assessed and paid.”
This rule was followed in the case of Sullivan v. City of Goodland, 110 Kan. 359, 203 Pac. 732.
Where an agency of the state acting under authority of law appropriates private property for its use, injunction will not lie because of irregularities in the procedure, unless the property owner has been deprived of the right of proper compensation. The drainage district in this case appears to have proceeded regularly in the condemnation of the land in question, exercising a power granted it by the legislature in accordance with the procedure prescribed in the act. There is no contention that the district is insolvent, and consequently the landowner had an adequate remedy in damages.
It is contended by the appellants that the district was without authority to proceed with the improvement because the voters defeated the proposal at an election. It must be remembered that the drainage district was acting under the mandate of the court to remove and abate a public nuisance which had been created by the district. The district is vested with express power to enter into contracts with other drainage districts for the improvement of any natural watercourse to prevent its overflow where the overflow is likely to cause injury. (R. S. 24-407, ¶ 14.) The obligation created by the contract was clearly within the power of the district and the payment provided for therein can properly be made out of the general funds of the district as a part of its current expense. (State, ex rel, v. North Topeka Drainage District, 133 Kan. 274, 299 Pac. 637.)
A careful examination of the record fails to show reversible error, and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action, which was in the nature of ejectment and partition, was brought by Lottie A. West, the second wife of Elijah F. West, who died on July 13,1930, leaving his widow, the plaintiff, and four children by a former marriage, who have been named as defendants. Before his marriage to plaintiff he had made a will in which he devised and bequeathed to his four children his property, consisting of real estate and personal property valued at about $100,000. This action involves the validity of an election by the widow under the will and a family settlement as to the disposition of the estate of the deceased. The jury made findings of fact upholding the election and the family settlement, and the judgment of the trial court was rendered in favor of the defendants. Plaintiff appeals.
It appears that the day following the burial of the deceased testator the widow and four children of the deceased and their spouses came together at the Coats State Bank, where the defendant had transacted business and where he had a lock box in which the will and other papers were kept. The will was opened and read in the presence of the widow and all the heirs, and the attention of plaintiff was called to the fact that she was not named in the will. She was asked whether she claimed under the law or under the will. There is testimony that she said she “realized that she could claim one-half of the property but did not want that; she wanted to settle it according to Daddy’s will.” She was told by the banker that they had to have a contract of family settlement showing the disposition of the property, and that he was not competent to do that; that they should have a lawyer to write the contract and that it should be done when the will was probated. This was agreed to by all of them, they examined the contents of the lock box which contained securities of one kind and another and listed the specific property which went to each of the heirs under the will, and no objection was made by plaintiff to anything that was done on that day. Next day they went to Pratt to obtain the assistance of attorneys in the preparation of the family settlement and the probate of the will. Crick & Bucklin, attorneys, were employed to prepare the contract of family settlement. The contract was dictated by the attorneys in the presence of all the parties, and as each paragraph was dictated it was discussed and plaintiff and others made suggestions of changes in the contract. The attorneys explained to plaintiff what her rights were under the law, and she replied that:
“She knew she was entitled to one-half the property but she did not want that share, she said she had not earned the property, that it was made years ago and she did not want them to think she had married the children’s father for his money.”
On Saturday when the contract was completed they went to the probate court, but found that he was not present and they returned home. Two days later and on Monday, they went back to the probate court with their attorney, and the probate judge then explained to Mrs. West the law with reference to her share in the estate and to what she was entitled under the law of descents and distributions. She then stated that she wanted to abide by the will of her husband and a family settlement agreed upon. A written election was then entered, and is as follows:
“The undersigned, widow of Elijah F. West, deceased, having had fully explained to her, by said court, the provisions of the last will and testament of the said Elijah F. West, her deceased husband, and her rights under the same, and also the provisions of the law concerning descents and distributions, and her rights under the said law, in the event of her refusal to take under the will, and being fully advised and informed in the premises, hereby waives any right, title, interest or claim she may have in and to the estate of the said Elijah F. West and consents that the said last will and testament may be admitted to probate and taken as and for the last will and testament of the said testator. She makes this election and declaration for the reason that the children of the said Elijah F. West, as the devisees in his last will and testament, have entered into a contract with the undersigned dated July 19, 1930, by the terms of which agreement the undersigned becomes the owner of and is entitled to a one-fifth interest in that part of the estate of the said Elijah F. West not specifically devised by the terms third, fourth, fifth and sixth paragraphs of the said last will and testament.
“Witness the hand of said widow this 19th day of July, 1930.”
By the terms of the contract entered into, the widow became the owner of and is entitled to a one-fifth interest in that part of the estate not specifically devised and is spoken of as a child’s part. On that day the will was probated.
The plaintiff insists that she is entitled to one-half of the real estate involved for the reason that the election is illegal and is void and the family settlement and deeds that were made in pursuance of the contract are void for want of consideration. It is also insisted that there was error in restricting the arguments of the plaintiff to the jury; in refusing to exclude witnesses during the trial; in restricting cross-examination of defendants’ witnesses; in excluding evidence offered by the plaintiff in the admission of evidence over objection of the plaintiff, and the abuse of discretion by the court throughout the trial.
The important questions raised on this appeal relate to the validity of the election made by the widow as well as the family settlement which was reduced to writing and signed by the widow and the children of the testator. There is no dispute as to the signing of the family agreement nor as to the signing of the election by the plaintiff, but plaintiff says she did not understand and was not told by anyone before the execution of the papers that she was entitled to one-half of the estate notwithstanding the will, nor of the fact that she was entitled to household goods and an automobile. She did testify that she did know at the time of the first family meeting at the Coats Bank on Friday, that she could have one-half of the estate if she would ask for it; that she was not going to ask for it, and did not ask for it, but she said this statement was made before the will was produced for probate.. She further testified that she had said she only wanted a child’s part in the estate. She admitted that the probate court had a conference with her in a room of the court, but added that the probate judge did not explain her rights under the law, and further that Crick & Bucklin, attorneys, who prepared the contract, did not tell her of her rights under the law before she signed the contract or the written election. It is clear that there was abundant proof by witnesses, some of whom were disinterested, to sustain the finding that she had been fully advised of her rights in the estate under the law and had repeatedly stated that she desired the property to go to the children of the testator as specifically devised and that she would take a child’s part out of the residue. She gave her reasons for her decision, and some of her own testimony in the case tends to confirm that given by the witnesses for the defendants. She willingly went with the heirs of the deceased to have a contract drawn to carry out the family settlement and participated in the discussion of its provisions. She signed the contract without protest or objection and then went before the probate court, where the judge explained to her for about thirty minutes the provisions of the will, her rights under it and her rights under the law, and his testimony is that this was done and that the statutes relating to the subject were read to her before her election was made, which was after the will was presented for probate. The probate judge testified that he was satisfied that the plaintiff fully understood the law as explained to her and her rights under it. The evidence is such as to fully sustain the findings made that plaintiff knew that she was an owner and entitled to one-half the estate before she signed the contract of settlement and made her election. With the character and volume of the testimony presented upon which the findings are based it must be held that the controversy is ended in this court so far as the questions of fact therein are involved. (Buchanan v. Gibbs, 26 Kan. 277.)
Some questions of law and procedure are raised by the plaintiff on this appeal. One is that the election made by her does not conform with the provisions of the statute and also because the election was made after’the date named in the instrument. That instrument purports to have been signed on July 19, 1930, whereas it was in fact signed on July 21, 1930. The writing was prepared on Saturday, July 19, and the date affixed on the expectation that it would be presented to the probate court on that day after the will had been filed for probate. The parties, including the plaintiff, went to the office of the probate court after the writings' had been completed and there found that the probate judge was out of the city. They then decided to return on Monday following, and on that day they returned to the probate court, where the will was filed and admitted to probate and the election.made. There is no question as to the time when the will was filed for probate or of the time when the election was made in the probate court, and .no doubt the records in that court will show that it was on July 21, 1930. The fact that it was dated two days before does not discredit or 'invalidate the election. If no date or any wrong date had been affixed, it would not have affected the validity of the election. The court, in accordance with its duty, would have filed it as of the date.it was actually made. As to that time there is no dispute nor is there any real question but that the election was made after the will was filed for probate.' It was competent for the parties to show the true date of the instrument. The date inserted in the writing was a formal and not an essential part of the election, and the date written at the end of the election does not fall within the rule that a written instrument may not be varied by parol proof. It has been said:
“As a general rule it is admissible to show by parol the true date of an instrument, even though such evidence may tend to vary the writing, or to supply the date when it is omitted, for the date is not generally such an important element of the agreement that the reason of the rule against parol evidence applies thereto, and in addition to this the evidence usually amounts to mere correction of a mistake.” (22 C. J. 1208. See, also, Shelton v. Dunn, 6 Kan. 128.)
There is no ground for the complaint that the terms and manner of the election did not accord with the statutory provision respecting it. (R. S. 22-246.) It was made by the plaintiff in person in open court after the provisions of the will, her rights under it and under the statute had been explained to her. She then and there chose to take under the family settlement, the terms of which were recited in her election, including the share she was to receive under the family settlement. The election made is a clear expression of an election to accept a share of the estate under the family settlement, which confirmed and carried out certain parts of the will, modified other parts, and in which plaintiff explicitly relinquished all rights she had under the law of descents and distributions, and agreed that the will might be admitted to probate with the exception that she have a certain share as specified in the agreement, and no reason is seen why it should not be upheld.
It is argued that the compromise contract and the transfers under it were without consideration, that she was entitled to one-half of the estate under the law and therefore no consideration moved to her. While this contention is made in brief and oral argument, it appears in the record that in the presentation of the motion for a new trial the plaintiff withdrew her motion for a new trial upon the issue of want of consideration, and hence she is not in a position to press or rely on that issue as a ground of error. Besides the withdrawal of the issue there was the advantage of an amicable and economical settlement in which the parties avoided contentions as to the division and disposition of the shares in the estate through formal and lengthened procedure in probate court, the gaining of early possession of the shares of each as well as the avoidance of possible litigation as to the rights of the several heirs. It has been said: “That family settlements are favorites of the law, and when fairly made should not be disturbed by those who entered into them.” (Riffe v. Walton, 105 Kan. 227, 182 Pac. 640.) In the opinion in the Riffe case, where it was contended that the widow would have received more under the statute than she did under the family settlement, it was said:
“The amount or value of the share set apart to her as dower, it is said, was much less than the share to which she was entitled under the law, but if the settlement was fairly made and covered all the property, it cannot be set aside because that assigned to her may have been less than she was entitled to under a statutory distribution.” (p. 232.)
See, also, Conrad v. Conrad, 36 Pa. Sup. Ct. 154; Hilton v. Rackey, 37 App. D. C. 83; Hibbard v. Kent, 15 N. H. 516.
A further consideration is that in the will three of the children were each devised a tract of land of which they were in possession, and to the fourth, Lillie McAdoo, the devise was only a life estate in the tract she occupied, the remainder at her death to be divided equally among the other children. Under the agreement and what was deemed to be justice toward her, she was given the absolute title to that tract. The setting aside of the agreement and election would necessarily materially affect the rights of the other children under the will. The settlement made between the children agreed upon with the plaintiff was itself a consideration and the plaintiff should not be permitted to make a revocation that would injuriously affect-others. (40 Cyc. 1985.)
Complaint is made that the court erred in refusing to grant plaintiff’^ request that witnesses, excepting the parties, be excluded from the court room until they were called to testify. That was a matter within the discretion of the court and nothing is seen in the record of the proceedings to indicate that the ruling was an abuse of that discretion. (State v. Sweet, 101 Kan. 746, 168 Pac. 1112.)
A number of objections are made as to the admission and exclusion of evidence restricting the cross-examination of defendants’ witnesses, and restriction of the argument of counsel for plaintiff, all of which have been considered, but we find nothing material in them, nothing that would justify discussion.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by a board of county commissioners as a depositor in a failed bánk, against the receiver of the bank. A demurrer to the petition was sustained, and plaintiff appeals. The demurrer was sustained because of noncompliance with R. S. 1930 Supp. 9-130, which reads:
“All claims of depositors and other creditors must be filed with the receiver within one year after the date of his appointment, and if not so filed such claims shall be barred from participation in the estate of such bank.”
The county owed the Road Supply and Metal Company. The county clerk drew a check on the county’s account in the Horace State Bank, and received a draft for $2,700, which was sent to the Road Supply and Metal Company. The bank failed, and the draft was not paid. The county filed with the receiver a claim for the balance of its account remaining after the check for $2,700 was honored. The Road Supply and Metal Company sued the county, obtained judgment, and the judgment was paid. The county then filed its claim for $2,700 with the receiver. The receiver was appointed on July 8, 1927, and the claim was filed on December 18, 1930. The county’s deposit was a general deposit, which included money obtained by taxation, apportionable to various funds, state, county, township, and school district.
The county cites the familiar cases relating to nonapplication of general statutes of limitation to the state and to subordinate political divisions, such as counties, in litigation to enforce governmental interests. The entire subject was carefully considered in an opinion by the late Justice Mason, in the case of Osawatomie v. Miami County, 78 Kan. 270, 96 Pac. 670. In a sense, a county does no business except public business; but as the opinion referred to shows, no attribute of sovereignty or governmental function is involved in the matter of a county keeping a bank account. Power to'levy, collect and distribute taxes is governmental. The doing of ordinary business is not governmental, and in this instance the demand of the county originated from the relation of debtor and creditor between a bank and a general depositor.
The statute quoted is a statute enacted to enable the state to discharge an assumed public duty efficiently. Banking is affected with a public interest, and is regulated for the protection of that interest. When a bank fails, a state official, the bank commissioner, takes charge, and appoints a receiver who liquidates the affairs of the bank, under supervision of the bank commissioner. To enable the state, in the exercise of its regulatory function, to wind up the affairs of the bank in the most businesslike and beneficial manner, claims must be promptly presented, and one arm of the state, a county which is a depositor, has no license to thwart, by sheer negligence, the effort of another arm of the state, the bank commissioner and his receiver, to accomplish the public purpose.
The result of the foregoing is that if the statute were a statute of limitation, there would be good ground for holding it applies to a county as a depositor in a failed bank. But the statute is not a statute of limitation. It is a nonclaim statute, similar in purpose and effect to the statutes requiring presentation within limited periods of claims against decedents’ estates. According to what this court regards as the better view and the weight of authority, such statutes apply to a common claim of the state, and of a county. (Hill Ex. v. The State, 23 Ark. 604; The State, ex rel., v. Edwards, Adm’r, 11 Ind. App. 226; In re Jacob’s Estate, 119 Ia. 176; Mitchell’s Estate, 2 Watts [Pa.] 87; The State v. Crutcher’s Adm’r, 2 Swan [32 Tenn.] 504.)
The cited decisions, found in 24 C. J. 325, recognize the general public policy of preserving public rights, revenues and property from consequences of neglect of public officials; but they enforce an equally cogent public policy which recognizes the imperative need that estates of deceased persons shall be speedily settled and finally closed, for the benefit of executors and administrators, creditors, heirs, and devisees, and for the general security of titles. Discus.sions of the necessity for stringent enforcement of nonclaim statutes may be found in the opinion in the case of Collamore v. Wilder, 19 Kan. 67, 81, and in the opinion in the case of McDaniel v. Putnam, 100 Kan. 550, 554, 164 Pac. 1167.
The statute under consideration was designed to prevent the mischiefs which experience had demonstrated attended the old dilatory method of conducting bank receiverships, and was designed to secure the great benefits to be derived from prompt and businesslike liquidation. The mischiefs would continue, and the benefits would not be realized, if some general depositors were exempt from operation of the statute, while other general depositors were not.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages for breach and abandonment of a real-estate lease. Judgment was for defendants. Plaintiffs appeal.
Appellants owned a business building in Emporia. They rented it to appellees for a term of five years. It was occupied by appellees as a shoe store. After appellees had occupied the building some months the shoe business did not prosper and Axe asked Marmont if he would transfer the lease. It is about this conversation that this case turns. Axe testified that Marmont asked who he was figuring with and was told it was the Samuel Shoe Company, and that Marmont stated that he would look them up and if he thought they were reliable enough it would be all right.
Marmont testified:
“Mr. Axe came lo me and told me that his business had not gone over as he expected it would. That he was afraid he was unable to make a go of it. He wanted to know if I would transfer the lease, provided he got a suitable tenant. I told him, 'Yes, I would do anything to help him out in the thing.’ I asked who he was figuring with. He told me he was figuring with the Samuel Shoe Company. I told Mr. Axe at the time, 'All right, I would look the parties up, and if I thought they were responsible enough, it would- be all right with me.’'’
It will be seen that the only substantial difference in the conversation as testified to by both parties is that Axe claims Marmont used the word “reliable” and Marmont claims he used the word “responsible.”.
Some time after the above conversation Axe sold his business to the Samuel Shoe Company. This company occupied the building in question for some months. It paid the rent to Marmont. After the company had been in the building about six months Marmont refused to assign the lease to it and it moved out of the building and vacated it. After a short lapse of time Marmont rented the building to another tenant, but at a lower rental. Suit was brought for the difference between the rental for the balance of the five-year term at the price appellees had agreed to pay, and the price at which Marmont was able to rent the property.
The petition alleged the lease and the abandonment and the amount at which appellants were able to lease for the balance of the term. The answer alleged that plaintiffs agreed to release appellees. It further alleged that if appellants suffered any damages it was due to the willful acts on the part of appellants in refusing to accept the Samuel Shoe Company, a corporation, as tenant; that the corporation would have remained in the premises, and would have paid appellants the money due under the lease, had appellants accepted them as tenants and given them a lease. A general verdict was returned in favor of appellees and the following answers were made to special questions:
“1. Was the Samuel Shoe Store Company, a corporation, financially able, ready and willing to comply with the terms of the lease and pay the rentals as expressed in said lease? A. Yes.
“2. Was said corporation ready, willing and able to pay the rentals on said property in question? A. Yes.
“3. Was the plaintiff willing to accept the Samuel Shoe Company as a tenant and look to it for payment .of the rentals? A. Yes.
“4. Had the plaintiff been willing to accept the Samuel Shoe Company as a tenant, would said corporation have remained in said property and paid the rentals and complied with the terms of said lease? A. Yes.
“5. Did the plaintiff state to Mrs. Axe that he had agreed to turn the lease to the buyer of the Axe store provided the purchaser was responsible and reliable? A. Yes.
“6. Did the Samuel Shoe Store Corporation purchase the Axe property with the understanding and agreement to assume and become responsible for the performance of the lease in question? A. Yes.
“7. Had the plaintiff accepted the Samuel Shoe Store Company as a tenant and permitted it to -assume said lease, would said plaintiff have sustained any loss or damage? A. No.”
Judgment was entered accordingly. From that judgment this appeal is taken.
It will be noted that the special findings sustain the allegations pleaded in the answer that appellants could have avoided any damages by accepting the Samuel Shoe Company as a tenant. Appellants argue that these findings are not conclusive of the case. Their position is that they had an absolute right to choose the person to whom they wished to lease their property, and since they did not see fit to assign the lease between themselves and Axe to the Samuel Shoe Company that ended the matter and they had a right to look to appellees for the rent for the balance of the term. We cannot agree with this contention of appellants. Admitting the contention of appellants that there was no agreement on their part to accept the Samuel Shoe Company for a tenant, what was appellants’ duty? Clearly it was to do everything they reasonably could to lessen the injury they were about to suffer on account of losing Axe as a tenant. (Wilson v. National Refining Co., 126 Kan. 139, 267 Pac. 26; Lawson v. Brohmann, 116 Kan. 102, 226 Pac. 252.)
We have concluded that this is a case for the application of the rule laid down in Lawson v. Callaway, 131 Kan. 789, 293 Pac. 743. There it was said:
“Where a tenant under a contract to pay rent on real property abandons the property and notifies the landlord of that abandonment, it is the duty of the landlord to make a reasonable effort to secure a new tenant for the property and obtain rent therefrom before he can recover rent from the old tenant under the contract.” (Syl.)
Here the findings of the jury, amply sustained by the evidence, are to the effect that when Axe abandoned his lease and turned the premises over to the Samuel Shoe Company that company was able, ready and willing to assume all the obligations of appellees under the lease and to continue to occupy the premises. Had appellants accepted this company as a, tenant they would not have been damaged in the least. What the motive of appellants was that prompted them to reject the Samuel Shoe Company as a tenant is not material. Attention is called to the following language in Wilson v. Refining Co., supra:
“Where a party seeks redress for the wrong of another, the law requires that he shall do whatever he reasonably can and improve all reasonable opportunities to avoid the consequences and to lessen the injury.” (p. 144.)
The record here is clear that reasonable action on the part of appellants would have prompted them to have accepted the Samuel Shoe Company as a tenant.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Sloan, J.:
This was an action to determine the ownership of an attached automobile. The plaintiff prevailed, and the interpleader appeals.
The defendant was indebted to the appellee on a judgment obtained in Oklahoma, and on March 1, 1930, a suit was filed on this judgment in Kansas and an order of attachment issued and levied on the automobile in question, which was on that day in Kansas. C. C. Lowry, a brother of the defendant, intervened and claimed to be the owner of the automobile.
The only question the trial court had before it was whether the defendant was the owner of the automobile at the time it was attached. This question was submitted to a jury and the jury returned a verdict in favor of the appellee.
The appellant contends that the verdict is contrary to the evidence. At the time the order of attachment was served the automobile was in possession and control of the defendant, and he stated to the officer that the car belonged to him. It had been registered in his name in Oklahoma. He worked on his father’s ranch in Oklahoma and paid for the automobile by check drawn on his father’s account, which he had a right to do. It was the custom of the defendant and his brothers to draw on the father’s account when they needed money, and the bank was instructed to recognize and pay the checks. There was testimony on the part of the appellant tending to dispute this evidence, which presented a question of fact for the jury to determine. The trial court approved the verdict. This court will not weigh conflicting evidence, and is bound by the finding of the trial court when supported by evidence.
The judgment is affirmed. | [
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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 claimant. Respondent appeals.
Appellee was injured while in the employ of the Vulcan Coal Com pany. Compensation was paid him for some weeks and then a hearing was had before the commissioner of workmen’s compensation. As a result of this hearing a finding was made that appellee had been totally disabled for a number of weeks, but had completely recovered before the date of the filing of the application for compensation. Accordingly a lump-sum payment was awarded. Payment of this amount was tendered the workman by appellants. From this finding and award an appeal was taken by the workman to the district court. That court sustained the finding and award of the commissioner.
Within a few days after the rendition of the judgment sustaining the finding and award of the commissioner appellee filed with the commissioner of workmen’s compensation an application for review and modification of award upon the ground that the award was inadequate, and for the reason that the incapacity and disability of the claimant had increased. When this application came on to be heard appellants objected to the consideration of it on the ground that all the issues sought to be raised by it had been settled by the former hearing. This objection was overruled and the applications considered by the commissioner. This hearing resulted in a finding that nothing more was due the claimant and in the affirmation of the previous award. This finding was appealed to the district court-, where appellant here again objected to a consideration of the matter oh the same ground urged as a reason for the dismissal of the second proceedings before the commissioner. This objection was overruled and the court heard the case. The result was a finding that the award of the commissioner should be overruled and that the claimant was still partially disabled. An award of payments for an indefinite time in the future was made.
From that finding and judgment this appeal is taken. Claimant bases his argument that he had a right to file the application for a review and modification of the first award on R. S. 1931 Supp. 44-528. It provides as follows:
“44-528. At any time before but not after the final payment has been made under or pursuant to any award or modification thereof agreed upon by the parties, it may be reviewed by the commission upon good cause shown upon the application of either party, and in connection with such review the commission may appoint a physician or surgeon, or two physicians or surgeons to examine the workman and report to the commission and the commission shall hear all competent evidence offered, and if it shall find that the award has been obtained by fraud or undue influence, or that the committee, or arbi trator, making the award acted without authority, or was guilty of serious misconduct or that the award is excessive or inadequate, or that the incapacity or disability of the workman has increased or diminished, the commission may modify such award upon such terms as may be just by increasing or diminishing the compensation subject to the limitations hereinbefore provided in this act; and if the commission shall find that the workman has returned to work for the same employer in whose employ he was injured or for another employer and is earning the same or higher wages than he did at the time of the accident or injury, or is gaining an income from any trade or employment which is equal to or greater than the wages he was earning at the time of the accident or injury, or shall find that the workman has absented himself and continues to absent himself so that a reasonable examination cannot be made of him by a physician or surgeon selected by the employer, or has departed beyond the boundaries of the United States, the commission shall cancel the award and end the compensation: Provided, That the provisions of this section shall not apply to an award of compensation provided for in the schedule of specific injuries in section 10 of this act.”
He points out the final payment of the award had not been made and argues that under the language of the above statute he had a right to ask for a modification of the award on the ground that it was inadequate and that his disability had increased. The contention of appellants here is that when the first award was appealed to the district court and sustained this judgment became final, as no appeal was taken from it to the supreme court.
It should be noted that the only difference between the section quoted above and R. S. 44-528 that concerns us is the addition of the words “but not after” in the new act. Hence, cases decided construing the rights of workmen under R. S. 44-528 are in point here.
We have concluded that the provision depended on by appellee in R. S. 1931 Supp. 44-528, relates to an award that provides for payments on a disability that extends into the future. Here the commissioner of workmen’s compensation had found the facts to be that the disability of appellee had ceased before the first application was filed with the commissioner. This finding and award were appealed to the district court. The court approved the findings and award. When this was done the judgment of the district court took on all the attributes of finality that any case takes that is submitted to a district court for determination. The only remedy left is the appeal provided for to the supreme court.
The reason for this is plain. When the commissioner of workmen’s compensation hears a case and makes a finding that extends into the future, he looks at an injured workman, hears the testimony of the doctors and finds what in his judgment will be the extent of his disabilities and how long the condition will last. The lawmakers knew this could not be determined with finality, so the provision for modification and review was written into the act. As far as the payments for the future are concerned this is a wise provision. The necessity for it does not exist, however, where the commission, and later the courts, are asked to look at a man and say what, his condition is at the present time, and where this is done and a finding of fact is made not looking into the future at all, but establishing a present determinable fact. That is the work courts have been doing for many years. Our system of jurisprudence provides that inquiries of this kind must have finality. This is the theory upon which the case of Kinzer v. Gas Co., 110 Kan. 574, 204 Pac. 999, was decided. See, also, Mishler v. Kelso Grain Co., 133 Kan. 38, 298 Pac. 655. In the case of Corvi v. Coal & Mining Co., 119 Kan. 244, 299 Pac. 598, which is relied on by appellee, the finding of the commissioner of workmen’s compensation, which it was sought to set aside, was directed to the future and was not a finding of a past fact, such as we are considering in this case. The opinion, moreover, has this language:
“Whether the award was procured by fraud or undue influence, and whether the arbitrator acted without authority or was guilty of serious misconduct, depends on past facts which the future may not change, and is determinable once for all. There is no element of prophecy in the determination, and in such cases successive reviews are not permitted.” (p. 248.)
The case is really an authority for what has been said here.
From what has been said it follows that the objection of appellant to the consideration of the application for modification should have been sustained.
The judgment of the district court is reversed with directions to proceed in accordance with the first award of the commissioner of workmen’s compensation, as described heretofore. | [
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The opinion of the court was delivered by
Thiele, J.:
The present appeal and cross-appeal arise from rulings on motions to dismiss the plaintiff’s action, the essential question being the corporate status of the plaintiff.
Without attempting any complete statement, the petition may be summarized thus: Plaintiff is a corporation organized under the laws of the state of Kansas; that about September 18, 1933, the defendant, the Ozark Pipe Line Company, was indebted to it in the sum of $5,000; that defendant, the Citizens Gas Company, was engaged in the distribution of gas which it received from the Ozark Pipe Line Company; that about September 18, 1933, all of the stockholders of the two defendant companies entered into a written contract with defendants Warren, Hopkins and Hale whereby the three individual defendants purchased all of the stock of the two corporate defendants, in which contract provision was made for the payment of $5,000 to the plaintiff on the debt due to it. Refusal to pay was alleged, and prayer was for recovery. Without going into detail, certain of the defendants demurred to the petition and from an adverse ruling appealed to this court, which sustained the rulings of the trial court (Beeler & Campbell Supply Co. v. Warren, 149 Kan. 135, 86 P. 2d 482). Thereafter and oh February 27, 1939, each of the corporate defendants and the individual defendants collectively, filed separate, but substantially identical, motions to dismiss 'the action for the reasons that on December' 31, 1932, the charter board of the state of Kansas forfeited the, charter of plaintiff for its failure to file its annual statement and pay its annual fee, as shown by the certificate of the secretary of state attached to the motion; that the:'plaintiff had made no application to .the charter board for reinstatement of its charter; that the plaintiff was”dissolved and its'charter forfeited long before the filing of the action, and.at the timé o.f the filing plaintiff had no legal existence as a corporation or otherwise and had no legal right to maintain,the..action. .• ¡ ;
On April 19, 1939, the plaintiff filed its answer to,the several motions in which it showed that on March 22, 1939, the plaintiff had made application for reinstatement, restoration and renewal of its charter; that it filed its annual reports for the yéárs 1931 to 1938, both inclusive, and had paid its license fees and all other fees in connection therewith, and that the secretary of- state had duly issued his certificate to the effect the corporation was in good standing.' •Copies of various receipts and certificates were attached as exhibits. Particular reference was made by quotation from it to G. S. 1935, 17-244, and it was alleged that plaintiff corporation had been fully restored to all of its rights the same as if its articles of incorporation had never become inoperative, etc., and it prayed the motions to dismiss be denied and the cause heard on its merits.
After consideration, the trial court sustained the motions to dismiss of all defendants except the Ozark Pipe Line Company, its motion being denied. The plaintiff appeals from the rulings adverse to it, and the Ozark Pipe Line Company appeals from the ruling adverse to it.
Confining our attention now to plaintiff’s appeal, it may be said the correctness of the trial court’s ruling depends on whether a corporation, whose charter was forfeited in 1932 because of its failure to file its annual report and pay its annual fees for the year 1931, may in 1939, by virtue of Laws 1935, ch. 123, now appearing as G. S. 1935, 17-239 to 17-246, inclusive, by filing the required certificate and paying the requisite taxes, dues, fees and penalties, be reinstated so that its rights and liabilities shall be as though its articles of incorporation had at all times remained in full force and effect. Plaintiff contends that it may, and that the trial court erred in holding otherwise. The appellees contend that the above act is not available to the appellant in that at the time the act became effective the appellant corporation was legally and completely dead and without any right to restoration; that the above act is prospective in operation, not retrospective, and that plaintiff is not within its terms, and that in any event plaintiff cannot be reinstated under it because its charter was forfeited not only for failure to pay fees, but for failure to file annual reports, and under the terms of the act reinstatement can only be had where the articles of incorporation became inoperative for nonpayment of taxes, dues or fees, or other causes not pertinent here, and that by its terms the act shall not be construed as permitting reinstatement of a corporation ousted for reasons other than those specified; in other words, that where a corporation is ousted for failure to file annual reports, it may not be reinstated.
Before discussing the particular act and its effect, it may be observed that plaintiff was a domestic corporation for profit and under statutes then in force and now appearing in the General'Statutes of 1935, it was required on or before March 31 of a particular year to make its annual report to the secretary of state showing its condition of business on the preceding December 31 in such form as might be prescribed by the secretary of state, and containing information as set forth in the statute, and at the time of filing its annual report to pay annual fees as set forth by the statute, the amount in any particular case being determined from the information disclosed by the annual report (G. S. 1935,17-701). If any corporation required to file the report and pay the fees prescribed by the above act failed or neglected to do so, as required, it was subject to penalty under G. S. 1935, 17-705, although the penalties might be remitted under G. S. 1935, 17-707. No action under these two sections seems to have been taken. Under G. S. 1935, 17-706, provision was made for actions by the attorney general to collect annual fees. ■ This section further provides that — ■
“The failure of any domestic corporation to file the annual statement and to pay the annual fee herein provided for within ninety days of the time for filing and paying the same shall, in addition to other penalties, work the forfeiture of the' charter of such corporation organized under the laws of this state and the charter board may at any time thereafter declare the charter of such corporation forfeited,” etc.
Although the certificate of the secretary of state attached to the motions to dismiss states the charter had been forfeited in accordance with R. S. 17-701, it is evident the forfeiture was had under R. S. 17-706 (same as G. S. 1935, 17-706), for failure to comply with R. S. 17-701 (same as G. S. 1935, 17-701, above referred to), otherwise there was no forfeiture.
Because of its relation to the statutes relied upon by plaintiff as conferring its right to reinstatement, we notice that in 1931 the legislature enacted Laws 1931, ch. 139. The title of that act required “certain corporations” to file annual reports and to pay filing fees, without further specification as to what those certain corporations were. Section 1 of the act limited the operation of that section to domestic and foreign corporations “not organized and operated for pecuniary profit.” Section é stated “That if any corporation fails or refuses to file the annual report and pay the filing fee as herein provided,” etc., it could upon compliance with certain requirements be reinstated. This act subsequently appeared as R. S. 1933 Supp. 17-701a, 17-701b, 17-701c and 17-710. The Metropolitan Building Company was a domestic corporation organized for profit, defaulted in the payment of its fees for 1932 and 1933 and its charter was forfeited December 31, 1933. The attorney-general brought a suit to wind up its affairs. The company then commenced an original action in mandamus to compel the state charter board to reinstate its charter, which that board defended on the ground there was no statutory authority for it so to do. Without going into any details, this court held that the 1931 act applied only to corporations not prganized for profit, and that the company was not entitled to the relief sought (Metropolitan Bldg. Co. v. Ryan, 141 Kan. 521, 41 P. 2d 1002). That decision was rendered on March 9, 1935. Although the opinion does not so state, the record shows the forfeiture was not only for failure to pay fees but also for failure to file annual reports. At the time the above action was brought, during its pendency and when the decision was rendered, the legislature was in session, and passed three certain acts. By chapter 126, approved February 11, 1935, it legalized the charters of corporations whose charters had been reinstated by the state charter board without authority of law, and by chapter 125, approved March 13,1935, it repealed R. S. 1933 Supp. 17-701a, heretofore mentioned. By chapter 123, approved March 2, 1935, it enacted the particular provisions under which the plaintiff contends it was reinstated and restored to all of its corporate rights.
Included in appellee’s counter abstract is a copy of a memorandum filed by the trial court at the time it ruled on the motions to dismiss. That court was of opinion the statutes under which the plaintiff sought reinstatement were prospective in operation and applied only to corporations whose charters were forfeited after the passage of the act, and appellees so contend here.
The act in question is entitled as one relating to corporations, providing for the renewal, extension and restoration of articles of incorporation, and repealing certain existing laws. It contains ten sections, but we are presently concerned only with the first section. If it precludes reinstatement of the present plaintiff as a corporation, the trial court’s ruling was correct; if it does not and plaintiff could avail itself of the act, then consequences provided in later portions of the act would follow. Section 1 reads as follows:
“Any domestic corporation, (a) whose articles provide for a limited duration of its existence, may at any time, before or after the expiration of such limited duration, or (b) whose articles of incorporation have become inoperative by law for nonpayment of taxes, dues or fees, or (c) whose corporate existence has expired by reason of failure to renew the articles of incorporation, or (d) whose articles of incorporation have been renewed, but, through failure to comply strictly with the provisions of law, the -validity of whose renewal has been brought into question, may at any time procure an extension, restoration, renewal or revival of its corporate existence, together with all the rights, franchises, privileges and immunities and subject to all of its duties, debts and liabilities which have been secured or imposed by its articles of incorporation, by filing with the secretary of state a certificate of its last acting president and secretary or treasurer, or other officers to be elected as hereinafter provided, duly signed and sworn or affirmed to by such officers: Provided, however, That this act shall not be ’ construed as permitting the reinstatement of the charter of any corporation ousted for reasons other than are specified above,” etc. (G. S. 1935, 17-239.)
It is to be observed that the statute makes four classifications of condition of corporations which may be reinstated, and that insofar as verb forms are concerned, in (b) “articles . . . have become inoperative”; in (c) “corporate existence has expired”; and in (d) “articles of incorporation have been renewed,” is the language used. The use of the present perfect tense indicated the legislature had in mind a condition existing at the time of the passage of the act and not one that might arise in the future.
Appellee directs our attention to the rule with respect to retrospective operation of a statute set out in Douglas County v. Woodward, 73 Kan. 238, 84 Pac. 1028, syl. If 1, that—
“Generally, a statute will be construed as applying to conditions that may arise in the future. An act will not be given a retrospective operation unless the intention of the legislature that it shall so operate is unequivocally expressed.” (Syl. If 1.)
The question of retrospective operation of statutes was treated at some length in International Mortgage Co. v. Henry, 139 Kan. 154, 30 P. 2d 311, where the Woodward case, supra, other of our decisions and authorities generally were reviewed, and what was said there need not be repeated. In that case we were dealing with a statute which it was contended had the effect of placing a statutory or double liability on stockholders of a corporation when there was no such provision at the time they became stockholders. There vested rights were involved and the question was whether the new legislation attempted to create a new and additional burden in respect to a past transaction. It was there held:
“As a general rule of statutory construction an act will not be given retrospective force and effect unless the intention of the legislature that it shall so operate is unequivocally expressed, and the presumption is against retroactive intention unless it is clearly expressed.” (Syl. If 2.)
In the above case the effect of curative legislation was not involved and was not considered. The question of the nature and effect of curative legislation has been treated in many authorities and decisions.
In 16 C. J. S., p. 875 (Constitutional Law, §.422), it is said:
“In general, where there is no constitutional prohibition, a legislature may, by retrospective statute, cure mere irregularities in prior proceedings which do not extend to matters of jurisdiction; and-ordinarily it may ratify and validate any past act which it could originally have authorized, provided it still has the power to authorize it and its authorization does not impair vested rights. Common expressions of the rule are to the effect that the legislature may validate retrospectively any proceeding which it might have authorized in advance, or may cure by subsequent statute what it might have dispensed with altogether. So, statutes curing defects in acts done, or authorizing or confirming the exercise of powers, are valid where the legislature originally had authority to confer the powers or authorize the acts.”
In .11 Am. Jur., pp. .1208, 1209 (Constitutional Law, § 379), is the following: ,
“A curative statute is necessarily retrospective in character and may be enacted to cure or validate errors or irregularities in legal or administrative proceedings, except such as are jurisdictional or affect substantive rights, and also to cure or to give effect to contracts between parties which might otherwise be invalid for failure to comply with technical legal requirements. . . . Although a retrospective statute, affecting and changing vested rights, is very generally considered in this country as founded on unconstitutional principles and consequently inoperative and void, this doctrine does not apply to remedial statutes which may be of a retrospective nature, provided they do not impair contracts or disturb absolute vested rights and only go to confirm rights already existing, and in furtherance of the remedy, by curing defects, add to the means of enforcing existing obligations.”
And see, also, 12 Am. Jur., p. 76 (Constitutional Law, § 436).
In Mason v. Spencer, County Clerk, 35 Kan. 512, 11 Pac. 402, this court held:
“Where an irregularity rendering an act of a city or subordinate agency illegal or void is simply a failure to comply with some provision of the statutes, the compliance with which the legislature might in advance have dispensed with, the legislature can, by a general curative statute subsequently passed, dispense with such compliance and thereby render the act of the city or subordinate agency legal and valid.” (Syl. H 2.)
And that principle has been followed in later decisions. (See Mason v. Kansas City, 103 Kan. 275, 277, 173 Pac. 535; Pollock v. Kansas City, 87 Kan. 205, 123 Pac. 985, and Getty v. City of Syracuse, 129 Kan. 106, 281 Pac. 883, and cases cited.)
Corporations are the creatures of the legislature, which had the power to require annual reports and annual fees, and either to increase or decrease the requirements. If it saw fit to permit reinstatement of corporations whose charters had lapsed, it had power to do so, at least so long as vested rights of third persons were not affected. Even though it be said the act now under discussion was retrospective in operation, we think that from its terms it clearly' appears it was intended to affect corporations whose status was fixed at the time the act was passed, as well as those thereafter having that status; that it clearly appears to have been curative legislation, and that the passage of the act was a lawful exercise of the legislative power.
The trial court also sustained the appellee’s contention that because the charter of the plaintiff corporation had been forfeited not only for failurei to pay fees, but also for failure to file its annual report, there could be no reinstatement under the statute; that the statute, under clause (6), refers to corporations “whose articles of incorporation have become inoperative by law for nonpayment of taxes, dues or fees,” while the proviso is, the act “shall hot be construed as permitting the reinstatement of the charter of any corporation ousted for reasons other than are specified above.” The two clauses may be said to be somewhat ambiguous when taken together. It is possible to read them and to conclude that although the charter may have been forfeited for nonpayment of fees, if there was another and concurrent reason not mentioned in the act, then under the proviso there could be no reinstatement. And it is also possible to read the act and conclude that any corporation whose charter was forfeited for such nonpayment of fees, might have reinstatement if that ground existed although the forfeiture may also have been based on other concurrent grounds not mentioned, provided that if the corporation’s charter had ■ not been forfeited on at least one ground of the four classes mentioned in the act, then there could be no reinstatement.
Reference has heretofore been made to G. S. 1935, 17-701, providing for filing the annual report and paying the annual fee, and to other statutes prescribing consequences following such failure. It would be possible for a corporation to file its annual report and to fail to pay its annual fee, but it could not pay its annual fee until it had filed the report, for the fee is determined upon information disclosed by the report. G. S. 1935, 17-703, provides that “upon the filing of the report and the payment of the fee,” the secretary of state shall issue his certificate of compliance. G. S. 1935, 17-705, provides penalties in case a corporation “required to file the report and pay the fee” shall- fail or neglect to do so within the period prescribed. G. S. 1935, 17-706, provides that “The failure of any domestic corporation to file the annual statement and to pay the annual fee” within ninety days of the time provided, shall, in addition to other penalties, work a forfeiture of its charter. It is to be observed that the legislature used a copulative and not a correlative conjunction. While there may be instances where the word “and” should be read “or,” it is difficult for present purposes to do so. And that the legislature must have been considering that filing of a report was a condition precedent to the payment of fees is evident from Laws 1935, ch. 123, for in addition to other requirements, the corporation seeking to revive its articles of incorporation “shall pay all franchise taxes, dues, fees and penalties thereon due to the state of Kansas . . . which it would by- law have been liable to pay. if its said articles of incorporation had not expired.” (Sec. 5.) Those fees would be determinable from reports which should have been filed annually.
We conclude that under the statutes under consideration a corporation whose articles of incorporation became inoperative for nonpayment of its annual fee, may have restoration, renewal and revival of its corporate existence upon compliance with the statutory requirements, even though its charter had been forfeited not only for .failure to pay its annual fees, but also because it failed to file its annual report.
We have not overlooked the appellant’s contention that the charter having been restored and revived only the state may question its validity, but it is not necessary that we discuss it.
Our conclusion also makes it unnecessary that we discuss the cross-appeal of the Ozark Pipe Line Company, and the question of waiver and estoppel presented in connection with both appeals.
The judgment of the trial court sustaining the motions to dismiss of the defendants Warren, Hopkins and Hale and of the Citizens Gas Company is reversed, and its judgment denying the motion to dismiss of the Ozark Pipe Line Company is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
Appellant has filed a motion for a rehearing in which the original opinion (Titus v. Titus, ante, p. 156, 97 P. 2d 1113) has been challenged on two points.
1. The motion states the appeal was submitted on findings by the trial court “which included a finding that the plaintiff never secured a divorce from Ward B. Titus and he never secured a divorce from her,” and that under settled rules we are bound by such findings.
The finding of the court was: “So far as the record shows, the plaintiff never secured a divorce from Ward B. Titus and he never secured a divorce from her.” (Italics inserted.) Ward B. Titus was married to the plaintiff in 1895. Four or five years later he deserted her, and in 1902, in Oklahoma, he married the defendant. During the intervening years Ward B. Titus may have secured a divorce from the plaintiff. The finding of the court merely stated that “so far as the record shows” he had not secured a decree of divorce. As he may in fact have secured a divorce, there was ample ground for the presumption that his marriage to the defendant was valid.
2. The motion further states:
"... The opinion is entirely void of any discussion of the theory upon which the case was decided by the trial court as shown by his conclusion of law, a part of which is set out in the opinion, and which this court says is its conclusion.”
The conclusion of the trial court, a part of which was quoted in the original opinion, is as follows:
“1. Where a man and woman are married and the woman, after her husband has been absent for a period of time, uses her maiden name and later, assumes the name, represents herself and appears as the wife of a third party and later, on the death of the third party, claims and receives the proceeds of an insurance policy on his life and generally conducts herself as his widow, she is not entitled to the possession of real estate owned by the man to whom she had been previously married, as against a woman who, in good faith, married such man, when such estate was acquired through the joint efforts of such man and woman, who lived together in the state of matrimony for something over thirty-five years and who occupied said real estate as a homestead.”
The opinion states:
“The defendant stands before the court as an innocent party. She married the deceased Titus in good faith, lived with him as his wife for thirty-five years, and through the years helped accumulate the property now claimed by the plaintiff. In equity and good conscience the defendant is entitled to the property. . . .” (p. 158.)
Doubtless t'he import of this language was overlooked. It was intended to be, and we submit is, an expression of approval of the theory upon which the judgment of the trial court was based. It was a short expression of the general principle of equity, expressed by Chief Judge Cardozo in Beatty v. Guggenheim Exploration Co., 225 N. Y. 380, 386, 122 N. E. 378:
“A constructive trust is the formula through which the conscience of equity finds expression. When property has been acquired in such circumstances that the holder of the legal title may not in good conscience retain the beneficial interest, equity converts him into a trustee.” (p. 386.)
The same principle was expressed by Dean Roscoe Pound in “The Progress of the Law, Equity,” 33 Harv. Law Rev. 420, as follows:
“. . . As the chancellor acted in personam, one of the most effective remedial expedients at his command was to treat a defendant as if he were a trustee and put pressure upon his person to compel him to act accordingly. Thus constructive trust could be used in a variety of situations, sometimes to provide a remedy better suited to the circumstances of the particular case, where the suit was founded on another theory, as in cases of reformation, of specific performance, of fraudulent conveyance, and of what the civilian would call exclusion of unworthy heirs, and sometimes to develop a new field of equitable interposition, as in what we have come to think the typical case of constructive trust, namely, specific restitution of a received benefit in order to prevent unjust enrichment.” (p. 421.)
The position of the appellant may be stated: (a) If the presumption arises that the second marriage was valid, then the defendant inherited the property from her deceased husband, and appellant had no right or claim. As we found ample ground under the facts found to support the presumption of the validity of the second marriage, it was unnecessary to discuss at length the equitable theory upon which the trial judge proceeded. (6) But if it be conceded that the naked legal title descended to appellant it would not avail her. “In equity and good conscience” she was not entitled to the property. Equity would consider her as trustee, and compel her to act accordingly. On no possible theory was the appellant entitled to recover.
As the contentions raised were considered in the original opinion, a rehearing is unnecessary.
Thiele, J., not participating. | [
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The opinion of the court was delivered by
Hoch, J.:
Plaintiffs prevailed in separate actions for damages for sale of diseased hogs, and defendant appeals. The appellant contends that the buyers had knowledge of the condition of the hogs equal to that of the seller, that there was no implied warranty by the seller and that the judgment was not within the issue presented by the pleadings. The two actions have been consolidated, since the same questions are presented in both actions. The appellees will be referred to as the buyers and the appellant as the seller.
The trial court made findings of fact on July 15, 1939, one finding being later modified on July 20, 1939. No motion for a new trial was made until after judgment was rendered on October 3, 1939. The findings of fact had become final and will, accordingly, be used in our statement of the facts.
The buyers were reared on farms in Edwards county, Kansas, and had the usual experience and knowledge of farmers concerning hogs. The seller was not only reared on a farm, but was an experienced dealer in hogs, having engaged in the business of buying, selling and feeding hogs for fifteen years. He had sufficient experience with hog cholera that he trusted to his own knowledge, in purchasing hogs, as to whether or not they were infected with cholera.
In November, 1938, the seller bought hogs in Arkansas and brought them to his farm in Edwards county, a distance of about five hundred and fifty miles. He started home at noon and arrived there about daylight the next morning. The hogs were unloaded in a barn and were fed, but some of them refused to eat. These were “gaunt, piled up, weaved when they walked, and some of them were coughing.” The buyers came to the place about eight o’clock in the morning and along with the seller and another person went to the barn and looked at the hogs. The buyers “noticed that some of the hogs were not eating, that they were gaunt, piled up, when they walked they weaved, and appeared to be weak-in the hind quarters and were coughing.” They mentioned these things to the seller and "stated that the hogs did not look right and that there was something wrong with them.” The seller then stated that their condition was due to the long ride and the exposure to the weather and that “the hogs were all right because he had to have a bill of health on them before he could bring them into the state.” He also stated that the coughing was due to the fact that he had fed them dry feed. The fact was, however, that the seller did not have a bill of health. The buyers each bought a number of the hogs and took them home. The next morning one of the buyers found one of his hogs dead and a couple of days later the other buyer found some of his hogs dead. A veterinarian was called, made an examination, and said that the hogs had what was commonly called shipping fever. Upon his advice the hogs were vaccinated, but continued to die. Another veterinarian was called and diagnosed the sickness as cholera. A state veterinarian was called and, after inspection and post-mortem examination, diagnosed the cause of death as cholera. The court found that “the hogs died as a result of cholera.” About noon after the morning when the hogs had been bought, the seller went to the home of one of the buyers, stated that he wanted to sell the rest of his hogs in order to go and get another load and for that reason would make a good price on them. ' The sale was made. The seller did not go after any more hogs. Later reference will be made to finding No. 11, which is principally in issue here.
On October 3 the court entered judgment against the defendant in both cases — in favor of one plaintiff for $208, and of the other for $438. The amounts of the judgments are not attacked.
We come to the contentions of the appellant.
Before answer the defendant filed a motion for the purpose of showing that the petitions attempted to plead different causes of action — one based on express warranty, one on fraud and one on implied warranty — and asked that the plaintiffs be required to separately state and number such causes of action. Defendant also filed a motion to make definite and certain, and to require plaintiffs to state “what facts he claims defendant had notice of, or what facts he claims the defendant knew of which were sufficient to put him on inquiry as. to whether said hogs were infected with cholera” and also to strike from the petition the following allegations:
“ ‘Said defendant stated and represented to plaintiff that he had a certificate of health for said hogs from the state of Missouri and state of Arkansas; and said defendant further stated to plaintiff that said hogs were in a healthy condition’ for the reason that all of said averments are incompetent and immaterial.”
Upon the hearing of these motions, counsel for plaintiffs announced that they were proceeding:
“Upon the theory the defendant sold the hogs to plaintiff at a time when the hogs were infected with cholera, and that at such time the defendant had knowledge of such infected condition or had knowledge of facts and circumstances sufficient to put him upon inquiry and had he pursued such inquiry be would have learned of such infected condition.”
Whereupon the court announced that the petitions would be so construed, and that the allegations which the defendant had asked to be stricken “would be allowed to stand as bearing upon the question of notice.”
The action of the court upon the motions must be considered in connection with the court’s finding No. 11, which reads as follows:
“The defendant did not learn of any cholera in Arkansas at the time he purchased the hogs, but at the time the defendant sold the hogs he had notice of facts and circumstances sufficient to put a prudent person, and particularly the defendant, upon inquiry concerning the condition of the hogs. The facts and circumstances referred to was the condition of the hogs at that time. A reasonable inquiry at the time would have disclosed that the hogs were infected with cholera. The false statement of the defendant that he had a bill of health on the hogs made to the plaintiff at the time he purchased the hogs misled the plaintiff into believing that the hogs were all right at the time he purchased them.”
The appellant says that the issue was narrowed, by plaintiffs’ election, to one of implied warranty; that they could therefore recover under no other theory; that the findings of fact do not establish any breach of implied warranty, since the only facts and circumstance found which put anyone upon inquiry was the condition of the hogs at the time the sale was made and that this condition was equally known to both seller and buyers. Particular objection is made to the statement in the court’s finding No. 11, that “The false statement of the defendant that he had a bill of health on the hogs made to the plaintiff at the time he purchased the hogs misled the plaintiffs into believing that the hogs were all right at the time they purchased them.” The argument is that this statement introduces an element of fraud, contrary to the limitation of issues theretofore made, and that the false statement of the defendant that he had a bill of health on the hogs had nothing to do with the observable condition of the hogs.
The construction urged by appellant puts a too narrow and technical interpretation upon the court’s findings as to the false statement of the defendant that he had a bill of health on the hogs. It is true, as argued by appellant, that the false statement might have been made the basis for an action in fraud, but it also has a very real and practical relation to the necessity of inquiry occasioned by the condition of the hogs. We have here a seller and buyer of unequal knowledge concerning hogs. The seller was a dealer of many years’ experience in buying and selling while the buyers had only the ordinary knowledge common to farmers generally. The seller felt that he had such knowledge of cholera that he did not hesitate to trust to his own judgment concerning it when buying hogs. The court so found, and the finding is supported by the evidence. Both seller and buyers observed the symptoms of the hogs. Assuming for the moment that both were of equal experience, it might be said that both were put upon the same notice and inquiry. But in this situation certainly the false statement of the defendant modifies the burden of inquiry imposed by the condition of the hogs. In other words, the seller, knowing that he had no such bill of health, would more definitely and certainly be put upon inquiry by the condition of the hogs than would the buyers, who thought that he had such bill of health. And this would be all the more true by virtue of the difference in experience between seller and buyers.
The findings of fact cannot here be questioned. They support the judgment. We find no prejudicial error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages alleged to have been sustained when plaintiff was struck by a switch engine operated by defendant. At the close of the evidence of plaintiff the defendant demurred to it. This demurrer was overruled. At the close of the evidence of defendant and after the court had instructed the jury the plaintiff dismissed the action. The defendant appeals from the order of the trial court overruling its demurrer to the evidence of the plaintiff.
After describing the corporate nature of the defendant the petition alleged that the tracks of defendant ran from east to west across the main business street of Newton, near the intersection of Fourth and Main streets, and that the crossing was composed of a series of ten tracks. A map of the intersection showing these tracks was attached to the petition and was introduced in evidence. The petition then alleged that the defendant had established a bell and signal-light system operated by defendant for the purpose of warning and controlling traffic at the crossing and that this system was in operation at the- time in question. The petition then alleged that on October 15, 1937, at 5:45 p. m., plaintiff approached this crossing, walking on the sidewalk from the south, on the west side of Main street; that there was no signal ringing or signal light; that as plaintiff approached the watchman's tower, which is about five feet west of the west sidewalk, the defendant started its bell ringing and displayed its signal lights; that plaintiff stopped on the sidewalk while a train pulled westward across the intersection, either on the north track or on the cross-over track from the north to the second track from the north; that as the.last car of the train pulled westward the defendant negligently caused the bell to stop ringing and the signal light to be discontinued. The petition then alleged that plaintiff, relying on the signal of safety and the invitation to cross the intersection, that is, the act of the defendant in causing the signal light to stop burning, proceeded north on the sidewalk across the tracks. The petition further alleged that the defendant negligently operated the signal system, and a switch engine backed into plaintiff and injured him while he was about one-half or two-thirds of the way across the intersection. The petition alleged that the negligence of the defendant was as follows:
“1. In causing said signal bell to stop ringing and said signal light to stop burning while the said train, aforesaid, was on said intersection and when said switch engine was entering upon and crossing said intersection.
“2. By causing said switch engine to enter upon and cross said intersection at a high and unreasonable rate of speed such as to endanger the life and limb of pedestrians traveling thereupon and particularly this plaintiff.
“3. By entering upon said intersection with said switch engine without a signal so to do.
“4. By operating said switch engine without a light or signal at the rear or tender thereof.
“5. By operating said engine on said crossing and intersection without any member of its designated crew riding on the rear of said engine across said intersection, the same being, as this plaintiff verily believes, a violation of the safety rule's of said defendant for said crossing and intersection, which said fact is particularly within the knowledge of said defendant.
“6. By failing to maintain a proper lookout from said switch engine for pedestrians on said intersection or crossing.”
The petition then alleged that the defendant knew, or should have known, that this plaintiff was on the crossing and in a position of peril, but defendant did not do anything to avoid hitting plaintiff. The plaintiff then set out the injuries he had sustained.
Judgment was asked in the amount of $50,000.
For its answer, defendant pleaded first a general denial. The answer then stated that if the plaintiff suffered any injuries at the place and time in question when he was struck by an engine any injuries he sustained were not the result of any negligence on the part of the defendant, and the negligence on the part of plaintiff was the proximate cause of the injury. The answer then alleged that the plaintiff, having crossed over seven of the tracks, knew that the danger was to be apprehended and failed to exercise reasonable care for his own safety in proceeding on across the tracks; that the plaintiff, being in a place of safety between the seventh and eighth tracks, over which he knew trains were expected to pass frequently, proceeded on to the eighth track without looking to observe whether any train or engine was then occupying the intersection or in such close proximity that it would be dangerous to attempt to cross the track. The answer further alleged that plaintiff negligently and carelessly moved from a position of safety directly into the path of an engine which had already crossed the paved portion of the street and was in close proximity to the sidewalk where plaintiff was, without looking. That he attempted to proceed across a railroad track after warnings had been given by means of horns, bells, lights or switchman signal that trains were approaching and that it would be thereafter dangerous to cross these tracks without looking.
The reply was a general denial. The ground of defendant’s demurrer was that plaintiff’s evidence failed to prove a cause of action in favor of the plaintiff and against the defendant.
After the order overruling the demurrer the defendant proceeded to introduce its evidence. At the close of the defendant’s evidence the defendant asked for a peremptory instruction directing the jury to render a verdict in its favor. This motion was overruled. The trial court then proceeded to instruct the jury.- The trial court then advised counsel for plaintiff to proceed with their arguments to the jury. The counsel for plaintiff announced thereupon, however, that they dismissed the cause without prejudice. It was thereupon dismissed.
The defendant appeals from the order overruling the demurrer to the evidence and from all other rulings and orders of the trial court adverse to the defendant made in the trial of the case prior to the dismissal without prejudice.
The only argument made in this court is that the trial court erred in overruling the demurrer to the evidence of plaintiff.
This will necessitate a careful examination of the evidence offered. We shall consider this with the aid of a plat of the intersection which was introduced in evidence by defendant, but the accuracy of which is not disputed. This plat is attached to this opinion.
Plaintiff testified that on the day in question he left home about .the evening; as he walked up towards town the street lights were lighted; that he was on the west side of Main street and it was dark when he reached the crossing; that on the first track there was a string of boxcars about flush with the sidewalk; he crossed past them after looking to the east and west and then he crossed another track or two; that the traffic signals, that is, the bells and lights and wigwag signal, operated by the man in the signal tower, were not on. He testified further that after he passed the first string of boxcars he crossed another track or two, where there was another string of boxcars almost flush with the sidewalk extending west; he looked to the east as he crossed in front of them and noticed an engine standing on the track ahead of him, just a short distance west of Main street. He testified it was standing still and there was no bell ringing; that there was a passenger train headed west standing on the first track in front of the station; that the traffic signals were not on, so he walked on across in front of the engine, about which he had just testified, and just as he stepped beyond that there was another engine pushing a car toward the sidewalk on two or three tracks ahead of him. He testified this engine was coming from the west towards the crossing on a track near the signal tower; that he did not want to be caught out there on the crossing, so he turned and started to go back; that just as he did this the engine west of him came toward the sidewalk, so he stepped off to the north of it and stopped; that the engine pulled up to the crossing and stopped; that about this time the traffic bell started ringing and the signals came on; that the engine was the one in front of which he had just crossed and he turned to face that locomotive from the north side of it. He testified that when he turned to go back off the crossing this locomotive was headed east and the tender was directly over the sidewalk; that he stood there while that engine was stopped. He testified the other engine pushing the car which was on the track north of him continued on across Main street to the east; that the engine south of him backed up to the west and stopped west of the crossing, while the engine in front of him continued on to the west; that about that time the passenger train started to move to the west; that some one carrying a lantern near this engine, which was then west of the crossing, said: “Look out there, I will be coming back.” He testified also that this was the locomotive that had retired to the west on the third track, so he determined to place a sufficient distance between himself and that engine.
He testified that he stepped on to the north and after glancing to the east saw an engine on the east side of Main street; that it was standing there just a short distance east of the crossing; that there was no light on it and the bell was not ringing; and it was standing still; that this engine was on the first track south of the tower on the west side of Main street; that it was only a short distance from the intersection; that he continued walking until he reached that track; he stopped just south of the third track from the north. The train, about which he had testified, had continued to cross the street and when he stopped and looked at the end of the passenger train he glanced over and noticed that this locomotive was standing there without any lights, without indication whatever it was going to move, and about that moment the train whistled to the west, so he quit looking to the east and looked to the west. He did not see any headlight coming from the west and decided that it was the train going out that was whistling for First street and turned his attention again to the end of the train, which was then past the middle of Main street. About that moment the traffic signals were turned off, the bells stopped ringing and he let his eyes follow the end of the train until it had crossed the sidewalk far enough that he could see that the red lights and the wig-wag signals were off and automobiles were moving from the north onto the crossing. After he saw that the red signals were off he took one or two steps with the intention of getting off the crossing and as his eyes swung on around from the automobiles he saw a black bulk right on him. He could not get out of its way. It was too close and there was no light on it and the next thing he was hit and he was down and something seemed to grab him. There was no switchman on the southwest footboard of the tender of that locomotive. There was no lantern there. The traffic signals were not on when he crossed in front of the first locomotive. Tha,t locomotive was not in motion at the time he passed it. It was on the fifth track from the south. He was on the north of it. He was about halfway between these two tracks when the signal lights came on for the first time. He was just south of that track on the concrete while No. 23 was pulling west. Before he moved from that position the passenger train ahead of him was nearing the crossing from the east. He could see the wig-wag signal before he moved to that position. After that he took two or three steps forward. The rear coach of No. 23 was about in the center of the street when he first noticed that the signal bells had stopped ringing. Before he took a step he saw the traffic start to move and the lights were off. He had used that crossing for ten years. He had depended on the Warning signals, and depended on them on this particular evening. It was not less than two minutes nor more than three minutes from the time he first went upon the intersection until the engine hit him. On cross-examination plaintiff testified about as above with the addition that he testified that there were floodlights at this intersection and they lighted up the intersection so that it was fully illuminated and that he could see clearly both ways. He also testified on cross-examination that he looked at the lights first to see that they were on, but they were off, and then took two or three steps ahead onto the tracks; that if he had stayed in the position in which he then was he would not have been struck; that he moved two steps from the safe position and was struck. From the last time that he saw the switch engine cross the street to the east it was clearly visible and standing still. From the time when he first looked at the northeast toward the intersection and saw the switch engine standing there until the time he took two steps across the track and was struck he did not look to the northeast toward the switch engine. He also testified as follows:
“Q. As a matter of fact, you didn’t see the switch engine and didn’t look for the switch engine or in that direction from the time you saw it standing still until the instant before you were struck just as you had moved on to the track; isn’t that correct? A. I hadn’t seen it moving until it was right on me.
“Q. You didn’t look, did you, until you moved forward? A. I was looking just at that moment, and the lights were turned off.
“Q. And you started across that track? A. Depending on the signals.
“Q. You started across that track and didn’t look from the time you saw the engine standing still on the other side? A. Well, it had been only a moment before.
“Q. Is there any reason why you couldn’t have seen the switch engine three-fourths of the way across that intersection if you had looked? A. Before I had time to look—
“Q. I am asking you if there was anything that would have prevented you from seeing the switch engine under those floodlights three-fourths of. the way across the intersection if you had looked? A. I was looking at the train, very likely.
“Q. In other words, you were looking at No. 23 pulling out, were you not? A. And waiting to get a chance to look at those signals.
“Q. Do you know of anything that you can tell this jury that would have prevented you from seeing that switch engine' half way across that intersection coming towards you on that track in front of you, if you had looked at that time? (Question repeated by the court reporter.) A. Nothing to prevent me from seeing it; no, sir. I depended upon the signal that told me that it wasn’t coming.”
He also testified :
“The whole crossing was illuminated by these floodlights. If the rear switch lights on the switch engine' was burning it would have attracted my attention. It wasn’t burning when it hit me. I know that because I saw the engine just before it hit me when it was right on me. When I stepped onto that track that was the first time I saw it.”
Another witness testified that he was nineteen years old; that as he approached the intersection on the night in question the train was pulling out and the signal lights were working; he waited until the traffic lights stopped and went on south; saw the end of the tender on the switch engine; when it was about ten feet from the sidewalk it did not have a light burning on its advancing end. The switch engine came to a stop with the tender end about three or four feet past the west sidewalk. Another young man corroborated this story.
Another witness testified that he was working in the switchman’s tower; the bells and lights are operated by one switch and this switch turns them off and on and the horns are separate from the rest of them; these switches are controlled by hand; he started the bells and lights ringing by kicking the switch and the lights would remain on or off until he either pushed or pulled the button.
The general yardmaster for defendant testified that a rule of the defendant provided in substance that in any yard movement a switchman has to be on the forward end of the moving locomotive whether it is backing up or going ahead; the switchman is supposed to be on the engineer’s side.
The foregoing is a summary of the evidence of the plaintiff to which the defendant interposed a demurrer. In cases where the sole question being considered is whether a demurrer to the evidence of plaintiff, was correctly overruled, and after it was overruled the defendant put in some evidence, any evidence put in by the defendant which tended to supply any insufficiency in the evidence of plaintiff will be considered by this court on appeal. (See Hayes v. Reid, 145 Kan. 51, 64 P. 2d 19, also City of Garnett v. Dowis, 144 Kan. 484, 61 Pac. 913.) The defendant concedes this to be the rule and although the appeal is from the order overruling the demurrer, has furnished us with an abstract of the defendant’s evidence in order to show that this evidence did not supply any elements of proof necessary to support plaintiff’s case.
M. C. Snap testified that he was a civil engineer for defendant; he identified a plat of the intersection; the distance across the tracks here is 120 feet. This testimony is included here because the plat about which he testified has been made a part of this opinion.
The switchman for the defendant testified, in describing the collision, as follows:
“The rear light on the locomotive was burning. It is a big headlight in the center of the tank. I know it was burning because I saw it burning. It threw a beam ahead. The bell was ringing at the time. . . . From the time we started across Main street proceeding'westward up until the time of the accident the headlight was burning and the bell was ringing.”
This testimony has been included because it tends to establish a practice of the company to have a light on the advancing end of switch engines.
The operator of the signal tower testified that he had five plates in the tower similar to the plates in a home where lights are turned on or off; that on the night in question all the lights and signals were turned on during the entire movement of No. 23 as well as of the switch engine; that the lights were not turned off until after plaintiff had been taken from the engine; that the bells were in operation and were operating and did not cease at any time prior to the accident.
This testimony is included here because it tends to prove that the practice of the defendant was to operate these signals for the benefit of pedestrians who were in danger on account of the operation of switch engines.
Defendant argues that the railroad track was itself a warning of danger; that plaintiff was in a place of safety when he stood between the tracks and watched the train pull out and that it was negligence for him to leave his place of safety and step onto the track, where he was hit, without first looking in both directions. Numerous cases where this court has held this in effect are cited and relied on by defendant.
Plaintiff concedes that the foregoing is the rule in ordinary railway crossing cases where the plaintiff goes upon the tracks without stopping to look or listen. He points out here, however, that in this case the defendant had provided traffic signals by lights, bells and horns operated by hand by a man in the signal tower who had the whole series of tracks under his observation; that the plaintiff was familiar with these signals, as used at this particular crossing, and relied on them on the night in question; that the bells and lights were not on when plaintiff entered upon the series of tracks, but came on while he was proceeding across, simultaneously with the arrival of train No. 23 at the station and the approach of the different switch engines to the street, and were turned off when the train pulled out. There is no dispute, as the testimony of the witnesses for the defendant bears out, but that it was the practice of the operator of the signals in the tower to keep the movement of switch engines or trains on all the tracks under observation at all times and to turn on all the traffic lights and bells when a switch engine or train approached the street.
In McClain v. Railway Co., 89 Kan. 24, 130 Pac. 646, the deceased had arrived at a place where two railway tracks crossed a city street. Ordinarily there was a gate which prevented people from going upon the tracks when a train was approaching. On this occasion this gate was out of repair and on that account deceased went onto the track, and while he was waiting for the passage of a train on the other track stepped too near it and was struck by part of the engine, and killed. The railway company contended that since deceased went upon the track without looking for a train he was guilty of negligence that would bar recovery as a matter of law. This court held that under such circumstances the question of whether the person who went upon the tracks was guilty of contributory negligence was a question of fact for the jury. This court said:
“Ordinarily if a traveler proceeds across a railroad track without taking the precaution to ascertain if there is a train in dangerous proximity he does so at his peril. The application of this rule is modified to some extent by the circumstance that gates have been erected and watchmen employed at crossings. In such case' a traveler is not required to exercise the same vigilance when he approaches a track as he would at crossings not so guarded. The railroad track itself is a warning of danger which a traveler cannot safely ignore, but when it is the custom of a railroad company to provide gates or flagmen and thus give other warnings of danger that a train is about to pass, the absence of such warnings may lead a traveler to believe that he can safely proceed or that there will be time to cross before a train will pass. The fact that gates have been erected and are open when a traveler approaches a crossing will not justify him, of course, in closing his eyes and ears when passing over railroad tracks, but it is a circumstance to be weighed by the jury in determining whether at the time he was using the care' that a reasonable and prudent man would and should exercise.” (p. 30.)
■ In Jacobs v. Railway Co., 97 Kan. 247,154 Pac. 1023, the deceased drove upon a railway crossing where an automatic signal bell was maintained but was not ringing, for some reason, at that time. The jury found that the deceased could have seen the approaching train when he was twenty-five feet from the crossing. The plaintiff contended that the rule in McClain v. Railway Co. was in point, and that deceased was not guilty of contributory negligence. This court held, however, that the fact the bell was not ringing did not excuse deceased from his duty under the circumstances to stop and listen for an approaching train before going on the tracks. This court dis tinguished that case from McClain v. Railway Co. on the ground that the gate in the McClain case was operated by hand, that is, human intelligence guarded the crossing and operated the gate in that case, while in the case the court was considering the signal bells were operated mechanically. In this connection it should be noted that in the instant case the signal lights and bells were operated by hand and by a watchman who had the entire scene under his observation at all times and could observe the movement of all trains and switch engines as they approached the street, and this fact was known to plaintiff and relied on by him.
In Bollinger v. Railway Co., 113 Kan. 124, 213 Pac. 644, a city ordinance required a flagman to be at the intersection of the railway tracks within a city street from 6 o’clock in the morning until 6 o’clock in the evening. After some years the railway company changed the flagman’s hours so that he went on duty at 9 o’clock in the morning and remained on duty until 5 o’clock in the evening. Plaintiff’s 'car collided with a 'train on the tracks of the railway company at about 8:15 in the morning when the flagman was not there. At a point twenty-eight feet from the track she could have seen the on-coming train seventy-three feet away. She had frequently seen the flagman there when there was a train and had passed the crossing at various times in the day when the flagman was not there and there was no train. The railway company contended that the plaintiff was guilty of contributory negligence when she drove upon the tracks without looking. This court held the question was for the jury under all the surrounding facts and circumstances. After a discussion of a number of authorities this court said:
“Taking all the circumstances of the case into consideration, including the fact that plaintiff had some reason to think a train was not coming when she did not see the flagman there, and her duties in relation to the situation, we cannot say as a matter of law that the plaintiff was guilty of contributory negligence which precludes her recovery. . . . (McClain v. Railway Co., 89 Kan. 24, 130 Pac. 646; Williams v. Railroad Co., 89 Kan. 35, 53 Pac. 834; Weston v. Hines, 107 Kan. 625, 193 Pac. 340.)” (p. 128.)
In Polfer v. Chicago, G. W. Rld. Co., 130 Kan. 314, the plaintiff approached the intersection of a number of railway tracks with a city street. There was a flagman stationed at the crossing and as the plaintiff drove past the flag-shanty the flagman motioned for him to go on. He did go on. As he drove onto track 7 his truck was hit by a train. Had the plaintiff at the time he crossed track 5 looked to the right along track 7 there was nothing, except the weather, which was misty, to have prevented him from seeing the on-coming train. The railroad company argued that the plaintiff was guilty of contributory negligence as a matter of law because as he crossed track 5, at-a distance of 81 feet from track 7, he failed to look to the right where he could have seen the train on that track 250 feet from the point of the collision. This court reviewed McClain v. Railway Co., supra, and Bollinger v. Railway Co., supra, and held that the question was one for the jury. The court said:
“There is even more reason in this case than in the McClain case to rely on the human-intelligence element, for a flagman stationed at the crossing should be as alert to do his duty as one who is the operator of a gate.” (p. 320.)
To the same effect is Weston v. Hines, 107 Kan. 625, 193 Pac. 340.
In Whatley v. Chicago G. W. Rld. Co., 123 Kan. 187, 252 Pac. 1096, the plaintiff drove his horse and wagon up to the intersection of five railroad tracks and a city street. There was evidence that as he approached the first track he stopped in obedience to a signal from the flagman; that he waited for about five minutes until an engine and cars, which he had seen, had passed over; that he then received a signal from the flagman to go ahead, and started up in reliance on this signal and was struck by a train on the third track. The defendant contended under these facts the plaintiff was guilty of contributory negligence as a matter of law. This court said:
“While there was much evidence tending to contradict the plaintiff’s story, the jury and trial judge must be regarded as having settled in his favor the disputed questions of fact, and if, as he testified, he undertook to cross in obedience to a signal, he obviously was not as a matter of law guilty of negligence in doing so.” (p. 188.)
The flagman and operator of the gates in all these cases were acting in much the same capacity as the signal man who operated the bells and lights in the signal tower in this case, with the distinction that the signal man in this case had the whole scene under his observation, and by looking could tell whether there was a train or engine in the intersection and about to cross the street. In all the cases the plaintiff relied on the signal, or the absence of a signal, before going ahead and in all of them this court held that under all the circumstances of each case the fact that the signal was given or relied on made the question of contributory negligence one to be submitted to the jury.
Most of the cases which have been discussed here involve ve hicular traffic. However, the case of McClain v. Railway Co., supra, involved a pedestrian. This case has often been cited and approved by this court. We see no difference in principle between the case of a pedestrian and the driver of a vehicle. The question is whether the plaintiff used the care that an ordinarily prudent man would use under the circumstances. We hold that it is a question of fact that should have been submitted to the jury.
The authorities cited and relied on by the defendant have been examined, and it appears that they do not deal with cases where the injured party relied on signals given by the railway company.
Before concluding, we should add that the matters presented herein were clearly appealable. (Kotwitz v. Gridley Motor Co., 148 Kan. 676, 84 P. 2d 903, and citations.)
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|
The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for personal injuries sustained in an automobile casualty alleged to have resulted from the negligence of defendant. The jury answered special questions, and returned a general verdict for plaintiff for $5,922.35, on which judgment was rendered. Defendant has appealed.
The pertinent facts disclosed by the evidence, which tend to support the findings and judgment of the jury and trial court — although some of them were sharply contested' — -may be summarized briefly as follows: Plaintiff is the wife of Dwight Nelson, who operates a transfer and storage business, having a designated place of business in Salina. For four years prior to June, 1937, he owned a 1930 Chevrolet automobile, which was used by him and his wife for pleasure driving. His wife did more of the driving than he did and she was a good, experienced driver. The defendant, Burke Healey, was engaged in the automobile business in Salina. He was the dealer for the Ford, Zephyr and Lincoln automobiles. He also sold used cars which he acquired in the course of his business. He maintained two separate places of business in Salina, at one of which he handled new cars and at the other he handled used cars. He also had a place of business at Lindsborg. To further the success of his business, and particularly the sale of used cars, he adopted the slogan that the cars were “Healeyized,” and represented that they had been “reconditioned and guaranteed,” and he used a circular design with the large letters “R & G,” meaning reconditioned and guaranteed, and sometimes in connection with such phrases as “Best in the World,” “Bargain R & G Cars.” Large signs or placards carrying these representations, or some portion or combination of them, were put up in front of each of his places of business in Salina. Smaller road signs were put up along the main highways. Advertisements were run in the daily papers which stressed the representation that the “Healeyized,” “Best in the World,” “Reconditioned and Guaranteed Bargin Cars,” were safe and dependable. Plaintiff and her husband had read many of these signs and advertisements, were familiar with defendant’s representations with respect to the superiority and dependability of used cars sold by him, and came to rely upon them and to believe that if they bought a used car from defendant it would be one that had been reconditioned and made safe and dependable. John Vlader, an employee of defendant as a salesman of both new and used automobiles for more than a year prior to June, 1937, and who was familiar with the signs, placards and advertisements and representations made by defendant respecting used cars which he sold, or offered for sale, on a number of occasions talked with Dwight Nelson in an effort to sell him a better used automobile, taking his old Chevrolet as part payment. He had contacted Mr. Nelson as many as eight times. Mr. Nelson told Vlader that his wife did most of the driving; that he wanted an automobile that was in good condition and safe for her to drive. On Saturday afternoon, June 19, 1937, Vlader went to Nelson’s place of business with a 1933 Pontiac automobile, which he told Nelson he was sure would meet his requirements, and offered to sell it to him for $280 and take his older Chevrolét at $100. He represented to Nelson that the car had been reconditioned, that it was in good condition, and particularly talked about the tires, and represented that they were good and safe. He proposed that Nelson take it and try it over the week end and let his wife drive it and see how she liked it. Nelson consented to do this. He drove the car from his place of business out to his residence; his wife drove it, taking him back to his place of business. That evening they drove about the city on the pavements a total distance of perhaps six miles. On Sunday afternoon, about five o’clock, the plaintiff, with her father and mother and her three children, the oldest eight years of age, one about two, and the other a babe, started to take a ride about town, the plaintiff driving. They took a drive out near the edge of the city and were returning at a speed of 30 to 35 miles per hour on a level stretch of highway which had been newly sanded and graded, leaving a light layer of sand on the surface, when the left front tire blew out. The blow-out was on the tread of the tire. The opening made by it was about two inches in diameter. The car swerved and went into a ditch and turned over. Plaintiff was severely injured. We pass the evidence pertaining to the extent of her injuries, for it is not seriously contended that the verdict is excessive if plaintiff is entitled to recover.
Defendant had acquired this Pontiac automobile from Arvid Youngquist of Lindsborg on May 10, 1937, as part payment on another automobile. Youngquist had owned the car six or seven months and in that time had driven it between four and five thousand miles. The tires which were on the car when he got it were the same ones on it when defendant acquired it. Within a day or two after he received the car defendant had one of his employees clean the car up and paint the sidewalls of the tires with a dressing similar to that used in dressing the tops of cars. This was done to improve the appearance of the tires. In thus painting the tires the workman would notice whether there were any serious cuts or bruises on the tires, and if so would report that to the foreman. No such report was made with respect to the tires on this car. The tires were not taken off the wheels and examined on the inside for breaks, cuts, or defects in the casings or tubes. Defendant made no inquiry as to how old the tires were, or how much they had been used. There is no evidence the car had been reconditioned in any way, other than to clean it up and to paint the sidewalls of the tires, to improve its appearance.
The jury was asked and answered special questions as follows:
“1. What caused the left front tire of the automobile driven by plaintiff to blow out? A. Negligence of defendant.
“2. Was the left front tire on the automobile in a dangerous condition at the time the automobile was delivered by the defendant’s agent to the plaintiff’s husband? A. Yes.
“3. If you answer the foregoing question ‘yes,’ then state whether or not defendant or his agent knew said tire was in a dangerous condition at the time such delivery was made. A. Did not know, account of improper inspection. Tires should have been inspected inside as well as outside.
“4. If you answer question No. 3 ‘No,’ then state whether, under the circumstances in evidence in this case, the defendant or his agents and employees in the exercise of ordinary care should have known that the left front tire of the automobile was in a dangerous condition when it was delivered to the plaintiff’s husband? A. Yes; should have known by proper inspection, which should include inspecting all the tires both inside and outside.
“5. Did the defendant make the same inspection of the tires that is customary and ordinarily made by dealers in secondhand automobiles before the automobile was delivered to plaintiff’s husband? A. Yes.
“7. If you answer question No. 5 ‘yes,’ then state whether or not the defendant discovered any facts from which he should have known that the tire on the automobile was dangerous. A. Did not make proper inspection according to their advertising. Tires should have been thoroughly inspected both inside and outside.
“8. If you answer the foregoing question ‘yes,’ then state in detail what the facts were which he discovered. A. Did not discover anything because proper inspection was not made, according to defendant’s advertising. If tires had been inspected, both inside and outside, proper inspection would have resulted.
“9. If your answer to question No. 5 is ‘yes,’ then state:
“(a) When was such inspection made? A. A short time after used car was •delivered to them for resale.
“(b) Did the defendant or any employee or agent of the defendant make any examination of the inside of the tire. A. No.
“(c) At the time the automobile was delivered to the plaintiff’s husband, did the defendant’s agent and employee, John Vladar, state to the plaintiff’s husband, in substance, that the tires on the automobile were in good condition? A. Yes.
“10. At the time the automobile was delivered by the defendant or his agents to the plaintiff’s husband, did the defendant or his agent know that the automobile was to be tried out and used by the plaintiff? A. Yes.
“11. If you answer the preceding question ‘yes,’ then state:
“(a) Did the plaintiff at that time have knowledge that the defendant advertised to the public by means of signs on his places of business, newspaper advertising, and signs on highways, that the used cars offered for sale by defendant were renewed and guaranteed cars? A. Yes.
“(b) Did plaintiff at that time have knowledge that the defendant advertised to the public that the used cars offered for sale by him were safe and •dependable? A. Yes.
“(c) If your answer to the preceding questions (a) and (b), or either of them is ‘yes,’ then did the plaintiff believe when she tried out and used the automobile that it was an automobile which the defendant had advertised as being renewed and guaranteed and that it was safe and dependable? A. Yes.
“(d) If your answers to the preceding questions (a), (b), and (c) are ‘yes/’ did the plaintiff rely upon such advertisements and statements? A. Yes.
“12. Was the upset of the automobile an accident as defined by the court’s instructions? A. No. (Negligence of defendant, caused by lack of inspection according to their advertising.)
“13. Was the defendant guilty of any negligence which was the proximate cause of the upset of the automobile and the injuries received by the plaintiff? A. Yes.
“14. If you answer the question No. 13, ‘yes/ state fully all of such acts of negligence. A. Tires were not inspected properly. Tires were not inspected on the inside, according to the evidence submitted.
“15. Was the plaintiff guilty of any negligence which caused or contributed to her injuries? A. No.
“16. At any time when the automobile was in the possession of the plaintiff or her husband, did the left front tire strike any obstruction of any kind which weakened it or caused it to blow out? A. No.”
Defendant’s motion to set aside the answers to special questions No. 1, that part of No. 3 after the words “Did not know,” Nos. 4, 5, 8, 11, 12, 13, 14, 15 and 16, and the general verdict, and to grant a new trial, was overruled.
Appellant complains of the rulings of the trial court in overruling his demurrer to plaintiff’s evidence, his motion for judgment at the close of all the evidence, and his motion for a new trial, and the ruling of the court excluding evidence offered, and in giving improper instructions. While argued here under the different headings, these points all bear upon appellant’s contention that the evidence was insufficient to sustain the findings, verdict and judgment, and this depends primarily upon the controlling rule of law applicable under the facts shown. Appellant properly argues that this is a tort action and that the burden of proof was upon plaintiff to prove negligence of defendant, which was the proximate cause of her injuries. 'Appellant also correctly argues he is not an insurer of the safety of the purchasers of used cars which he sells, and that the sale may be made under such circumstances that the rule of caveat emptor applies to the purchaser. However, such a dealer may sell 'a used car upon such representations as to its condition as to make him liable if he deliberately or negligently represents an automobile to be in good condition, safe and dependable to be used, and one who purchases the car, relying on such representations, and without fault on his part, sustains injuries by the use of the automobile. The late case of Curby v. Mastenbrook, 288 Mich. 676, 286 N. W. 123 (1939), states and distinguishes the legal questions applicable here so fully that we feel justified in quoting from it at length. There Mr. Curby and his wife owned an old Ford automobile and trailer, which they took to a used-car dealer to trade in on a better used car. The dealer showed them a number of used cars and stated “they were all in good condition,” and the dealer stated that his cars were “fully guaranteed for thirty days, and they would not let them out unless they were in perfect condition.” Relying on these representations the Curbys exchanged their car and trailer for a newer Terraplane automobile and paid, or arranged to pay, the difference. While driving this car the next day the left front wheel came off, the driver lost control, causing it to collide with an oncoming automobile. The Terraplane was upset and Mrs. Curby was injured. She sued the used-car dealer and recovered a verdict, which the trial court set aside. This ruling was reversed by the supreme court, with directions to reinstate the verdict. In the opinion the court said:
“It is only necessary to discuss a few of the questions raised on appeal, construing the evidence in plaintiff’s favor as on directed verdict. (Yacobian v. Vartanian, 221 Mich. 25, 190 N. W. 641.) Our attention is called to Bayer v. Winton Motor Car Co., 194 Mich. 222, 160 N. W. 642, in which we stated that the rule of implied warranty, which may be regarded as an exception to the general doctrine of caveat emptor, does not apply to the purchase and sale of secondhand machinery such as used cars. However, in the instant case there is considerable evidence that defendants expressly represented that the car was free from defects and would not be sold if any defects existed. An additional guarantee of thirty days was made. When such statements are deliberately calculated to induce confidence in the buyer and promote the sale, they cannot be considered merely ‘puffing’ of goods to promote sales. Where sellers are describing the condition of chattels so likely, if defective, to occasion injury to life and limb, they should anticipate close scrutiny of their language by the courts. What might be considered mere ‘puffing’ of a perfectly harmless product, must be held a distinct representation in the case of an automobile. The condition of the Terraplane was the most material consideration in the entire transaction between the parties, and the words employed by defendants to describe it are clearly within the rule of Worden v. Peck, 245 Mich. 237, 222 N. W. 101. See, also, Murphy v. McGraw, 74 Mich. 318, 41 N. W. 917.
“Appellees admitted that only a few days before the sale, the wheels of the car had been removed for painting, apparently by an independent contractor, who did such work for defendants. Nevertheless, without making any inspection of the wheels thereafter, defendants represented that the car was in ‘perfect condition.’ Obviously, defendants did not know whether or not the car was in ‘perfect condition.’ It has long been established that a party who mis represents a fact is subject to liability for bodily harm resulting from an act done by another in reliance on the truth of the statement, if the speaker intends his statement to induce the action, or should reasonably recognize that it is likely to so induce it, and if he knows that it is false or that he has not the knowledge which he professes to have. (See Restatement of Torts, § 310; Washington & Berkeley Bridge Co. v. Pennsylvania Steel Co., 4 Cir., 226 F. 169; Valz v. Goodykooniz, 112 Va. 853, 72 S. E. 730. Cf. Grinnell v. Chemicals Corp., 282 Mich. 509, 276 N. W. 535; Baxter v. Ford Motor Co., 168 Wash. 456, 12 P. 2d 409, 15 P. 2d 1118, 88 A. L. R. 521; and see Harper, Law of Tort, § 76.) While buyers of used cars would ordinarily be required to inspect them for defects, under the rule of caveat emptor, there was evidence here sufficient from which a jury could find that the buyers relied on the defendants’ statements. These statements, whether careless or deliberate, induced the' buyers to drive the car while in imperfect condition. . . .
“In so deciding, we by no means hold that a used-car dealer is an insurer of the cars he sells. We do not hold that he is required to inspect them for latent defects. ... We hold only that a dealer cannot represent a car to be in ‘perfect condition’ where he does not have the knowledge of the condition which he professes, without assuming the risk of injuries proximately caused by such misrepresentation. Such decision requires only that if a dealer sells used cars ‘as is,’ he should not tell his customers that they are without defects. (See Supera v. Moreland Sales Corp., 13 Cal. App. 2d 186, 56 P. 2d 595; Jones v. Raney Chevrolet Co., 213 N. C. 775, 197 S. E. 757, and Cf. Baxter v. Ford Motor Co., 168 Wash. 456, 12 P. 2d 409, 15 P. 2d 1118, 88 A. L. R. 521; Flies v. Fox Bros. Buick Co., 196 Wis. 196, 218 N. W. 855, 60 A. L. R. 357.)” (pp. 124-126.)
In addition to the authorities cited in the decision just quoted, the following are to the same effect: Dostie v. Lewiston Crushed Stone Co., (Maine) 8 Atl. 2d 393; DeLair v. McAdoo, Appellant, 324 Pa. 392, 188 Atl. 181; Miles v. Chrysler Corporation, (Ala.) 191 So. 245; Egan Chevrolet Co. v. Bruner, 102 F. 2d 373; Pellette v. Mann, 116 Kan. 16 (syl. ¶ 4), 225 Pac. 1067; Bergstresser v. Van Hoy, 142 Kan. 88, 92, 45 P. 2d 855.
In this case plaintiff did not have the burden of showing defendant actually knew the tire was defective when he represented the tires were good. It was defendant’s duty to know the tires were good when he represented them to be so. If he made such representation without having made sufficient inspection of the tires to know whether his statement was correct he is subject to the same liability as though he had made a thorough inspection of the tire, knew it was defective, and had stated it was good. In either event the statement would be inaccurate and the rule of liability the same.
Appellant argues it was not clearly shown the tire which blew out Sunday afternoon was defective Saturday afternoon when the tires were represented to be in good condition. A witness for defendant testified to having examined the tire soon after the accident and having found that there was a fresh mark on the tire and the rim such as would be made by the tire having been driven against a sharp stone. A witness for plaintiff testified that he had examined the tire the next day after the accident and that no such mark was on the tire or rim. Neither the tire nor the rim was brought into court, although they were in the possession of defendant all the time since the day following the accident. From this fact the jury would have been justified in concluding that the production of the tire at the trial would not have been helpful to defendant on the controverted testimony just stated. (See Fowler v. Enzenperger, 77 Kan. 406, 94 Pac. 995.) Furthermore, plaintiff’s testimony was to the effect that the automobile had been driven only a few miles and on the pavement about town, and that the tire had not been driven against any object that would in any way injure or damage it. In this state of the record we think the jury was justified in finding that the tire had received no injury after it was delivered by defendant’s representative Saturday afternoon.
The court’s instructions were in harmony with the rule of law which we hold applicable to the facts shown by the record and found by the jury.
Appellant complains that certain evidence offered by him was excluded by the trial court. This evidence pertained to the general rule of defendant respecting guaranteeing used cars, and particularly the tires on used cars. What the general rule of defendant was in that respect, and insofar as it differed from his signs, placards and advertisements, was not material, since neither plaintiff nor her husband had been informed with respect thereto; hence the ruling of the court was correct.
We have examined all of the authorities cited by appellant, including Bogart v. Cohen-Anderson Motor Co., (Ore.) 98 P. 2d 720 (1940), and find nothing in them which would require or justify a conclusion different from the one we have reached.
We find no error in the record. The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for an accounting. An accounting was had and judgment rendered for plaintiff. Defendant appeals.
The pleadings showed plaintiff and defendant had been in the automobile business. Plaintiff furnished part of the capital and defendant furnished part of the capital and conducted the business. They were to divide the profits on the basis of sixty percent to the defendant and forty percent to the plaintiff. After a few years the plaintiff became dissatisfied and filed this action for an accounting. The trial court on its own motion ordered that the case be tried before a referee. The referee took evidence and conducted an accounting. He filed findings of fact and conclusions of law on May 10, 1938. On May 13, 1938, defendant filed his motion for a new trial on the ground that the referee had made erroneous rulings on admission and exclusion of evidence, on the ground that the report of the referee in his findings of fact and conclusions of law were in part contrary to the evidence, and on the ground of newly discovered evidence. By consent of both parties this motion was heard by the referee. On July 1, 1939, this motion for a new trial was overruled. Notice of appeal was filed September 15, 1939. Subsequently the plaintiff filed a motion for an order approving and confirming the report of the referee. This motion was allowed and judgment rendered in accordance therewith.
Plaintiff filed a motion to dismiss the appeal because it was filed more than two months after the motion for a new trial was overruled. (See G. S. 1937 Supp. 60-3309.)
In his brief in this court defendant states that the sole question being brought to the court’s attention in this appeal is “Are the findings of the referee, as approved and confirmed by the trial court, incomplete and not sufficient upon which to base conclusions of law, accounting and judgment?” This question was not presented when the motion for a new trial was argued before the referee. It was not presented to the trial court by way of motion for a new trial after the motion to confirm the report of the referee had been sustained. Hence the trial court had no opportunity to pass on it. Under such circumstances the question may not be considered by this court on appeal. (See Doty v. Shepard, 98 Kan. 309, 158 Pac. 1.)
If it should be urged that this question was raised by the motion for a new trial which the referee heard, then this appeal was taken too late.
The appeal is therefore dismissed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to recover on an alleged indebtedness arising out of certain contracts for the purchase of grain.
Plaintiff was a Missouri corporation. Defendant, a nonresident of Kansas, was for some time a resident of Colorado and later of Missouri. The action was brought in Johnson county on December 14, 1935. Service was had by publication under G. S. 1935, 60-507, 60-2525 et seq., and certain Johnson county real estate belonging to defendant was attached under G. S. 1935, 60-901.
Plaintiff’s petition alleged an indebtedness due from defendant and prayed judgment therefor. In default of answer judgment was entered for plaintiff on March 23, 1936. Defendant’s land was appraised at $7,500 and sold for $4,212.65 to satisfy plaintiff’s judgment, taxes and interest. Plaintiff was the purchaser. On June 10, 1936, the sale was confirmed and a period of eighteen months for redemption was decreed. ■
Sometime in July, 1937, defendant learned of the foregoing proceedings, and in October of the same year he made application to open the judgment and to be let in to defend under G. S. 1935, 60-2530. Therewith he filed an answer in which he denied owing the debt sued on, and alleged that whatever contract the debt was based on was a gambling contract and therefore illegal and void under a cited Missouri statute.
On November 27, 1937, the trial court set aside its judgment and the sale of the property, and permitted issues to be joined on defendant’s answer.
On May 2,1938, defendant filed an amended answer not materially different from its answer of October, 1937, but-adding thereto a cross petition, the nature of which is not shown, but may be inferred from plaintiff’s motion directed against it — that the matters therein pleaded were not a proper setoff or counterclaim, that they did not arise out of the contract or transaction sued on by plaintiff and were not connected with its subject matter, and that the matters alleged in the cross petition did not exist when plaintiff’s action was begun, and—
“Seventh: That the attachment mentioned in the defendant’s cross petition is in statu quo save and except that the sale of said property has been set aside. That until such time and unless said attachment has been found to be wrongful no cause based upon wrongful attachment can arise.”
This motion was overruled. Plaintiff then lodged a demurrer against the cross petition, which was sustained on May 1, 1939, and defendant was given twenty days to amend.
Thereafter, on May 18, 1939, defendant filed an amended cross petition in which he alleged that he was a resident of Kansas City, Mo., and had never been a resident of Kansas; that he resided near the officers of the plaintiff company and attended the same church and Sunday school with them and associated with them in society; that at all times he was solvent and able to pay any judgment plaintiff might obtain against him and that plaintiff knew that fact; but — •
“Notwithstanding all of such facts, plaintiff secretly and without notice to defendant, and in order to secure judgment, attachment of property and execution herein against defendant, without defendant’s knowledge, wantonly, maliciously, and without regard to plaintiff’s rights, and in order to take advantage of, and to cheat and defraud defendant, left the city and state of the place of residence and place of business of plaintiff and the city and state of the place of abode and place of business of defendant, and wantonly, maliciously and without regard to defendant’s rights, and in order to take advantage of, and to cheat and defraud defendant, secret ly, and without notice to defendant, and in order to secure a judgment, attachment of defendant’s property and execution and sale herein against defendant, without defendant’s knowledge, instituted and filed the above-entitled action and in a state and county foreign to those of plaintiff and defendant, to wit: in the state of Kansas, in Johnson county thereof, and plaintiff did, in like manner and with like intent, cause a writ of attachment to issue herein, attaching certain real estate herein belonging to defendant, located in Johnson county, Kansas, which attachment still stands against such property.”
The cross petitioner further alleged that plaintiff knew he owed it nothing, that the contract sued on was a gambling contract, without consideration and unenforceable; and that plaintiff—
“Wantonly, maliciously, and without regard to defendant’s rights, and, in order to take advantage of, and to cheat and defraud defendant, secretly and without notice to defendant, on or about the 14th day of December, 1935, filed the above-entitled action, and did, in like manner and with like intent, on or about the 23d day of March, 1936, take judgment herein against the defendant and in like manner and with like intent as above described, caused execution to issue therein, causing such attached property to be sold herein by the sheriff of Johnson county, Kansas, plaintiff to satisfy such judgments, such sale being on or about the 1st day of June, 1936.”
The cross petitioner further alleged that defendant’s “wrongs, injuries and damages” as alleged were continuing and would continue indefinitely into the future, and that the judgment, attachment and sale “as aforesaid” were fraudulent, and had resulted in damages to . him which he itemized (including $10,000 as punitive damages) in an aggregate sum of $26,382.76, for which amount he prayed judgment.
Plaintiff filed a motion to strike from the cross petition all matters covered by the trial court’s previous ruling on plaintiffs demurrer. This motion was argued and considered as a demurrer and sustained, and defendant was again given time to plead further. Defendant filed a motion to set that ruling aside, which was denied on October 6, 1939; and the trial court also held that the matter included in the cross petition was barred by the statute of limitations.
Hence this appeal.
At the outset, we must repeat an observation this court is frequently required to make, which is that a liberal use of acerbic adjectives and adverbs does not serve to strengthen the facts alleged to plead a cause of action or defense. A litigant is entitled to choose the forum in which he will sue his adversary; he may consult his own convenience in respect thereto; and if the forum he selects is one which has jurisdiction of the subject matter and such service of process' afe the statute requires, can be obtained therein, the action cannot be regarded as fraudulent, wanton, malicious, nor as designed to cheat and defraud his adversary. The hard words appearing in defendant's cross petition have not the slightest legal significance. (Smith v. Bridgeport Machine Co., 151 Kan. 444, 100 P. 2d 65.)
Our civil code has greatly relaxed the older rules of pleading and now permits a defendant whose property has been wrongfully attached to join with his answer .to plaintiff’s petition (by special leave of court) a supplemental claim for damages for such wrongful attachment, which may be tried along with his defense to the principal action (Baxter v. Brown, 83 Kan. 302, 111 Pac. 430; Oil & Gas Co. v. Wasson, 111 Kan. 124, 127-128, 206 Pac. 320; Bank v. Goerber, 113 Kan. 498, 215 Pac. 285 and syl. 3; Starkey v. Almena State Bank, 130 Kan. 568, 570, 287 Pac. 251; Allison v. Borer, 131 Kan. 699, 701, 293 Pac. 769). See, also, Petersime Incubator Co. v. Ferguson, 143 Kan. 151, 157-159, 53 P. 2d 505; and Anno. Wrongful Seizure — Assertion of Claim, 85 A. L. R. 644-664.
■ Assuming, therefore, that the attachment of defendant’s property in Johnson county on December 14, 1935, was wrongful, defendant’s amended cross petition — which his counsel concedes must be technically regarded as supplemental matter to his answer and filed by special leave of court as the code requires — was filed on October 6, 1939. That was three years, nine months and twenty-two days after his property was attached, and the statute of limitations would bar it completely whether the attachment of defendant’s property be regarded as a trespass to real estate, or as an injury to the rights of another (G. S. 1935, 60-306, Third); or as the malicious prosecution of a civil action. (G. S. 1935, 60-306, Fourth.) In Jacobs v. Greening, 109 Kan. 674, 676, 202 Pac. 72, where a garnishment of funds had been wrongfully procured, it was held that the action for damages therefor was essentially one for malicious prosecution of a civil suit. Garnishment and attachment rest on the same basic principle and their wrongful procurement likewise. In Jacobs v. Greening, supra, Mr. Justice Mason said:
“The petition, alleged that the defendants were actuated by malice in procuring the garnishment and the restraining order, and that no probable cause therefor existed. The action was begun more than a year after the matters complained of had taken place, and, regarded as one for malicious prosecution, was therefore barred by the statute of limitation. . . . Attachment or garnishment process issues as a matter of course upon the plaintiff’s filing an affidavit and complying with the other statutory requirements. . . . We regard an action (other than one upon a bond) for its wrongful procurement as not maintainable unless brought as one for malicious prosecution. That view appears to have met general, if not universal, acceptance. (22 Cyc. 1061; 14' R. C. L. 479.) The demurrer was therefore rightly sustained as to the second cause of action.” (pp. 675, 676.)
It is suggested, however, that the statute of limitations did not run against defendant’s claim for damages because plaintiff and defendant were nonresidents of Kansas. So far as the plaintiff was concerned, it had invoked the jurisdiction of the Johnson county district court; it was represented by counsel in that court, and was amenable to service on any matter pertaining directly or indirectly to the subject matter of the action it had begun on December 14, 1935. (Herthel v. Barth, 148 Kan. 308, 81 P. 2d 19; Travis v. Glick, 150 Kan. 132, 91 P. 2d 41; Graves v. Foster, 158 Okla. 36, 12 P. 2d 502.)
While the civil code gives a defendant three years in which to make application to open a judgment procured on publication service and to be let in to defend against the original action, it does not give him more than the regular statutory time allowed by the civil code to set up a cross action, counterclaim or supplemental claim for damages arising out of the institution of the original action or out of anything incidental thereto.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
Defendant was convicted of a violation of a criminal provision of the statutes with reference to banks and banking (G. S. 1935, 9-140).
He was tried on an information containing two counts. In the first count it was charged that on November 15, 1937, one J. R. Goodan, the assistant cashier and managing agent of the Corwin State Bank, a banking corporation located at Corwin, Harper county, Kansas, conspiring with and aided and abetted by one E. G. Gillen and the defendant Edwards, unlawfully, feloniously, knowingly and willfully abstracted, misapplied and converted to the use of all three of them moneys, funds, securities and credits of the Cor-win State Bank in the sum of S3,000 with intent to injure and defraud that bank. The second count was like the first, but charged an offense on November 24,1937, in the amount of |450.
At his trial Edwards was convicted of both counts, his motion for a new trial was denied, and he appeals. We note that counsel representing him in this court did not appear for him at his trial in the district court.
Appellant first contends the trial court erred in overruling his motion to quash the information. The abstract does not show any motion to quash, nor does the only journal entry of judgment shown disclose any ruling. The state’s brief does say that such a motion was filed but was never presented to the trial court nor ruled upon. The state of the record is not such that we can discuss the claimed error. (State v. Clough, 70 Kan. 510, 79 Pac. 117; State v. Turner, 114 Kan. 721, 220 Pac. 254.)
Appellant next contends the trial court erred in overruling his motion to compel the state to elect as to the several offenses attempted to be set forth in the two counts of the information. The abstract does not disclose any such a motion, nor any ruling on it. There is nothing for this court to consider. (State v. Finney, 141 Kan. 12, 28, 40 P. 2d 411.)
Although not next in order, we take up appellant’s contention the trial court erred in its instructions to the jury. A careful search of the abstract and counter abstract fails to disclose either that the appellant requested the giving of any instruction or made any objection to the instructions that were given, nor are the instructions shown in the abstract. In the brief certain instructions and portions of others are quoted and criticized in view of appellant’s version of what the evidence showed. The matter of claimed error in the instructions is not properly before us. We have, however, examined the complaints made. There is nothing fundamentally wrong with any of the instructions quoted in full. Where only excerpts are given, we discern no prejudicial error, although it must be noted that where the context with other parts of the same instruction and with other instructions does not appear, there is no sound basis for definite determination. As bearing on the whole matter, see State v. Stiff, 148 Kan. 224, 226, 80 P. 2d 1089; State v. Linville, 150 Kan. 617, 620, 95 P. 2d 332, and State v. Carr, 151 Kan. 36, 46, 98 P. 2d 393. The last case treats some of the contentions made in the present appeal.
Appellant also contends the trial court erred in the admission of evidence, and that the verdict is not supported by the evidence. Reference is made to considerable evidence concerning the admission of which complaint is made. We have examined the abstract and find that in only two instances was there any objection made in the trial court to the evidence now attacked. Where no objecttion is made to the admissibility of evidence in the trial court, there can be no review in this court (State v. Greenburg, 59 Kan. 404, 53 Pac. 61; State v. Fox, 116 Kan. 180, 225 Pac. 1042; Snyder v. Rankin, 120 Kan. 186, 243 Pac. 287; State v. Netherton, 133 Kan. 685, 690, 3 P. 2d 495). As is shown later, there was evidence that Gillen signed Edwards’ name to two checks, one on the Burns State Bank, the other on the Peabody State Bank, and that these checks were worthless. The state called as witnesses officers of the two banks, who testified that Edwards did not have funds in either bank to meet the checks. Objection was made to questions eliciting that information. When it is remembered that Edwards, Goodan and Gillen were charged jointly and that the evidence tended to show a chain of circumstances leading up to proof of the unlawful taking of the $3,000 charged in the first count, and had the particular checks been authorized and honored, that would have tended to show lack of criminal intent, it is apparent that it was proper to show the checks were in fact worthless. As a matter of fact, that had been testified to by other witnesses and without objection. The testimony complained of was cumulative. Its admission in evidence was not erroneous.
Was the verdict supported by the evidence? The general rule is that in determining the sufficiency of evidence to sustain a conviction, this court looks only to evidence which is favorable to the decision, and if the essential elements of the charge are sustained by any legally admitted evidence, the conviction must stand. (See State v. Wood, 145 Kan. 730, 67 P. 2d 544.) With that rule in mind we summarize the evidence. No good purpose will be subserved by giving all of the details of-the maze of financial transactions involved.
J. R. Goodan was the assistant cashier and the managing agent and officer of the Corwin State Bank in Harper county, Kansas. He had known E. G. Gillen, who was a customer of the bank, for over three years. Up to about September of 1937, Gillen’s account was just an average active account. Sometimes he was overdrawn for small amounts. About that time Gillen’s account became more active, and he was permitted to overdraw his account. The first large overdraft that E. G. Gillen had at the Corwin State Bank was occasioned when he drew $900 to pay half of the purchase price of some bonds. He turned this money over to Edwards or one Harsh with whom Edwards was dealing. Later Gillen saw Edwards at Russell, Kan., and Edwards said he had been beaten out of the money. Gillen called up the Corwin State Bank and got $900 or $1,000 more. Later Gillen and Edwards went to Hutchinson, what happened there not being entirely clear from the record. Thereafter on Gillen’s order Goodan wired $3,100 to Kansas City to be used by Edwards in getting bonds from a Mr. Moore. These bonds were never received by Goodan and Edwards. While these events were transpiring, on October 25,1937, E. G. Gillen assisted his brother in procuring from the Corwin State Bank a draft for $4,760, paying for the same with two checks which were not paid when presented for payment and were returned to the Corwin State Bank. The giving of these checks formed the basis for the criminal prosecution of M. E. Gillen, whose appeal from conviction on one count is this day decided (State v. Gillen, ante, p. 359, 99 P. 2d 832). About November 4, 1937, E. G. Gillefi went to the Corwin State Bank and arranged for payment of the $3,100 item above mentioned and the two worthless checks given for the draft by depositing two checks, one on the Burns State Bank for $4,450 and one on the Peabody State Bank for $4,350, to both of which he signed Edwards’ name, underneath which he placed his own initials. These checks were not paid on presentation. Before these last two checks which had been sent forward for collection could be returned, Gillen told Edwards what had been done, to which Edwards made no objection. Gillen and Edwards were both aware that the series of transactions had caused or would cause a shortage of cash in the Corwin State Bank, and sometime prior to the time the two checks were returned unpaid they visited Goodan at his home in Hazelton, which is not far from Corwin, where the bank was located.
At that time they suggested that the Corwin State Bank approve by wire to the Union National Bank in Kansas City payment of a check for $5,000, that Edwards knew a man who had a chemical process by which money could be raised, and they would have the money raised to larger denominations, and in that way funds to take care of overdrafts and shortages could be obtained. Goodan refused. The next day, November 15, 1937, Gillen and Edwards saw Goodan at the Corwin State Bank and they wanted $3,000. At first Goodan'refused. Later Goodan agreed to O. K. a check at Cherokee, Okla., and Gillen and Edwards left saying they were going to Cherokee. Later Gillen and Edwards went to the Farmers & Merchants National Bank in Cherokee and as a result of telephone conversations and telegraphic advices between that bank and the Cor-win State Bank, a draft was issued to Gillen. It was taken to Oklahoma City and cashed, Gillen receiving the payment. Gillen and Edwards then went to a hotel there and Edwards introduced Gillen to one Wilson, the reputed owner and manipulator of the chemical process for raising money. This process included putting the money in a press where it had to remain for some time. The three spent some time together. Gillen and Edwards went back later and got a package supposed to contain the raised bills. Later they opened the envelope and found “they had drawn a blank.” Thereafter Gillen saw Goodan and told him the man got away with the money and they got nothing for it. Thereafter Goodan had demanded return of the money from Gillen. On November 24, 1937, Gillen and Edwards came to the bank and told Goodan they had some bonds, and if they would do him any good he could put them in the vault and maybe they would help out. The face value of the bonds was $6,000. Some of them were industrial bonds, some Texas oil bonds, and two, totaling $1,500, were registered. There was evidence tending to indicate some of the bonds were outlawed, some past due, and that all were of little value. They wanted $600 for the lot. They told Goodan the party who owned the bonds was waiting and they had to have enough cash to get them. Finally Goodan issued the bank’s draft for $450 and took $4,500 face value of bonds, which never went into or became a part of the assets of the bank. The testimony showed the party waiting was Harsh, who with Gillen and Edwards took the draft to Cherokee, Okla., where it was cashed. From there they went to Anthony, Kan., where the funds were delivered to Edwards. We shall not detail any testimony showing the continued and close relationship between Edwards and Gillen prior to and during the times above mentioned, and their various conversations and visits with Goodan, nor the considerable testimony with respect to Gillen’s overdrafts, and the amount of the shortages of the bank-from; time to. time. Appellant’s contention the evidence does not support the verdict is based in part on evidence which contradicts the above and in part on his claim that certain evidence was incompetent. We have examined the complaint and have reached the conclusion that. the. evidence, a mere outline of which is given, does support the verdict.
There is also'some contention that by reason of what transpired in the state of Oklahoma, the offense, if any, was committed there, and the venue was not in Harper county, Kansas. The record indicates this question was not raised in the trial court. It is too late to raise it here. (State v. Shehi, 125 Kan. 110, 263 Pac. 787; State v. Toelkes, 128 Kan. 293, 278 Pac. 20; State v. Long, 148 Kan. 47, 48, 79 P. 2d 837.)
It has not been made to appear that the trial court erred in the rulings above mentioned or in denying the motion for a new trial.
The judgment of the lower court is affirmed. | [
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|
The opinion of the court was delivered by
Hoch, J.:
The defendant was convicted on two counts of manslaughter in the fourth degree, and sentenced on both counts, the sentences to run concurrently. He appeals to this court, assigning errors which will be hereinafter discussed.
Raymond Phelps, the defendant, a resident of Wisconsin, had formerly lived in Topeka, Kan., and had been visiting for several days with his father in Topeka. On the evening of March 7, 1939, he was driving his father’s automobile and had with him five passengers. A young woman was in the front seat with him and two couples were in the back seat. They were on a pleasure ride, having left Topeka sometime after eight o’clock in the evening. As they were proceeding eastward about two miles east of Lawrence, Kan., Phelps came up behind another car which was traveling eastward, attempted to pass it, and in doing so his car collided head-on with a car coming from the east. Mr. and Mrs. Bernard Brown, the two occupants of the westbound car, were killed. There is no dispute that the Phelps car was on the wrong side of the road when the collision occurred.
The information contained two counts, the first one based on the death of Mrs. Brown and the second on the death of Mr. Brown. In each count it was charged, in substance, that the defendant was driving unlawfully and with culpable negligence and in such a reckless manner as to indicate a wanton disregard for the safety of others, and at such a rate of speed as to endanger the lives of others, and by so operating the car caused the death of Mr. and Mrs. Brown.
For purposes of this review we need make only brief reference to the testimony. The accident took place about eleven o’clock p. m. The pavement was dry. The Phelps car was going down a slight grade to the east and was approaching a car which was traveling at about 45 or 50 miles an hour, according to the testimony of Hamilton, the driver. As the Phelps car turned out to the left to pass the Hamilton car the Brown car suddenly appeared and the collision occurred. Phelps explained his failure to see the approaching car by the fact that several hundred feet to the east there was a dip in the pavement and that the Brown car came suddenly out of the dip. He also testified that just after seeing the lights of the approaching car it appeared that the other car was wavering. He applied his brakes, and the evidence disclosed that there were skid marks made by his car for a distance of approximately 80 to 90 feet which continued almost, if not entirely, to the point where the collision occurred. There was no testimony that skid marks were made by the Brown car. Hamilton testified that he had observed a car coming from the east when it was four or five hundred feet away, that he did not know how fast it was traveling, that nothing about its operation attracted his attention, that it was traveling on the right or north side of the pavement and did not go over on his side, that he did not see the Phelps car coming from the west until almost simultaneously with the accident which took place about 25 feet back of his car, that he heard the screeching of the brakes immediately before the accident, that he heard the screech of the brakes about the samé time that the lights illuminated the interior of his car. A passenger in the Hamilton car gave substantially the same testimony. One of the passengers in the Phelps car who was riding in the back seat said that when they reached the top of the grade just before proceeding down the slope to the east she saw the headlights of a car coming toward them and then she noticed the lights disappeared, but she did not realize that Phelps had pulled over to the left side of the road in order to pass the car in front of him, that she did not know just how far away the lights from the approaching car were, but that “there was some little time intervened” and that “there were a few seconds” between the time she first sftw the lights of the approaching car and when the crash took place. The young woman who was riding in the front seat with Phelps testified that just before the accident she had been leaning over operating the radio in the car, that while doing this she looked up and saw a car coming from the east, that she had not seen any car coming over the hill beyond the dip and when she first saw the lights of the approaching car they were about 200 feet from it, that “it might have been more or it might have been less,” that after she noticed the lights Phelps put on the brakes, the car coming from the east swayed a little, but continued coming in their direction.
One assignment of error is that the court erred in not instructing the jury that since the death of Mr. and Mrs. Brown occurred in the same accident, the defendant could not be found guilty of the two offenses and that the court erred in sentencing him upon two counts. It appears, however, that no objection was made at the time to the instructions under which the defendant could be found guilty on two counts; and that although the defendant was found guilty on both counts, sentences were imposed to run concurrently. In view of these facts and , of the conclusions reached herein on other matters, we do not now pass upon this question.
Another assignment of error is that the verdict was improperly changed after it was returned. The facts on this matter are shown by the following comment by the court prior to overruling the motion for a new trial:
“The jury came into the courtroom. The court asked the jury whether it had arrived at a verdict and was advised that it had. The court looked at the verdict and handed the verdict to the clerk. The clerk read the jury found the defendant guilty on the second count. The court had seen the verdict before and it appeared to him at the time the wording of the verdict was the defendant was guilty on two counts. The court remarked he didn’t read the verdict in that way. The verdict was returned to the jury, to the foreman, and the foreman changed the figure ‘2’ to ‘first and second,’ as I recollect it now. The court then handed the verdict to the clerk again, who read it, and it was to the effect that the jury found the defendant guilty as charged in the first and second counts. The jury was inquired of as to whether or not that was its verdict and there was not a negative response. In other words, all the jurors responded to the effect it was their verdict.”
A similar question was passed upon by this court in the case of State v. Cary, 124 Kan. 219, 257 Pac. 719. In that case the jury returned a verdict of guilty on “one” count. In open court the judge inquired of the jury what it meant by the verdict and was informed that it meant the “first count.” Thereupon the court had the foreman, in the presence of the jury, change the verdict from “one” count to “first count.” As in the instant case, the verdict was then passed to the clerk and read, after which the court inquired of each juror if the verdict as read was the verdict of the jury and received an affirmative answer from all jurors. It was held that the objection to the change in the form of the verdict was highly technical and without merit.
In the case of State v. Wade, 56 Kan. 75, 42 Pac. 353, the jury returned a verdict which read, “We, the jury-the defendant guilty as charged in the information.” This court held that it was not error to overrule a motion for new trial based upon the ground that the verdict did not contain the verb “find.” In the instant case the change of the verdict to read “first and second counts” instead of “2 counts” was not a change of substance and was in no way prejudicial to the defendant.
Appellant further contends that the court erred in failing to instruct the jury on the question of “negligent homicide.” G. S. 1937 Supp. 8-529, which was section 29, chapter 283, Laws of 1937, as amended by section 1, chapter 59, Laws of 1938, reads as follows:
“(a) When, the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in negligent disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide, (b) Any person convicted of negligent homicide shall be punished by imprisonment for not more than one year or by a fine of not less than $100 nor more than $500, or by both such fine and imprisonment, (e) The commissioner shall revoke the operator’s or chauffeur’s license of any person convicted of negligent homicide.”
G. S. 1935, 62-1447, provides:
“The judge must charge the jury in writing and the charge shall be filed among the papers of the cause. In charging the jury he must state to them all matters of law which are necessary for their information in giving their verdict. . . .”
After instructing the jury on the question of manslaughter the court gave the following instruction:
“If you do not find the defendant guilty of manslaughter you will next inquire whether or not he is guilty of a violation of section 8-531, R. S., which is a lower degree of the principal crime charged and which provides in substance that any person who drives an automobile in such a manner as to indicate either a willful or wanton disregard for the safety of persons shall be deemed guilty of reckless driving.”
Section 8-531, to which the court referred in that instruction, was section 31 of the same chapter 283, Laws of 1937, of which section 8-529, defining negligent homicide, was a part.
Had a specific request been made for an instruction on negligent homicide the failure to give such an instruction would undoubtedly have been error under the statutes and the decisions of this court. The question here presented is whether the court erred in failing to instruct with reference to negligent homicide in the absence of specific request to do so. It is not easy, and perhaps it is impossible to entirely harmonize the decisions upon this question. In the case of State v. Winters, 81 Kan. 414, 105 Pac. 516, which is one of the principal cases relied upon by the appellee, the court discussed the statute which requires the court to inform the jury as' to all matters of law necessary for their information (G. S. 1935, 62-1447, supra), and stated that early in the history of the state it was held that the statute was imperative and should be obeyed without request, citing Craft v. State, 3 Kan. 450, and State v. Grubb, 55 Kan. 678, 41 Pac. 951, as illustrative of the peremptory character of the statute. Further discussing, however, the trend of subsequent decisions, the court said: “Very soon, however, it became apparent that a reversal ought not to .follow every failure to obey the statute,” and a number of cases were cited wherein it was held that no error was committed in failing to instruct with reference to offenses inferior to the one charged or of which the defendant had been convicted. It may be noted that many of these cases were prior to State v. Grubbs, supra, to which reference had just been made in the opinion. In State v. Grubbs, wherein the defendant was charged with the crime of rape and there was a question whether under the evidence the completed crime had been committed, the court held that the trial court erred in failing to instruct the jury as to the law with reference to an attempt to commit the crime even though the defendant had not asked such instruction.
The opinion in State v. Winters, supra, continued:
“From all the decisions noted it may be concluded that the statute means what is says and should be followed, but that a duty rests on counsel for the defendant to aid and not to ambush the court, and consequently instructions should be requested covering all lesser degrees or lesser crimes involved in the main charge which the defendant desires to be considered. A request sufficient to direct the mind of the court to the subject is enough. Good instructions need not be offered, or a good theory for them formulated; and the evidence itself may point so plainly to the necessity for such instructions that no request is necessary. Generally, however, a failure to make the request waives error in failing to instruct, and, generally, error in failing to instruct or in giving wrong instructions upon lesser degrees or offenses works no prejudice when the defendant is convicted upon satisfying evidence of a higher charge, under correct instructions relating to it. Should it appear that if omitted instructions duly requested or clearly required by the evidence had been, given the jury might naturally and probably have convicted of a lesser degree or offense, the omission will constitute prejudicial error.” (p. 421.) (Italics ours.)
The situation presented in State v. Winters, supra, was particularly strong against the defendant because he had not only failed to request an instruction on the lesser offense but had affirmatively objected to the giving of such an instruction.
The appellee invokes the rule announced in State v. Bell, 121 Kan. 866, 250 Pac. 281, and adhered to and followed in numerous cases to the effect that errors made by the trial court without objection or without being clearly raised and presented on the motion for new trial are unavailing on appeal. Many of the cases cited deal with that broad general rule. Along with that well-established rule, however, must also be considered the rule in homicide cases, repeatedly declared, that the court should instruct the jury not only on the evi dence adduced by the prosecution in support of the higher offenses but also upon the whole evidence and especially upon the lower degrees of the offense if there is substantial evidence applicable to the lower degrees. The general rule is stated in 30 C. J. 396, as follows:
“. . . it is proper and the duty of the court upon a trial for homicide, when charging the jury, to state and explain fully the law defining the crime for which defendant is being prosecuted, and every degree or grade of homicide of which he may be convicted under the indictment and the evidence, whether such an instruction is requested or not . . .” (Italics ours.)
The rule was commented upon in State v. Cunningham, 120 Kan. 430, 243 Pac. 1066, and it was there recognized that in some cases where the evidence was such that the court might have presented the law of the lower degrees without error, but had omitted to do so, and the accused had not requested such an instruction, the omission would not be material error. One of these cases is State v. Cary, 124 Kan. 219, 257 Pac. 719, where the question involved was failure to instruct concerning the defendant’s presumption of innocence and as to the burden of proof. Cited therein in support of the holding was State v. Clough, 70 Kan. 510, 79 Pac. 117. In State v. Clough the information charged the crime of robbery in the first degree: It was held that it was not error for the trial court to omit to instruct the jury as to the lower degrees of crime included in the charge “when the evidence tends to establish the highest degree of crime charged and does not tend to establish guilt of any lower degree of crime included therein.” (Italics ours.) In that case there was complete lack of evidence to sustain a verdict of guilty of any crime included in the charge other than robbery in the first degree. It was stated in the opinion that had the jury returned a verdict of guilty of such lesser offenses “it would not -have been sustained by the evidence and should have been set aside on motion.”
The latest case in which this court dealt with this question was State v. Gloyd, 148 Kan. 706, 84 P. 2d 966. The defendant was there charged with manslaughter in the first degree and was convicted of manslaughter in the fourth degree. The facts in the case were strikingly similar to those in the instant case. The defendant, driving at a high rate of speed, attempted to pass another car and in doing so collided with a third car, forcing it off the highway and fatally injuring one of its occupants. No instruction was asked or given with reference to the offense of negligent homicide. The omission of such instruction was held to be reversible error. Counsel for appellee distinguishes State v. Gloyd on the ground that in that case the uniform act regulating traffic, of which the section dealing with negligent homicide is a part, was called to the attention of the trial court on a motion to quash the information. In that motion the defendant contended that the act was 'unconstitutional. The act contains many sections, including 8-529 and 8-531, here involved, and the record in State v. Gloyd does not disclose that specific attention of the trial court was called to the section on negligent homicide. In the instant case, as in State v. Gloyd, no instructions were requested on negligent homicide. In both cases, however, it is apparent from the record that the uniform traffic act which contains the section on negligent homicide was within the attention of the court. In the instant case, although not requested to do so, the court' specifically instructed with reference to the offense of reckless driving as defined in section 8-531. Just why the court should instruct on the offense of reckless driving, defined in 8-531, and fail to instruct on negligent homicide defined in 8-529 is not apparent. The substance of the charge against the defendant was that by his unlawful operation of the automobile he had caused the death of two persons. If the evidence called for instruction on reckless driving under 8-531, certainly it called for instruction on negligent homicide under 8-529. The penalty provided for manslaughter in the fourth degree is a term of not less than six months nor more than two years. The penalty on first offense for reckless driving is imprisonment for not less than five days nor more than ninety days or by a fine of not less than $25 nor more than $500, or by both such fine and imprisonment. The penalty for negligent homicide is imprisonment for not more -than one year or by a fine of not less than $100 nor more than $500 or both such fine and imprisonment. Under the instructions the jury was given only two alternatives — -the penalty provided for manslaughter in the fourth degree or for reckless driving. The evidence in this case made the statute defining negligent homicide clearly applicable. Upon the facts disclosed by the record, including the fact that the court evidently had before it, when giving its instructions, the uniform traffic statute.which includes both sections, 8-529 and 8-531, we are impelled to the conclusion, following State v. Gloyd, supra, that the defendant was entitled to an instruction on the subject of negligent homicide even though such instruction was not requested. That conclusion is further fortified in the instant case by some uncertainty as to whether the trial court did in fact approve the verdict. In commenting on the case in connection with the motion for new trial the court said, among other things:
“The state claims that this defendant was culpably negligent in the manner that he operated his automobile when he attempted to pass another automobile on the highway. The evidence along that line I think as produced by the state was that he came up behind another car, both of them going at a fairly good rate of speed. He met a car coming from the other direction and that it was due to the manner in which he operated his car that caused that collision. The defendant doesn’t question the fact but what there was a collision and that collision resulted in the death of the people in the other car. He says, however, that the road was constructed at the place in question in such a manner he didn’t have a clear view of the road to the east and that he was not familiar with the road; that on his attempting to pass the car going in the same direction he was, he went to the left-hand (north side) of the road; that suddenly there loomed before him the lights of another car coming against him; that when he discovered that kind of a situation he clamped on the brakes and did everything he could to avert the accident which resulted in the tragedy. He says, also, that the car coming from the east was rather uncertain in its movements and he thought at first that sometime during the interval the car was traveling on the south or its left-hand side of the road. Now those are the facts presented to the jury. Of course, they could be amplified, I know, but those are the facts upon which the jury passed in the case. The jury arrived at the conclusion that the defendant was culpably negligent in the manner he operated his car on the day and date in question. . . .
“I expect a lot of other people have done the same thing this man has done. There just wasn’t any other car coming from the other direction and they were successful in passing the car in front of them. The fact that a person may not be familiar with the road requires more caution on their part. They are bound to operate their cars on the highways of this state with knowledge of the fact other people may be using the highways at the same time, which they have a right to do. . . .'
“I am perfectly aware this is not tried entirely upon the question of negligence. A person might be negligent and still not be guilty of any crime. The mere fact he may be negligent does not justify the court in- adjudging him guilty of a crime, yet where the statutes define the crime, sets out what its elements are and then the court is aided by judicial decisions, I cannot say that the verdict returned by the jury is out of line with the correct solution of the situation as developed by the facts as to .warrant the court in setting aside the verdict. The fact that the judge may not agree with the solution given to the problem by the jury does not warrant the court in setting aside the verdict. If the court figures that the verdict is of such a character it cannot in good conscience approve it, then it becomes the duty of the court to act. I do not want to be understood by that to say that I disagree with the jury in connection with the solution of this case. I express no opinion in that way at all. The case was submitted to the jury and was there, I believe, under proper instructions.”
The trial court has a duty to exercise a judicial judgment as to the justice of a verdict of guilty in a criminal case — a duty of approving or disapproving the verdict. (State v. Wilson, 128 Kan. 756, 280 Pac. 769.) We do not say that the trial court did not approve the verdict. But the comment by the court tends to emphasize the necessity that existed for full instructions as to the lesser offenses of which the defendant might be found guilty under the information and the evidence adduced.
The conclusions already stated make unnecessary discussion of other assignments of error.
The judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Hoch, J.:
This was an action to subject the farm upon which defendant lived to payment of a money judgment. Motion was filed to quash the execution on the ground that the farm was defendant’s homestead and that the plaintiffs had waived any alleged purchase-money lien. The motion was sustained and a motion for a new trial overruled. Plaintiffs appeal.
The principal question presented is whether the court erred in holding that the defendant could claim homestead exemption as against the judgment.
On October 10, 1938, the plaintiffs, as executors of the estate of Winfield Downey, deceased, filed an amended petition asking judgment on a promissory note given to the deceased by his son, the defendant, L. J. Downey, on February 3, 1927. The petition alleged that on February 17, 1936, Winfield Downey and his wife, in connection with a property division made in contemplation of a divorce, sold to their son, the defendant, an eighty-acre farm in Miami county, Kansas, for $4,000; that the defendant paid to the mother $2,000 which was in settlement of her property interests in the estate of her husband, and that by payments thereafter made he reduced the debt to his father to $1,173, and on February 3, 1937, executed a promissory note to his father for that amount. The petition further alleged that $130 had subsequently been paid and there was then due on the note $1,043 as principal and $52.50 as interest,' which the defendant had refused to pay. Further allegations and the prayer of the petition were as follows:
“Plaintiffs further state that defendant, immediately upon sale and conveyance of said property to him, took full possession thereof as owner and continues in possession and claim of ownership. That by reason thereof and the fact that said note represents and evidences a part of the purchase price of said property, defendant is not entitled to any exemption therein as a homestead as head of a family or in any other character, and that plaintiffs are entitled to a vendor’s lien upon said property for the amount due from defendant on said note prior and paramount to any right, claim or interest of defendant and to special judgment thereon against said property.
“Wherefore plaintiffs ask judgment in the sum of $1,095.50, with interest thereon at 10 percent from February 3d, 1938, to date of judgment and for the costs of this action and for a vendor’s lien upon said property, prior, superior and paramount to defendant’s right, title, claim or interest thereon or thereto and for special judgment therefor and execution thereon.”
While the action was pending negotiations for settlement were carried on between the parties and an agreement was reached. In consideration of defendant’s agreement to confess judgment, if certain credits and claims which he had-were deducted, the plaintiffs agreed to omit all reference to waiver of exemptions and claim for a lien as set out in the petition. Journal entry embodying this agreement was prepared by plaintiffs’ attorney and approved by counsel for defendant. The judgment recited that—
“. . . the parties announced in open court that this action be settled by the plaintiffs taking judgment against the defendant in the sum of nine hundred ninety-seven & 88/100 dollars (8997.88), and the defendant waiving any and all claims he may have against the estate of Winfield Downey, deceased, including the specific legacy described in the will.”
The judgment entered October 21,1938, contained no reference to waiver of exemptions or claim for a lien.
About four months thereafter, on February 11, 1939, execution was issued upon the judgment and returned unsatisfied on March 13, 1939. On May 23, 1939, plaintiffs brought proceedings in aid of execution, and the defendant appeared on June 5, 1939, and testified concerning his property. He testified, in substance, that the note ■was given for the balance due on the place; that he bought the place from his father and mother jointly, and that he had no other property. No order was made on June 5, but on the same day execution was issued and levied upon the farm. On June 7, 1939, the defendant’s attorney wrote to the attorney for plaintiffs, stating that the court would hear additional testimony on the matter on the following Monday if that was satisfactory, and if not, at some other near date in the future. Plaintiffs’ attorney replied, stating, in effect, that the hearing had been merely a hearing in aid of execution, that the defendant had appeared and answered and that the proceeding was at an end. However, on June 12 the defendant and attorney appeared before the court and cross-examination of L. J. Downey, the defendant, was permitted. Neither plaintiffs nor their attorney appeared. It is not necessary to recite the defendant’s further testimony in full. Suffice it to say that he testified that he did not give either his father or mother a note at the time he re-, ceived the deed and that he also bought from his father a $300 team of horses, wagon, harness, implements and half of the household furniture. He said that no note was asked for at the time and that no note was given until a year later w'hen his father asked for his money, and that the note was for the amount then due on all of the property that had been sold to him. The defendant’s mother testified that she did not know whether her husband got a note or not, that the son bought the team, the implements and other things on the farm.
On June 17 defendant filed a motion to quash the levy of execution on the ground that he was head of a family and that the farm was his homestead, and a hearing was held upon this motion on June 26. The motion was supported by affidavits, the plaintiffs objecting to the procedure. The defendant’s affidavit not only recited facts showing the place to be a homestead, but also contained the statement that “the judgment mentioned in the execution is not an obligation contracted for the purchase of such premises or the erection of improvements thereon.” The defendant also offered transcript of the testimony of the defendant and the testimony of the register of deeds taken on June 12, 1939, to which plaintiffs objected on the ground that the defendant was on the stand on June 5, was not cross-examined at that time, and that no further hearing had been set by the court and no notice of such hearing given to the plaintiffs. A rather lengthy colloquy between the attorneys followed, and plaintiffs’ objection to the introduction of the testimony was overruled. Plaintiffs then called several witnesses to testify as to conversations had with Winfield Downey for the purpose of showing that he said that the note was given for the purchase of the farm, but objection .to introduction of this testimony was sustained.
On July 6, 1939, the court made findings of fact, conclusions Of law and entered judgment. The findings of fact were in part as follows:
“1. The court finds that in the amended petition of the plaintiffs, filed herein on October 10, 1938, plaintiffs sought recovery of $1,095.50 with interest thereon at 10 percent from February 3, 1938, and for costs of action and for vendor’s lien upon the property of the defendant, L. J. Downey, described as the west one-half of the southwest quarter of section 25, township 16, range 23, Miami county, Kansas.
“2. That on October 21, 1938, a journal entry of judgment was entered in said cause settling the controversy between the plaintiffs and the defendant by the defendant consenting to the entry of judgment against him in the sum of $997.88, and said L. J. Downey, defendant, waiving any claims he might have had against the estate of Winfield Downey, deceased, including the specific legacy described in the will.
“3. From the preponderance of the evidence and from the pleadings on file the court finds that plaintiffs have waived any rights to a purchase-money lien upon and against the west one-half of the southwest quarter of section 25, township 16, range 23, Miami county, Kansas, owned by the defendant, L. J. Downey, and that said tract of land is exempt from execution for the satisfaction of the judgment rendered in said cause, because of the fact that the same is a homestead, and that any alleged purchase-money lien aforesaid was waived by the plaintiffs.”
The judgment recited that the farm was exempt from sale to satisfy the money judgment and quashed the levy of execution.
Appellants argue that homestead exemption cannot be claimed as against a debt incurred in the purchase of property. We do not understand that the appellee contends otherwise, and certainly there can be no dispute on that question. The homestead section of the constitution (sec. 9, art. 15) provides:
“. . . no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon.”
This language was repeated verbatim in the homestead section of the code of civil procedure, G. S. 1935, 60-3501. The law has been laid down in a long line of decisions of this court from Pratt v. Topeke Bank, 12 Kan. 570, to DeBolt v. Sharp, 148 Kan. 298, 80 P. 2d 1054. The appellee contends that the question of whether the note represented a debt incurred in the purchase of the farm was an issue raised in the action on the note, that there was no adjudication on that issue and that whatever right the plaintiffs might have had to proceed against the farm was waived by them. Appellee also contends that the total debt which he owed to his father was about $2,-400, that this debt had been reduced to less than $1,000 and that the note does not now represent the purchase debt on the farm. In any event, while the court, in quashing the levy of execution, made no finding as to whether the note was for purchase money, it did find that the “plaintiffs have waived any right to a purchase-money lien” upon the property. We are mainly concerned as to whether there was evidence to support that finding. It must be noted that the petition in the action on the note specifically recited that the note represented part of the purchase price of the farm, that the defendant was not entitled to homestead exemption thereon and that “plaintiffs are entitled to a vendor’s lien upon said property for the amount due from said defendant on said note.” Also, that the petition prayed for judgment “and for a vendor’s lien upon said property.” Appellants contend that in the agreement for judgment the only thing which they waived was inclusion of any reference to exemptions or to a lien and that they did not waive any substantive rights. The appellee says that the correspondence clearly shows that he was led to believe that in consideration of his consent to a straight money judgment and his abandonment of any claim on his father’s estate the plaintiffs were waiving any right to proceed against his home stead on the ground that the debt was for purchase money. Certainly, unless the plaintiffs were waiving something .of substance the mere omission from the judgment of reference to a lien would have had little significance to him. However, we find still stronger support in the record for appellee’s contention. In the hearing on June 5, when defendant Downey was on the witness stand, this colloquy occurred:
“Q. What was the amount of the purchase price?
“Mr. Shawver: I object to that as immaterial. That matter was litigated in the lawsuit; they waived their right to any lien.
“The Court: Let us see.
“Mr. Shawver: They waived that in order to get judgment in that case.
“Mr. May: That is correct.” [Italics ours.]
It will be noted that the admission goes not merely to the omission of reference to a lien in the judgment, but to a waiver of any lien, which would, of course, include a judgment lien.
Appellants say that when the petition was drawn in the action on the note they were under the impression that they were entitled to a “vendor’s lien” and that they agreed to omit from the judgment any reference to a “vendor’s lien” because they concluded, and rightly so, that in the absence of contract for such a lien vendor’s liens are not recognized in this state. (Felzien v. Wieck, 118 Kan. 194, 234 Pac. 944; Bank v. Randall, 98 Kan. 744, 160 Pac. 207.) The fact remains, however, that it was contended in the petition that the debt was for purchase money and that judgment on it would be a lien on “all of the debtor’s real estate, including the homestead.” Appellants cite Greeno v. Barnard, 18 Kan. 518, and DeBolt v. Sharp, supra, in support of the proposition that it would have been erroneous to insert in the judgment a declaration that the debt is a lien on the real estate and order the same sold to satisfy the debt. The cases are good upon the point, but do not reach the issue here, which is whether plaintiffs effectually waived their right to proceed against the homestead. Under the authority of Greeno v. Barnard, supra, and many other cases (Tyler v. Johnson, 47 Kan. 410, 28 Pac. 198; Manufacturing Co. v. Haughton, 97 Kan. 528, 155 Pac. 1078, Bank v. Pickering, 111 Kan. 132, 205 Pac. 1110 and others), a judgment on a debt for purchase money would be a lien — at least as between the original parties — on all the real estate of the judgment debtor, including the homestead, but the debtor would have a right to have his personal goods that are subject to the debt exhausted first before the homestead is taken to satisfy the debt. This, however, does not mean that the creditor may not waive the lien. It is the contention of the appellee that such waiver was part of the consideration in his agreement not to contest the action.
Appellants contended that the hearing on June 12 was irregular and without notice to the plaintiffs and that the testimony given by the defendant at that time should not have been considered. Appellants say that the hearing was closed on June 5 and that there was no authority for further hearing in the proceedings in aid of execution. The record discloses, however, that at the conclusion of the hearing on June 5 attorney for the plaintiffs stated that under the law he could levy execution for payment of the purchase price of the homestead, that he thought the proper place for that to come up would be on -confirmation of the sale and that he added, “I will ask the court to continue this until next motion day.” The subsequent correspondence on the matter has been heretofore recited. However, we do not regard the point as of any controlling importance.
Another contention of appellants is that if the judgment taken on the note waived any right to a lien such waiver was without consideration.. This argument is not persuasive. The appellee contends that he abandoned certain claims which he had or defenses he might have made in the action on the note, and that a part at least of the consideration for doing so was plaintiffs’ waiver of a purchase-money lien on the homestead. The judgment itself recites his waiver of any claim against the estate. If waiver of lien was made by plaintiffs, the compromise settlement provides consideration.
The essence of the court’s finding of fact, as against the plaintiffs, was that they had waived any right which they might otherwise have had to levy execution upon the farm. Whether it be called a purchase-money lien, a judgment lien or merely the right of the judgment creditor to proceed against the farm in spite of its homestead status as to other creditors, we find ample evidence to support the court’s finding that a purchase-money lien had been waived and that the debtor was entitled to homestead exemption.
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The opinion of the court was delivered by
D-awson, C. J.:
This was an action for damages for injuries plaintiff sustained by coming in contact with a whirling universal joint which was part of a “take-off” shaft for delivering power from a farm tractor to a small harvester-thresher familiarly known as a “combine.”
The take-off shaft was attached to the tractor machinery for the reception of its power and was attached to the combine for the delivery of its power. The tractor was hitched to the combine by the common sort of device needless to explain. The take-off shaft was situated a few inches above the hitching device. It was about eight feet long, composed of four pieces of heavy two-inch tubing joined together by three universal joints. The latter were necessary to give the take-off shaft the requisite flexibility to permit its steady delivery of power to operate the mowing and threshing machinery of the combine as the outfit moved around the harvest fields.
Of the three universal joints which were component parts of the take-off shaft the one nearest the combine was so placed that there was no danger of a person coming in contact with it. The one nearest the tractor was guarded by a cover of metal sheeting. The mid- die universal joint was in open and plain view between the tractor and the combine and was not guarded.
Within easy access of the driver’s seat on the tractor were devices for engaging or releasing the power which operated the machinery of the combine. The device on the right-hand side of the driver’s seat was a knob and ratchet contraption which was not working well. It would release the power readily by a slight pressure on the knob, but when released it was quite bothersome to get it to reengage the power.
On the left-hand side of the driver’s seat was a lever which operated by hand or foot and served the same purpose. Because of the defective condition of the right-hand releasing device plaintiff commonly used this left-hand lever to control the operation of the combine machinery.
In 1937 plaintiff and his son-in-law were engaged in farming. Plaintiff owned a tractor and in June of that year he purchased through a local firm of implement dealers a five-foot Allis Chalmers combine and take-off shaft and, thus equipped, he set about the harvesting of his own and his neighbors’ crops of oats and barley.
After a few days’ use of the new combine with its take-off shaft and the tractor motive and operating power, on the evening of July 6, 1937, plaintiff stopped at a corner of a field to discharge the threshed grain carried by the combine into a waiting farm truck. The operating machinery of the combine continued to run. Plaintiff dismounted from the tractor and got on the right-hand side of the outfit. Desiring to stop the running machinery of the combine he stepped close to the second universal joint of the take-off shaft, and reached over it to get hold of the left-hand lever to disengage the power-drive machinery. In so doing his clothing caught in the rapidly whirling universal joint, and he was severely and variously injured.
Plaintiff testified that on July 6 he had been “combining” oats, and—
“It was around sundown when I decided to quit. As I pulled around the corner there was a truck waiting for grain from the combine. In order to elevate the grain out of the bin of the combine you throw the tractor into neutral and just let your power take-off run during the time. You have to get off the tractor and go back and take down the spout on the combine and the elevator runs the grain up the elevator and then back down the same spout. When you elevate the grain into the truck you put the spout into the truck. It is necessary in the operation of the combine to leave the power running while you do this. . . . As I had finished delivering the grain into the truck, I went to the tractor, stepped forward a little, reached on (for) the clutch. . . . and some how or other my overalls caught someplace, which caught I suppose before I got far enough to reach the clutch. I did not get it out of gear and that is really the last I remember until they were helping me up off the ground. The last thing I remember was when I felt something grab on my overalls and it was all over before I had another thought. The next thing I knew I was lying on the ground trying to get up. Mr. Peck, the farmer I was combining for . . . grabbed me and helped me up. . . . my overalls were entirely gone . . . blood running all down both legs. I was hurting' all over. ... As I went to turn around I stepped down on this foot and that was the first I knew my leg was broken and my ankle went in the ground.”
On cross-examination he testified:
“In getting off the tractor I stepped from the platform off to the right over the power take-off. I stepped clear over the power take-off to the ground. The platform is just behind the center of this tractor and I stepped clear over to the right-hand side. The power take-off is directly in the center of the back axle. ... I stepped over the shaft and walked back to the harvester while the motor was in motion and had to open up the bin. After I lowered the grain into the wagon I started around to the tractor on the right-hand side and got up just back of the tractor. I reached through and threw up this little latch. I did not get my head under the seat and could reach the latch without putting my head under the seat. I do not know how long my arm is without a rule. I reached around with my right hand and the tractor at the time was facing west.
[Counsel for defendant]: “Q. You mean you were standing on the right-hand side? A. Right-hand side.
“Q. And reached clear across the tool box? A. I put my left hand on the tool box, reached with my right hand with my head and shoulders just partly under, done it before and since then.
“Q. Where is that tool box located with reference to the seat? A. It comes back just about even with the back end of the left fender on the inside of the left fender.
“Q. You had to get your right shoulder and arm under the seat? A. Probably come close to the seat, but it’s very convenient to get to it.”
Plaintiff’s petition stated all the pertinent facts. Defendant’s answer contained a general denial, admitted that it manufactured the combine' and the take-off shaft, and made several other minor admissions of fact — that its machinery was handled by local dealers, and that one of its local dealers had sold the combine according to its dealer’s written contract, ,and—
“That the plaintiff was a farmer and [defendant] alleges that he was fully informed as to mechanism and operation of the combine in question and was fully conscious of and cognizant of all dangers in connection with the operation of the same and any dangers incident to universal joints and take-off shafts. . . . That if said universal joints were dangerous, the danger was obvious to the plaintiff or to any reasonably prudent person.”.
Defendant also alleged that plaintiff was guilty of contributory negligence particularized thus:
“ (a) In failing to make use of levers which would disconnect the drive shaft on which the universal joint was located. '
“(b) In attempting to reach across the moving shaft to reach a lever or clutch when he could have gone around to the other side or gotten up on the seat and reached it without danger to himself.
“(c) In reaching across the moving or revolving shaft when he knew, or by the exercise of ordinary care should have known, there were universal joints on the same.
“(d) In not shutting off the motor before disengaging gears that revolve the shaft in question.
“(e) In not disengaging the gears which drive the revolving shaft before he got down off the tractor.”
The cause was tried before a jury which returned a general verdict in favor of plaintiff and answered special questions, viz.:
“1. If you find in favor of the plaintiff, state what act or acts of negligence the defendant was guilty of. A. No protector for 2d universal joint back of tractor.
“2. At, the time of the accident could plaintiff have shut off the power or disengaged the clutch from the left side of the tractor or seat without coming into contact with the revolving second universal joint? A. Yes.
“3. At the'time of the .accident, could plaintiff have walked around front of tractor and disengaged the clutch from the left-hand side of seat and power shaft without coming into, contact with the second universal joint? A. Yes.
“4. Could the power shaft to the harvester combine have been disengaged by the use of the knob or lever on the right-hand side without coming in contact with the second universal joint? A. Yes.”
The usual post-trial motions were presented and disposed of. Judgment on the general verdict was entered for plaintiff. Defendant appeals, urging various errors, which so far as necessary will be noticed as we proceed.
'■The combine and take-off shaft were manufactured by defendant and were sold to plaintiff by its local dealer. The specific terms of the contract of purchase and sale were excluded from the jury’s consideration on a technical point of procedure. The evidence showed that at the time of the sale, or at the time of the accident, no device had been contrived or invented to serve as a shield around the middle universal joint so as to protect persons working about the outfit from coming in contact with it.
Under the jury’s special finding No. 1, the omission of the defendant manufacturer to equip the take-off shaft with such a device was negligence — the one act of negligence of which the defendant was guilty.
Counsel for plaintiff vigorously oppose the application of the familiar rule of law which, simply stated, is that when a plaintiff sues a defendant for damages on as many pleaded grounds of negligence as the facts may seem to warrant, and the jury is asked to state what negligent act or acts defendant is guilty of, the special finding or findings of the jury in response to that question is in effect an acquittal of defendant of any and all other charges of negligence pleaded in plaintiff’s petition. Thus in Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590, the action was for damages for injuries caused by various alleged acts of negligence. The jury returned a general verdict for plaintiff and made a special finding of the particular negligent act of which they found the defendant guilty — which happened to be an untenable one under the circumstances. The trial court set aside the general verdict and gave judgment for defendant. On appeal that ruling was affirmed. In the opinion of this court by the late Chief Justice Johnston it was said:
“It appears to be conceded that as the case stands the defendant cannot be held liable because of the [latent] defect in the flue or cross-bar. It is contended, however, that as other grounds of negligence were alleged by the plaintiff and a general verdict was returned in his favor we should presume that these were established and furnish a basis for the verdict. The contrary of this contention is the rule. Such a finding in effect acquits the defendant of every charge of negligence stated in the petition or mentioned in the evidence, except the one specifically designated in the finding. (Sugar Co. v. Riley, 50 Kan. 401, 31 Pac, 1090, 34 Am. St. Rep. 123; Hayden v. Railway Co., 87 Kan. 438, 124 Pac. 165; Tecza v. Sulzberger & Sons Co., 92 Kan. 97, 140 Pac. 105; Adams v. Railway Co., 93 Kan. 475, 144 Pac. 999.)” (p. 706.)
In Brim v. Atchison, T. & S. F. Rly. Co., 136 Kan. 159, 12 P. 2d 715, the action was for wrongful death at a railway crossing. Defendant was charged with various acts of negligence. The jury found that the defendant’s negligence was failure to maintain the crossing as required by statute. On appeal this court said:
“It will be observed that the negligence found by the jury lay in defendant’s failure to conform to the statutory requirements in reference to railway cross ings over township roads. This specific finding of negligence exonerated defendant from any and all other charges of negligence pleaded against it.” (Citing Roberts v. Railway Co*., supra.) (p. 162.)
In Roberts v. St. Louis & S. F. Rly. Co., 136 Kan. 749, 759, 18 P. 2d 167, it was said:
“So the court has consistently and repeatedly held a specific finding of negligence is in effect a finding negativing existence of any other form of negligence, and a declaration by the jury that the general verdict is not based on any other form of negligence.”
Other recent cases reaffirming the rule were Bass v. St. Louis-S. F. Rly. Co., 143 Kan. 740, 744, 57 P. 2d 467; Blackburn v. Security Benefit Ass’n, 149 Kan. 89, 98, 86 P. 2d 536; Torpey v. Kansas City Public Ser. Co., 149 Kan. 735, 738, 89 P. 2d 899.
Is the jury’s finding of negligence a sufficient basis to support a judgment against defendant for damages. In 1937, so far as shown by the evidence, no device to enclose the middle universal joint had been devised or shown to be practical. Plaintiff’s evidence did tend to show that after the accident he and his son-in-law did construct some sort of “bonnet” of sheet iron to cover the middle joint and yet permitted the take-off shaft to deliver its power as the outfit moved about the field. But that fact was insufficient to prove that defendant had been negligent in failing to equip the take-off shaft with such a device. In our time many sorts of machinery are used on farms, and while our farmers of necessity have to be self-taught mechanics to operate them, it is a novel idea that the manufacturers of such machinery can be held liable for the injuries farmers and farm workers sustain in their operation. It is a matter of common knowledge that injuries frequently occur in the operation of mowers, binders, threshers, tractors, corn shellers, hay loaders, and many sorts of geared tools. Are the manufacturers of such implements to be held liable for the hurts and bruises sustained by the users of these implements? Not many years ago, the automobile was started by a hand crank which often evinced a temperamental habit of “kicking” which resulted in a broken wrist of the operator. In time a safe device for starting automobiles was invented, but it could hardly be said that the early auto-manufacturer was culpably negligent in equipping his vehicles with hand cranks. Plaintiff alleged that he was unfamiliar with such an apparatus as a universal joint. But it was shown — indeed, by his own testimony — that he was a farmer of many years’ experience; he had owned and operated sev eral tractors; he had owned and commercially operated a threshing outfit for a number of years and he did whatever needed to be done around the separator and the engine. All these machines had exposed cogwheels, chains, belts, moving and driving shafts. It seems clear that a farmer of such varied and extensive experience must be accredited with sufficient intelligence to know that a whirling shaft with an exposed universal joint was dangerous and to be avoided by the exercise of the simplest elements of prudence. In Hertel v. Safety Folding Bed Co., 149 Mich. 223, 112 N. W. 712, the action was by an employee who was injured by coming in contact with a revolving shaft which delivered power from an engine to a saw used for cutting boards to be made into packing crates. The supreme court of Michigan reversed a judgment in his favor, holding that defendant was entitled to an instructed verdict. In the opinion it was said:
“He [plaintiff] was put in charge of the saw and did this work for at least two weeks before his injury. He was a young man of ordinary intelligence, almost 18 years old. From his acquaintance with this revolving shaft and his experience in going over and under it frequently when he worked as a helper, he must be held to have known the dangers incident to coming in contact with it. He says he knew that it was always in motion, and that he avoided -touching it. The question of negligence on account of not giving warning as to dangers from the saw itself is not in the case. From the experience of the plaintiff, above related, while working as a helper and operator, he was informed of all the apparent risks of his surroundings.” (p. 226.)
In Qoulding v. Eastern Bridge & Structural Co., 210 Mass. 52, 96 N. E. 71, plaintiff was injured by coming in contact with a revolving shaft while engaged in oiling some machinery. He testified:
“When I got on my knees . . . and as I was turning around to reach to put my hand on the plank, side of the belt ... I just turned around on my right hip, and was going to put my foot down below, when I felt something pull, from the shafting; it was pulling right here (indicating the location of the right-hand pocket of overalls). I don’t remember what happened after that.” (p. 53.)
The trial court directed a verdict for defendant. On appeal the judgment was affirmed. The supreme judicial court said:
“This is a harsh case, but we are unable to distinguish it in principle from the numerous ones already decided in this commonwealth concerning injuries to employees caused by revolving shafting. The danger that the plaintiff’s person or clothing or the waste in his overalls pocket might come in contact with the open and visible shaft, while he was getting down from the plank walk near by, was an obvious one, . . . the danger so apparent to one of his age [18% years old], capacity, and experience that in the exercise of reasonable care he must be presumed to know and appreciate it.” (pp. 53, 54.)
Among the cases cited by appellee, all of which we have examined, is that of Karsteadt v. Phillip Gross H. & S. Co., 179 Wis. 110, 190 N. W. 844, in which a judgment was affirmed against the seller of an electric washing machine, where the plaintiff had been injured when the sleeve of her dress caught in the unguarded cogwheels of the wringer and caused her to be drawn into the mechanism. If that decision was sound (and that seems a matter of fair debate) it may be distinguished from the instant case oh two grounds. In the Karsteadt case it was held that the seller was negligent in failing to warn the plaintiff as to the dangers involved in operating the machine with the cogs of the wringer uncovered and unguarded. The opinion seems to show that a guard for the cogs had actually been devised. In the instant case the jury exonerated the defendant of any negligence in failing to warn. In the Karsteadt case, also, it would seem that plaintiff was attempting to operate the machine in the usual and customary manner when she was hurt. In the instant case plaintiff was attempting to reach the left-hand lever in a most unusual and awkward manner to save himself the very slight effort of remounting the tractor or stepping around to its left-hand side where the lever he'desired to use would be easily and safely accessible. The same distinctions are obvious between the case at bar and another washing machine wringer accident case involved in Altorfer Bros. Co. v. Green, 236 Ala. 427, 183 So. 415.
As a general rule, a manufacturer or seller is not liable in negligence to one with whom he has had no contractual relation unless the article manufactured and sold is one which was inherently or imminently dangerous. See the multitude of cases so holding in the following annotations: 17 A. L. R. 672, 674; 39 A. L. R. 992; 63 A. L. R. 340; 88 A. L. R. 527; 105 A. L. R. 1502; 111 A. L. R. 1240; and 42 A. L. R. 1243.
The two leading cases upon the liability of manufacturers for defects which made the products dangerous are MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 170; and Huset v. J. I. Case Threshing Mach. Co., 120 Fed. 865.
In the Buick Motor Co. case, supra, Mr. Justice Cardozo wrote the opinion of the majority of the court holding the defendant manufacturer liable for injury caused by a defective automobile wheel, which defendant could have discovered by proper inspection. The difference between the Buick Motor Co. case and the case at bar is, of course, that in that case the plaintiff did not know of the danger of the defective wheel.
In Huset v. J. I. Case Threshing Mach. Co., supra, it was alleged that the manufacturer had knowingly covered up a defect in the machine and plaintiff was injured thereby. Judge Sanborn carefully limits his holding to such a case, thereby differing from the Buick Motor Co. case, supra. Of course, the plaintiff in the Huset case did not have a chance to observe the defect or danger in the machine as plaintiff did in the instant case.
The rule of the Buick Motor Co. case, supra, has been adopted by the American Law Institute -in the restatement of the law of torts, but it will be noted that the rule has been carefully limited to exclude liability to one who knows of the defect or danger or is able to observe it. (See Restatement, Torts, sec. 388, also comment f, p. 1043, and comment i, p. 1047.)
The general rule as to a manufacturer’s liability in negligence is stated in 24 R. C. L. 507, sec. 800, et seq. On page 510, sec. 803, the rule applicable to this case is stated:
“The ground of liability is the seller’s superior knowledge of the dangerous characteristics of the article sold; and where it appears that the person injured was as fully cognizant of the peril as was the defendant seller or manufacturer there can be no recovery.”
In many of the following cases it will be noted that the danger or defect was not as apparent to plaintiff as it was in the case at bar.
In Berger v. Standard Oil Co., 126 Ky. 155, 103 S. W. 245, 11 L. R. A., n. s., 238, defective lubricating oil had been sold to plaintiff’s employer. The defect in the oil could have been discovered by plaintiff if he had inspected the oil. Plaintiff used the oil in an engine, and a glass tube exploded, putting out plaintiff’s eye. It was decided that plaintiff could not recover.
The case of Birdsinger v. McCormick Harvesting Mach. Co., 183 N. Y. 487, 76 N. E. 611, 3 L. R. A., n. s., 1047, involved an accident of somewhat the same type as the one at bar. Plaintiff in that case purchased a corn-husking machine on which there were rollers sticking out into which the corn was to be thrust. After plaintiff had used the machine a month he attempted to clean the rollers and they started up suddenly, due to a broken part in the machine. Plaintiff’s hand was mangled. The reasoning of the court is not especially applicable to the case at bar, since in that case the suit was brought on the theory of warranty and the court held the warranty did not go to recompensing plaintiff for personal injuries. The L. R. A. case note, however, is pertinent and helpful.
In Gibson v. Torbert, 115 la. 163, 88 N. W. 443, 56 L. R. A: 98, defendant sold phosphorus to plaintiff at plaintiff’s request without warning him of its dangerous qualities. Held, no recovery, since phosphorus was a well-known article.
In Bragdon v. Perkins-Oampbell Co., 87 Fed. 109, 66 L. R. A. 924, defendant had sold a side saddle to the husband of plaintiff. Plaintiff alleged that the side saddle was “unsafe, unsound and weak,” and that she had suffered personal injury because of the saddle. No recovery was allowed.
In White v. Oakes, 88 Me. 367, 34 Atl. 175, 32 L. R. A. 592, the defendant was a dealer and not a manufacturer. He had sold a folding bed which turned out to be dangerous, and one who slept in the bed was severely injured. Held, no recovery, since plaintiff had as good a chance to discover defect as defendant.
In O’Neill v. James, 138 Mich. 567, 101 N. W. 828, an overcharged bottle of champagne cider exploded, injuring a bartender. Plaintiff knew the bottle was charged with gas and no recovery was allowed.
There seem to be a number of cases in Massachusetts involving shafts and revolving cogwheels as mentioned in Goulding v. Eastern Bridge & Structural Co., supra. While tiróse cited are master and servant cases, they do show that revolving shafts are considered patent dangers as to which no warning is necessary. The cases referred to are: Ford v. Mount Tom Sulphite Pulp Co., 172 Mass. 544, 52 N. E. 1065 (opinion by Holmes, J.); McKenna v. Gould, Wire Cord Co., 197 Mass. 406, 83 N. E. 1113; Be Angelo v. Boston Elevated Railway, 209 Mass. 58, 95 N. E. 102.
In Crandall v. Stop & Shop, Inc., 288 111. App. 543, 6 N. E. 2d 685, plaintiff had purchased from defendant a spring-clamp contrivance for opening fruit jars. When plaintiff sought to use the device the spring clamp flew from the jar and struck her in the eye. The trial court gave her damages, but the court of appeals in a convincing opinion supported by apt and instructive citations reversed the judgment, holding that the “fact that an innocent article might under some extraordinary circumstances injure a person does not render article itself inherently and imminently dangerous so as to make seller liable.”
Passing to the matter of the instructions given and refused, defendant is aggrieved by the trial court’s refusal to give the jury certain requested instructions pertinent to the issues, one of which was that where there is a safe and usual way of doing some act it is the plaintiff’s duty as a reasonably careful and prudent person to pursue that course rather than risk the danger of doing it a more hazardous way. Some such instruction should have been given. {Carrier v. Railway Co., 61 Kan. 447, 59 Pac. 1075, and citations; Railway Co. v. Rudolph, 78 Kan. 695, 99 Pac. 224, and citations; Jones v. A., T. & 8, F. Rly. Co., 148 Kan. 686, 694-695, 85 P. 2d 15.) However, it was not a matter of dispute that there was a perfectly safe way to reach the lever which disengaged the power. Plaintiff could have mounted the tractor or stepped around it on the ground and thus reached the lever in perfect safety. Moreover, it cannot be denied that the method plaintiff did use to reach the left-hand lever was unusual — by leaning over the whirling takeoff shaft while standing on the ground on the right-hand side of the outfit. Moreover, the jury’s special findings, No. 2 and No. 3, clearly establish this matter; and those findings were in complete accord with the testimony and the evidential circumstances. Special finding No. 4 also established the fact that the power machinery could have been disengaged by a slight pressure on the right-hand knob on the tractor, and the fact that plaintiff preferred not to use it because of difficulty in making it reengage the machinery is no reason for subjecting this defendant to damages for his unfortunate and distressing injuries.
Other questions are argued in the briefs of counsel, but what we have said above impels this court to hold that the judgment cannot stand. It is therefore reversed with instructions to enter judgment for defendant. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for damages. The trial court sustained defendant’s motion for judgment non obstante veredicto and plaintiff appeals.
In her petition plaintiff alleged that she entered defendant’s place of business carrying a shopping bag containing articles purchased elsewhere, and when she started to leave an employee of defendant assaulted her, grabbed her shopping bag and scattered its contents on the floor, but finding nothing which had been taken from the defendant’s store, ordered plaintiff out of the store; that the employee who assaulted plaintiff was possessed of such mentality as to make him vicious and wholly unfit to treat customers with respect and care, of which defendant had, or by the exercise of ordinary care and prudence on its part, would have had knowledge, etc. We need not note allegations of claimed injuries. The answer of defendant contained certain admissions not now material and denied all allegations not admitted. As result of a trial, the jury returned a general verdict for $350 in favor of the plaintiff and answered special questions as follows:
“Q. 1: (Answer not material.)
“Q. 2: (Answer not material.)
“Q. 3: If you find a verdict in favor of the plaintiff, state which employee of the defendant it was that assaulted plaintiff. A. Danny.
“Q. 4: If you find a verdict in favor of the plaintiff, state whether the employee was acting within the scope of his employment at such time and place. A. Yes.
“Q. 5: On and prior to August 25, 1937, was it one of the regulations of the defendant that employees were not to engage in any controversy with a customer, but should such a circumstance arise, it was the employee’s duty to call the manager? A. Yes.
“Q. 6: If you render a verdict in favor of the plaintiff, state upon what negligent conduct or acts of the defendant you base your verdict. A. Ill treatment by Danny.
“Q. 7: If you return a verdict in favor of plaintiff, state how much you allow her (a) for actual damages; (6) for punitive damages. A. (a) Nothing; (b) $350.”
In due time the plaintiff filed her motion for judgment on the "special verdicts returned by the jury” and her motion for a new trial. Defendant filed its motion for judgment in its favor “on the special findings of the jury, notwithstanding the general verdict.”
The trial court denied plaintiff’s motions and sustained defendant’s motion, and plaintiff appeals.
The record presented by the appellant consists solely of the pleadings, the general verdict, the special questions and answers, and the post-trial motions and the journal entry showing the ruling of the trial court thereon. On account of the state of the record, appellee challenges the right of the appellant to be heard. Certain contentions may be determined by the record presented and will be considered. We must assume that the jury was properly and fully instructed and that the evidence sustained the answers to the special questions. Indeed, the motions for judgment non obstante veredicto are concessions to that effect. (See Witt v. Roper, 149 Kan. 184, 187, 86 P. 2d 549, and cases cited.)
The general verdict was for $350. In its answers to the special questions, the jury said it allowed plaintiff nothing for actual damages and that it allowed her $350 for punitive damages. The result is that the general verdict was for punitive damages and nothing more.
This court had a very similar state of facts before it in Shore v. Shore, 111 Kan. 101, 205 Pac. 1027, where it was said that punitive damages may not be recovered unless substantial actual damages have been sustained, and where it was held that—
“Punitive damages are never more than an incident to a cause of action for actual damages, nominal damages will not sustain a verdict for punitive damages, and punitive damages, when allowed, are allowed only in addition to recovered substantial actual damages.
“The fact that the defendant in an action for damages for assault and battery was actuated by malice in striking the plaintiff, will not sustain a verdict for punitive damages, when no actual damages were awarded.” (Syl. Iff 2, 3.)
(See, also, Adams v. City of Salina, 58 Kan. 246, 48 Pac. 918; Railroad Co. v. Little, 66 Kan. 378, 71 Pac. 820; Telegraph Co. v. Lawson, 66 Kan. 660, 72 Pac. 283; Ramey v. Telegraph Co., 94 Kan. 196, 146 Pac. 421; and to the same effect see 17 C. J. 974 [Damages, § 270], 15 Am. Jur. 706 [Damages, § 270] and authorities cited in each.)
We need not comment on cases called to our attention holding that it is proper for the court to instruct the jury that exemplary or punitive damages may be awarded, nor to cases where judgment for such damages have been upheld. None of these cases disputes the rule that actual damages constitute the basis of the cause of action and that exemplary damages are in addition to and not a substitute for the actual damages.
Under the answer returned to the seventh question, the general verdict had no support in law and the plaintiff was not entitled to judgment.
Appellant contends that even if that be so, she was entitled to a new trial as a matter of right. At the oral argument considerable reliance was placed on what was said in Shore v. Shore, supra, where no motion for a new trial was filed. In that case an effort was made to have certain special findings set aside, and the entire record seems to have been before the court. Here we have only the special findings. The gist of the jury’s special findings was that she had been assaulted, but that she had sustained no actual damages. In the absence of a transcript of the testimony, how can this court say either that the undisputed evidence shows she did sustain actual damage, or that it was disputed whether she did or did not, or that it was undisputed she did not, or that the trial court erred? She may have been entitled possibly to nominal damages, but that would not constitute a basis for exemplary damages (Shaffer v. Austin, 68 Kan. 234, 238, 74 Pac. 1118; Shore v. Shore, supra). The answers returned by the jury to the special questions were consistent with each other, but by reason of the allowance of exemplary or punitive damages only, and the refusal to allow actual damages, they were inconsistent with the general verdict. If appellant’s contention as made here is good, each time a general verdict was for plaintiff and an answer to a special question nullified it, there would be a new trial. To arrive at any such conclusion would be to nullify G. S. 1935, 60-2918, which provides that where the special findings are inconsistent with the general verdict the former control the latter and the trial court must give judgment accordingly. It has not been made to appear the trial court erred in denying plaintiff’s motion for a new trial.
From what has been said, it appears that the answer to the special question that appellant sustained no actual damages was inconsistent with the general verdict, which was based on exemplary or punitive damages, and the trial court properly sustained appellee’s motion for judgment non obstante veredicto.
We conclude there was no error in the trial court’s various rulings, and its judgment is affirmed. | [
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The opinion of the court was delivered by
Hoch, J.:
We are asked to construe a will. Plaintiffs contend that the widow received only a life estate subject to conversion into a fee simple as to one-half of the property with remainder to the three children of the testator in the event of her remarriage. The widow, defendant, contends that she received a fee-simple title, subject to being divested entirely as to one-half upon her remarriage. The defendant, who had not remarried, prevailed, and plaintiffs appeal.
Thomas R. Jenkins, of Stafford county, died testate on June 30, 1927. The provisions of his will here in controversy read as follows:
“To my wife, I give and bequeath all my property both personal and real, as long as she remains my widow, should she marry again, then in this event, she is to receive only one-half of the property both personal and real, the balance to be divided equally between my children and it is my wish that they share and share alike. (There follows description of real estate of which the testator was then possessed.)
“It is my wish that all my just debts be paid immediately after my death, including doctor bills and funeral expenses, the residue to go to my wife Maude Jenkins as above mentioned. -. And I do devise and bequeath all the rest and residue of my estate, both real, personal and mixed, to-,” etc.
(The blank lines are upon the printed form and were not used by the testator.)
After the widow had been in possession of the property about twelve years two of the children brought action for appointment of a receiver, alleging that their mother was wasting the estate, had permitted the taxes for three years to go unpaid, and asking for construction of the will. The widow and a third child, a minor, were made defendants. The holder of a mortgage was also made a defendant, but he is not involved in the present issue. The answer of the widow alleged that she was the owner in fee simple and in possession of all of the testator’s property and by cross petition she also asked the court to construe the will and prayed that she be declared the owner in fee simple, for costs, etc. The trial court held that the will gave the widow a determinable fee simple which would be terminated as to one-half of the property in the event of her remarriage and that the three children had no present estate in the property. Motion for a new trial was made and overruled, from which order as well as from the judgment, the plaintiffs appeal.
Before proceeding to the main question we consider appellants’ contention that the court erred in refusing to receive certain evidence offered by them. This consisted in the main of testimony concerning conversations said to have been had with the testator, and offered for the purpose of showing that he intended to give his wife a life estate and to care for his children upon her death. Also, certain statements by the widow were offered indicating a like understanding. The proffered testimony was offered for the announced purpose of clarifying the “ambiguity” in the will. Appellants say that this court has never passed upon the precise question here presented, that there are two conflicting lines of decisions on the question and that this fact creates an “ambiguity” which entitles them to use parol evidence to show the testator’s intention. The argument is not persuasive. The fact that different courts have given different effect to like language does not create an ambiguity in the instrument. Adoption of the suggested test of “ambiguity” would leave little protection in the rule against modification of the terms of a written instrument by parol testimony. Moreover, even if the contention were valid, it would be unavailing here since the record does not show that the excluded evidence was proffered on the motion for new trial. (G. S. 1935, 60-3004; Saathoff v. State Highway Commission, 146 Kan. 465, 466, 72 P. 2d 74, and other cases cited in Hatcher’s Digest, Appeal and Error, § 372.)
Did the trial court err in holding that the will gave the widow a fee title defeasible as to one-half in the event of her remarriage? A distinction between the common-law and statutory rules may first be noted. Under the former, the use of words of inheritance — such as the phrase “to B and his heirs” — was necessary, in deeds at least, in order to convey the fee. In the absence of such words the grantee got only a life estate. This was also true as to wills unless it otherwise clearly appeared that a fee simple was intended. (2 Simes, Law of Future Interests, 30, 37, §§ 316, 319; 1 Tiffany, Real Property, 3d ed., 39, 43, §§ 28, 31.) The common-law rule, however, has been abrogated in this state (G. S. 1935, 67-202; 1939 Supp. 59-614; Twist v. Twist, 91 Kan. 803, 139 Pac. 431; Jameson v. Best, 124 Kan. 633, 261 Pac. 582) and in most states (1 Tiffany, Real Property, 3d ed., pp. 42, 46; Restatement, Property, § 39, and note). The statutory rule is that in cases of both deeds and wills the pre? sumption is that a fee simple rather than a life estate has been granted or devised. It may be conceded that the decisions of various jurisdictions cannot be fully harmonized as to the language necessary to rebut the presumption. It is generally held, however, that where there is no gift over — no remaindermen named — very clear and definite language is required to show that only a life estate was intended. (2 Simes, Law of Future Interests, p. 39.) It is said in 40 Cyc. 1624 that “the absence of a limitation over may indicate that the first taker is to have an absolute estate, . . . but not where a life estate is clearly intended.” Also to like effect see 28 R. C. L. 238. In the instant case there is no gift over of any sort if the widow does not remarry, and only so as to one-half in ease she does remarry. And we do not find in the will any words “clearly indicating” that only a life estate was intended. This view is also fortified to some extent by the fact that in the later quoted paragraph of the will this language occurs, “it is my wish that my just debts be paid — the residue to go to my wife, Maude Jenkins, as above mentioned.” The fact that no reference was there made to remaindermen would not alone be conclusive on the point, since the words “as above mentioned” were added, but the paragraph at least provides no support for appellants’ view.
The narrowed question remains as to whether the language here “as long as she remains my widow,” following words which would otherwise convey an absolute fee, converts the fee into a life estate during widowhood, with reversion to the testator’s estate if she dies unmarried. We must agree with appellants that some courts have held that it does. Such authorities are in most cases greatly weakened, however, by later decisions, and our examination of the cases under the statutory rule discloses a marked weight of authority in support of the contrary view. In substance the general rule, stated in Restatement, Property, § 46, is that a fee simple, subject to an executory interest, results when words which would create a fee are followed with a proviso that the estate so created is to be divested upon the occurrence of a stated event, in favor of persons other than the conveyor or his successors in interest; and that under the modern statutes the rule as to creation of a fee title is the same whether the fee be absolute or subject to an executory interest. (Anderson v. Anderson, 119 Neb. 381, 229 N. W. 124; Cummings v. Lohr, 246 Ill. 577, 92 N. E. 970; Redding v. Rice, 171 Pa. St. 301, 33 Atl. 330; Hults v. Holzbach, 233 Pa. St. 367, 82 Atl. 469; Will of Baird, 171 Wis. 215, 177 N. W. 23; Vaughn v. Converse, 184 Iowa 891, 169 N. W. 144; Walten v. Jones, 216 Ky. 289, 287 S. W. 710; and see statement of annotator in annotation 122 A. L. R., at page 75, section VIII, subsection b.)
The cases which may be said to support appellants’ view are in most part rather old ones. For example, Nebraska and Pennsylvania cases prior to cases from those states cited swpra. This may also be said concerning some of the cases cited by appellants: Giles v. Little, 104 U. S. 291, was overruled in Roberts v. Lewis, 153 U. S. 367, and see Anderson v. Anderson, supra. In Morgan et al. v. Christian et al., 142 Ky. 14, 135 S. W. 982, we are not told what the conveyancing statutes were. Also see the later Kentucky case of Walten v. Jones, supra, where the limitation was not greatly different. Also, we are not able to fully appraise the force of the decisions in some of the other cases cited by appellants because the conveyancing statutes then in effect are not given.
We find no decision of this court squarely in point. But our decisions clearly tend to support a defeasible fee in the widow. In the case of In re Brown, 119 Kan. 402, 239 Pac. 747, the words “as long as life doth last” was held to be equivalent to “forever” and the devisee was given a fee title. The case emphasized the rule that in the interpretation of a will the construction which will prevent a partial intestacy is preferred if the language used will permit it. That rule has some bearing on the instant case. To hold that the widow received only a life estate, would leave part of the testator’s estate undisposed of by the will in case she dies without remarrying. Also, see Jameson v. Best, supra, where the will was held to vest full title in the devisees even though the proviso was “to have and to hold the same, for and during their natural lives.”
Under the rules of construction above indicated the words “to my wife I give and bequeath all my property both real and personal” are words conveying a fee; the proviso “as long as she remains my widow” makes the fee defeasible, and the provision that the three children are to get one-half the property in case the widow remarries is an executory devise; with the result that the widow holds a fee title defeasible as to one-half upon the event of her remarriage, and the children have no present interest in the testator’s estate.
Appellants say that they were entitled to allowance of attorneys’ fees out of the estate. The record, however, discloses nothing concerning the question and appellants advance no theory in support of the contention other than that they had a meritorious case, and no authorities are cited.
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The opinion of the court was delivered by
Allen, J.:
This is an original proceeding in quo warranto to oust- and enjoin the defendant Arthur Henry from exercising and enjoying the office of patrolman in the city of Coffeyville, and praying that plaintiff be adjudged entitled to such office, with its emoluments and franchises.
The plaintiff alleges that he is an ex-soldier of the World War; that he served in the United States army in overseas service; that he received an honorable discharge from the army in 1919. It was alleged that on or about May 1, 1939, there was a vacancy in the office of patrolman in the city of Coffeyville. Plaintiff alleged facts which tended to show that under the terms and provisions of chapter 144 of the Laws of 1937, and under the soldiers’ preference law, G. S. 1935, 73-201, plaintiff was prima facie entitled to the appointment to fill such vacancy. It was further alleged that June 1, 1939, the defendant, Arthur Henry, subscribed to the oath of office as patrolman, and ever since has acted in that capacity; that no record was ever made showing that the city commission ever appointed the defendant, Arthur Henry, to the position of patrolman.
The defendants in their answer assert that chapter 144 of the Laws of 1937, being the civil-service act under which plaintiff predicates his cause of action, violates the constitution of the state of Kansas and is void.
Section 1 of chapter 144, Laws of 1937, provides:
“Ail cities of the first class having a population of less than 25,000 inhabitants, situated in all counties in the state of Kansas, in which counties there is one city of the first class and not more than three cities of the second class, one of which has a population of more than 10,000, and which city of the first class is operating under the commission form of government, shall appoint by ordinance three civil-service commissioners who shall hold office, one until the first Monday in April in the second year after his appointment, one until the first Monday in April in the third year after his appointment, one until the first Monday in April in the fourth year after his appointment: Provided, however, That not more than two members of said civil-service commission shall be members of the same political party.”
Section 17, article 2 of the constitution, provides:
“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.”
The purpose of the constitutional provision has often been pointed out by this court. In Anderson v. Cloud County, 77 Kan. 721, 95 Pac. 583, it was said:
“The inherent vice of special laws is that they create 'preferences and establish irregularities. As an inevitable consequence their enactment leads to improvident and ill-considered legislation.' The members whose particular constituents are not affected by a proposed special law become indifferent to its passage. It is customary, on the plea of legislative courtesy, not to interfere with the local bill of another member; and members are elected and reelected on account of their proficiency in procuring for their respective districts special privileges in the way of local or special laws. The time which the legislature would otherwise devote to the consideration of measures of public importance is frittered away in the granting of special favors to private or corporate interests or to local communities. Meanwhile, in place of a symmetrical body of statutory law on subjects of general and common interest to the whole people, we have a wilderness of special provisions whose operation extends no further than the boundaries of the particular school district or township or county to which they were made to apply. For performing the same services the sheriff or register of deeds or probate judge of one county receives an entirely different compensation from that received by the same .officer of another county. The people of one community of the state are governed as to many subjects by law wholly different from those which apply to other localities. Worse still, rights and privileges which should only result from the decree of a court of competent jurisdiction, after a full hearing and notice to all parties in interest, are conferred upon individuals and private corporations by special acts of the legislature without any pretense of investigation as to the merits or of notice to adverse parties.” (p. 730.)
Section 1 of chapter 144, Laws of 1937, specifies that the act applies to (1) all cities of the first class (2) having a population of less than 25,000 inhabitants, (3) situated in counties where there is one city of the first class, and (4) not more than three cities of the second class, and (5) one of which has a population of more than 10,-000, and (6) which city of the first class is operating under the commission form of government.
By a process of inclusion and exclusion, the statute points to the city of Coffeyville, and none other. While the act purports to be' general in nature, it is specific in fact. It was designed to apply to one city, and there is slight probability it will ever have uniform operation throughout the state. New cities, if any, will ever fit the specifications. A classification so framed is illusory. By a multiplication of exclusionary provisions statutes may be formulated, which, though general in form, would in fact be applicable only to some particular city in the state. However desirable a civil-service law might be, based on a reasonable classification and with uniform operation throughout the state, certainly the general welfare would not be promoted by the enactment of a multitude of specific statutes ’ of the same general type, but with endless variations. Other cities in other counties, nay, other cities in some county could, and doubtless would, importune the legislature for a particular law. Thus the-spirit, if not the letter, of the constitution would be violated.
Not only were the evils flowing from special legislation guarded' against by section 17, article 2 of the constitution, but by section 1,' article 12, it was provided that the legislature shall pass no special ’ act conferring corporate powers. This latter section applies to municipal as well as other corporations. (City of Wyandotte v. Wood, 5 Kan. 603.) Furthermore, section 17, article 2, as originally adopted, was at the general election of 1906 amended by the addition of the clause directly putting the burden on the courts to determine whether an act is repugnant to that provision of the constitution.
Clearly this court has a duty to perform, and however delicate the task may be, it is not to be evaded. The question presented is whether a fundamental principle of our basic law so carefully formulated and guarded by our fathers is to be frittered away by acts formulated for the palpable purpose of its evasion. We think not. While it is impossible to say just where the line is to be drawn in all cases, we are clear that chapter 144, Laws of 1937, contravenes the constitution and is void. See State, ex rel., v. Deming, 98 Kan. 420, 158 Pac. 34; Stevens v. McDowell, post, p. 316, 98 P. 2d 123 (this day decided) and cases cited.
Our attention is directed to section 2, article 15 of the' constitution, which provides that the legislature shall not create any office the tenure of which shall be longer than four years. The civil-service law applicable to Coffeyville provides for the appointment of a patrolman for four years; when the term ends the incumbent is at once placed on the eligible list without further examination and the commissioners are required to reappoint such officer. It is argued that these provisions will perpetuate the appointee in office in violation of the constitutional provisions. As we have found the act void under section 17, article 2, it is unnecessary to determine this grave question.
Was the plaintiff entitled to the appointment as patrolman under the soldiers’ preference act? G. S. 1935, 73-201, provides:
“In grateful recognition of the services, sacrifices and suffering of persons who served in the army and navy of the United States in the War of the Rebellion, the Spanish-American war, and the great World War of 1914-T9, and have been honorably discharged therefrom, they shall be preferred for appointments and employed to fill positions in every public department and upon all public works of the state of Kansas, and of the counties, cities and towns of this state, if competent to perform such services; and the person thus preferred shall not be disqualified from holding any position in said service on account of his age or by reason of any physical or mental disability, provided such age or disability does not render him incompetent to perform the duties of the position applied for;.and when any such ex-soldier or sailor shall apply for appointment to any such position, place, or employment, the officer, board or person whose duty it is or may be to appoint a person to fill such place shall, if the applicant be a man of good reputation, and can perform the duties of the position applied for by him, appoint said ex-soldier or sailor to such position, place or employment: Provided, That the provisions of this act shall not be applicable to any persons classed as conscientious objectors.”
This court has been called upon to construe this statute many times. In Dever v. Humphrey, 68 Kan. 759, 75 Pac. 1037, the proceeding was to determine who was entitled to the office of city attorney of Junction City. Dever was a veteran, but the mayor appointed one Humphrey. In deciding the case, the court said:
“The duty of investigating and determining as to the qualifications of applicants for public position is placed upon the appointing power — in this case upon the mayor. He did make inquiry and decided that the plaintiff did not possess equal qualifications for the office with defendant. That decision, which appears honestly to have been made, is not open to review or revision by the courts. The legislature has placed the authority of making appointments mainly in the administrative officers and boards, and vested them with a discretion and judgment to determine who is best qualified to serve the public, and the general rule in such cases is that the courts cannot supervise the exercise of such authority, nor control the discretion and judgment so vested.” (p. 763.)
In State v. Addison, 78 Kan. 172, 96 Pac. 66, it was held as stated in the syllabus:
“The power to appoint carries with- it a presumption that the appointing officer has knowledge of the service to be performed and its requirements; also, the power of deciding the question of the competency of the applicants for the service.
“ ‘Competent’ is necessarily a comparative word, and the degree of competency required of applicants by the appointing power is also necessarily discretionary. The utmost good faith, however, is demanded in determining the qualification of applicants under the ex-soldier’s preference law.” (Syl. ¶¶ 3, 4.)
In the answer of defendants it is stated:
“VIII. The defendant commissioners for a further answer allege that they have considered the application of the said Harry Owens for the position of patrolman and his competency to act in that behalf, and have in good faith concluded and now are of the opinion that he is not competent to hold said position and that they have also considered the application of the said Arthur Henry and his competency to act as patrolman, and have concluded and now are of the opinion that he is competent and well qualified to perform said duties and that it would be for the best interests of the city of Coffeyville and of the police department that said Arthur Henry be appointed to the said vacant position of patrolman, and said defendants allege that it will be for the best interests of the city and for the efficiency and well-being of said department that the said Arthur Henry be appointed to said position.”
It was stipulated by the parties:
“2. That at the time of the appointment neither the mayor nor any of the defendant commissioners knew that said Owens was a soldier of the World War.
“3. That the plaintiff, Harry Owens, is an honorably discharged soldier of the World War and that he is not a conscientious objector.
“4. That the records of the defendant city do not show that said defendant, Arthur Henry, was ever appointed to the police department of said city by the board of commissioners, and that said appointment was made by the mayor of said city and has not been confirmed by said board; that the records of the city further show that Arthur Henry subscribed to the oath of office on June 1, 1939, and ever since said time has been performing all of the duties of a patrolman; that his name appeared on the pay roll as patrolman on June 19, 1939, and said pay roll was approved by all of the commission on said date.”
The petition alleges that the- defendant Arthur Henry “is a police officer of Coffeyville, Kan., wrongfully appointed thereto,” that he subscribed to an oath in writing to perform his duties; that he performs the duties and functions of a patrolman and that his name appears on the pay roll. It is further alleged that notwithstanding defendant Henry performs the duties and functions of a police officer, no resolution appears in the records of the city appointing him as patrolman.
Our statute, G. S. 1935, 60-1602, provides that an action in quo warranto will lie:
“First, when any person shall usurp, intrude into or unlawfully hold or exercise any public office, . .
Under the facts stipulated by the parties, it appears that the defendant was duly appointed to the office of patrolman by the mayor, but has not been confirmed by the board; that he has subscribed to the oath of office and has been performing the duties of his office; that his name appears on the pay roll and that the pay roll was approved by the commission.
To oust the defendant, the statute requires a showing that the defendant has usurped, and that he unlawfully holds, his office. It is not shown that the mayor in making the appointment and the commissioners in approving the pay roll did not act in good faith. It is evident that the only reason the board did not confirm the appointment was because of the doubt as to their right to do so under the civil-service act and the soldiers’ preference law.
Under the soldiers’ preference statute, and under the decisions of this court construing that act, the fact that the plaintiff is an ex-soldier does not compel his appointment. He must also be competent, and the duty of determining whether he is competent rests with the city commission. The answer alleges the commission, after an investigation in good faith, determined the plaintiff is not competent, and that the defendant Henry is competent, and that it is for the best interest of the city and the police department that Henry be appointed. Under the agreed statement of facts the appointment of the defendant appears complete except as to his confirmation by the commission.
The power to make the appointment must rest in some officer or in some official body. When honestly and fairly made, the appointment is not subject to review by the courts. The courts cannot supervise the exercise of such authority, nor control the judgment so vested. No reason appears in this record why the appointment of the defendant should not be approved by the board of commissioners.
The judgment for ouster prayed for in the petition against the defendant Henry is denied, and the action is dismissed. | [
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The opinion of the court was delivered by
Allen, J.:
The defendant was convicted of violating the worthless-check statute (G. S. 1935, 21-554) and appeals.
The defendant was in the beer business in Topeka and carried an account in the Guaranty State. Bank as the “Kingsbury Beverage Company, Frank Bechtelheimer.” On July 5, 1937, a check on this bank, signed by .defendant, payable to the Star Peerless Brewing Company in the sum of $675, was delivered to the agent of the payee in payment of a carload of beer. The record contains the following stipulation: .
“It is admitted by the defendant, Frank-Bechtelheimer, that he signed the check on which this prosecution is based, having been drawn on the Guaranty State Bank of Topeka, Kansas, in the sum of $675. That the check was offered in evidence at the preliminary hearing of this case and the same bore a notation on its face, ‘insufficient funds.’ That since the preliminary hearing of this case, the check has been misplaced or lost. That a true copy of the check is set out in the information.”
There was evidence that defendant did not have on deposit in the Guaranty bank funds with'which to pay such check.
Appellant contends the trial court erred in refusing to permit Elisha Scott to testify for defendant.
Elisha Scott appeared as counsel in the first trial in which the jury failed to agree. At that trial Scott offered to testify in behalf of the defendant. The state objected to such testimony and the objection was sustained. At the second trial Scott again appéared as counsel for defendant and again offered to testify on behalf of his client.' The following colloquy appears in the record:
“(Attorney for appellee): If the court please, this same question was up before. Mr. Scott appeared as counsel for Mr. Bechtelheimer and knew what the testimony would be, and now he wants to go on the witness stand as a witness. With a little time, I think I can cite authorities.
“The Court: I know what the'supreme court has held about it.
“(Attorney for Appellant): That is in civil cases.
“The Court: There is no distinction. The rule is if you appear as an attorney in the case, and also as a witness, you withdraw as an attorney.' The supreme court has laid that down flat, and .there is a very good reason for that rule, as you can see and everybody cari see.,, I.am simply checking it up to you.
“(Attorney for Appellant): I offer to giy'e testimony in this case, not.saying what it is, but what I know happened during that time, and I think that- justice in the-'cáse should permit the court to let me testify, for that decision that our supreme court passed on was in a civil case. I don’t know of any such decision in a criminal case, where a man’s liberty is at stake.
“The Court: I know of no distinction .between civil and criminal cases.- If you are a material witness,, you should have thought of that.
“(Attorney for-Appellant)': I don’t know how material I am. I want to tell what actually-happened to this jury. I may not be material.
“The Court: I think I will hold to the rule. You admit you knew the rule, and you should have thought of it.
“Objection sustained.
“(Attorney for Appellant): Let the record show that I offer to testify, and that is all.”.
In State v. Ryan, 137 Kan. 733, 22 P. 2d 418, the county attorney; testified as to. a statement the defendant made to him. It was ruled as stated in the syllabus:
■“Where it is necessary for the counsel in a case to testify on some, material disputed point that has a material bearing on the guilt or innocence of the defendant in a criminal case or one that involves a serious dispute of fact in a civil case, he should withdraw as counsel in the case.”
The question of the competency of an attorney to testify on behalf of his client has been before this court in a number of cases.
In C. B. U. P. Rld. Co. v. Andrews, 41 Kan. 370, 21 Pac. 276, it was held that an attorney was a competent witness, although his compensation was contingent on the result of the litigation.
In State v. Herbert, 63 Kan. 516, 66 Pac. 235, one Caldwell, an attorney who had represented the defendant at a former trial, was permitted to testify in regard to statements made to him by the defendant. The court held that under the circumstances the communications were not privileged. The question of competency of the witness was not discussed.
For recent expressions of this court on the question, see Earhart v. Tretbar, 148 Kan. 42, 80 P. 2d 4; Protheroe v. Davies, 149 Kan. 720, 89 P. 2d 890.
In 4 Wigmore on Evidence (2d ed.), section 1911, after a review of the authorities, the author states that the courts have declined, almost unanimously, to lay down a rule of prohibition. “The reasons are, probably, because the expected evil is one that would be caused only by an inveterate practice and not by casual instances, and because the strong recommendations of the courts have proved sufficient to prevent the use of such testimony other than in casual, unavoidable, and therefore harmless instances.” (p. 95)
In the trial of this case a former attorney for defendant offered to testify. The court, no doubt under the ruling in the Ryan case, refused to allow him to do so. Out of respect for the profession of which he is a member and of the court of which he is an officer, he should have withdrawn from the case. Under the circumstances we cannot say the court erred in excluding his testimony. The record does not show that the excluded evidence was produced at the hearing of the motion for a new trial as required by 60-3004 of the civil code, and which by 62-1414 is made applicable to motions for new trials in criminal cases. (State v. Crane, 136 Kan. 181, 14 P. 2d 634; State, ex rel., v. Wright, 140 Kan. 679, 38 P. 2d 135.) Moreover, there was no offer to show the nature of the excluded testimony. The witness-lawyer stated that he did not know whether the proffered evidence was material. This court has no authority to reverse the judgment of the trial court because of immaterial errors (G. S. 1935, 62-1718), and as we have no knowledge of the natufe of the excluded testimony, we cannot say it was material.
Error is assigned on the exclusion of a certain partnership agreement between two parties — Tork and Maloney. That agreement was dated June 15, 1937, and stated these parties were to be equal partners in the Kingsbury Beverage Company. The evident purpose was to show that the defendant had no connection with that company on the date the check was issued. The defendant was charged with issuing a check when at the time he had insufficient funds in the bank to cover it. This was the gravamen of the crime denounced by the statute. The testimony of the witnesses Upton, O’Brien and Tork showed the defendant was in apparent charge of the business. The witness Upton testified that' defendant was in the office of the company after the beer had been ordered by Scott and before it was delivered; that defendant was informed the beer had been ordered, and that defendant directed the witness, who was in charge of the office, to deliver the check in payment of the beer when it was unloaded. The partnership agreement was signed by third persons,. and as no connection was shown between the defendant and such parties as to the agreement, there was no error in the exclusion of this paper.
The defendant further contends that no crime was committed under the statute, and therefore the motion to discharge the defendant at the close of the state’s evidence should have been sustained. The point is thus stated in defendant’s brief:
“This clearly shows that the defendant had instructed Margaret Upton never to issue a check unless there were funds on deposit to meet it. From the evidence in the case, it appears that these instructions by the defendant to Margaret Upton were never retracted. On page 5 of appellant’s abstract, the evidence shows that Margaret Upton was the only one who handled the checks and took care of the banking account, but Bechtelheimer never had anything to do with it except sign the cheeks.
“From the above and foregoing, it is apparent that the evidence in this case fails to establish the fact that the defendant willfully issued this check with the knowledge that there were no funds on deposit to meet it, and therefore the court should have discharged the defendant at the conclusion of the state’s evidence.”
On this point we quote from the testimony of Margaret Upton, who was bookkeeper for the Kingsbury Beverage Company:
“Q. Between the time Mr. Scott ordered the load of beer and the time of its delivery and the issuance of this check, did you see Mr. Bechtelheimer? A. Yes.
“Q. Where and when? A. He was in our office.
“Q. After Mr. Scott ordered the beer? A. Yes.
“Q. Did you there enter into a conversation or overhear a conversation between anyone and Mr. Bechtelheimer regarding this load of beer? A. Mr. Bechtelheimer was told that the beer had been ordered.
“Q. Do you recall who told him that? A. To the best of my recollection, I think it was our warehouseman.
“Q. Were you present? Did you hear that? A. Yes.
“Q. What response did Mr. Bechtelheimer make to that? A. Well, he was told we were out of beer and Mr. Scott had gone ahead and ordered a load of beer.
“Q. Did he say anything about paying for it? A. Yes, it was to be paid for. Well, I was to pay for the load of beer when it was unloaded.
“Q. Who told you that? A. Mr. Bechtelheimer.
“Q. Mr. Bechtelheimer told you that there that day? A. Yes.
“Q. Now, the load of beer came in, I believe you testified. Were you there when the beer was unloaded? A. Yes.
“Q. Did you pay for the load of beer? A. Yes.
“Q. How did you pay for it? A. By check.
“Q. Is it the particular check which is set out in this complaint or information, dated July 5, 1937, in the sum of $675? , .A. .Yes.”
And on cross-examination, Scott, the witness, testified: -..
“Q. Well, as a matter of fact, Tork delivered the check, or told: you to deliver the check, to the driver of the truck, didn’t he? A. No.
“Q. Well, who told you? A. I was, told .before the beer came in that it was to be paid for with one of those checks.
“Q. Who told you? A. Mr. Bechtelheimer.”
The bad-check statute was construed in State v. Avery, 111 Kan. 588, 590, 207 Pac. 838. In that case the court stated:
“The worthless check must .be willfully drawn, knowing at the time there are no funds on deposit to meet it. Beyond that, the legislature may, for protection of the public interest, require persons to act at their peril, arid may punish the doing of a forbidden act without regard to the knowledge, intention, motive or moral turpitude of the doer.” '
This construction was followed in State v. Crane, 136 Kan. 181, 14 P. 2d 634.
That the check was drawn willfully — thát is,'intentionally, knowingly and purposely — was admitted in ■the stipulation and proved not only by the testimony of the bookkeeper Upton, but by the testimony of the defendant. It was admitted the check was returned with the bank’s notation “insufficient funds,” and the bookkeeper for the bank testified that the account was. short. As defendant specifically directed the delivery of the check in payment of the beer, a prior direction he may have given that no check was to be issued unless there were sufficient funds in the bank became immaterial. Under the statute an intent to defraud is not an ingredient of the crime. We think the motion to discharge the defendant was properly overruled.
The judgment is affirmed.
Harvey, J., not sitting. | [
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Per Curiam:
Appellee was.denied compensation by the appellant board on the ground that he was not a resident of Kansas at the time he entered the United States army. He was born in Texas; he named Ennis, Texas, as the place of his bona fide residence at the time he entered the army; and that state received credit for his military service during the World War. Under oral testimony adduced in his behalf the district court gave judgment in his favor. The compensation board assigns error, relying on the statute of 1939, chapter 280, and its recent application by this court in Richardson v. Soldiers’ Compensation Board, 150 Kan. 343, 92 P. 2d 114.
It is too clear for cavil that the present appeal is governed by the Richardson case, consequently the judgment of the district court must be reversed and judgment directed for defendant. It is so ordered. | [
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The opinion of the court was delivered by
Hoch, J.:
The plaintiff, a national bank in Kansas City, Mo., seeks here by original proceedings in mandamus, determination of its right to qualify and act as a testamentary trustee of certain funds. Respondents are the probate judge of Douglas county and the executors named in the last will and testament of Elizabeth M. Watkins, deceased. The action is friendly in character and the relief sought is in the nature of a declaratory judgment. The principal question presented is whether the plaintiff is barred from acting as trustee in this state by the provisions of section 131, article 17 of the new probate code (Laws of 1939, ch. 180), which prevents corporations not organized and having their principal place of business in this state from being appointed or acting as a fiduciary in this state except in ancillary proceedings.
Elizabeth M. Watkins, long a citizen and resident of Lawrence, Douglas county, Kansas, died testate on June 1, 1939. Her last will and testament was duly probated on June 5, 1939, and on that date respondents, Dick Williams, Hugh Means and Raymond F. Rice, were duly qualified as executors and letters testamentary were issued to them. Under the terms of the will certain money or its equivalent in securities was bequeathed to the plaintiff, the First National Bank of Kansas City, Mo., as trustee of various trusts established by the will. On June 28, 1939, the plaintiff filed in the probate court its written acceptance of the trust. Plaintiff alleges that at the time of her death Mrs. Watkins had on deposit in its commercial department about $18,000 and that on June 28, 1939, it transferred this deposit to its trust department and allocated it in proper proportion to the various trusts created by the will and thereupon invested the funds so transferred in accordance with the provisions of the will. The probate court having refused to rec ognize .the plaintiff as trustee and the executors having refused to distribute funds to it as provided in the will, this proceeding was brought, and an alternative writ of mandamus issued on January 2, 1940, directing the probate court to recognize the plaintiff as trustee and the executors to make distribution in due course or to appear and show cause why that should not be done. Separate returns and answers were made by the judge of the probate court and by the executors. Demurrer to the returns of respondents and a motion for peremptory writ were filed by the plaintiff. Respondents agree that a proceeding in mandamus, with prayer for a declaratory judgment constitutes a proper remedy. The procedure is well supported by decisions of this court. (G. S. 1935, 60-3127; Kern v. Newton City Commissioners, 147 Kan. 471, 77 P. 2d 954; State, ex rel., v. State Highway Comm., 132 Kan. 327, 295 Pac. 986; Public Service Commission v. Kansas Gas and Electric Co., 121 Kan. 14, 246 Pac. 178.)
Three sections of the new probate code are involved, primarily, in the present issue. The pertinent provisions are as follows:
“Sec. 131. (Article 17) Corporate fiduciaries. No bank or other corporation, unless it is organized under the laws of and has its principal place of business in this state, or is a national bank located in this state, shall be appointed or authorized directly or indirectly to act as a fiduciary in this state, except in ancillary proceedings. . . .”
“Sec. 281. (Article 26) Effective date. The rules of procedure herein prescribed shall govern all probate proceedings brought after they take effect and also all further procedure in probate proceedings then pending, except to the extent that in the opinion of the court their application in a particular proceeding when they take effect would not be feasible or would work injustice, in which event the former procedure applies. This act shall take effect and be in force on and after July 1, 1939, and after its publication in the statute book.”
“Sec. 130. (Article 16) This article shall apply only to trusts the administration of which shall begin after the effective date of this act.”
By section 281 the effective date of the act was fixed to be “on and after July 1,1939, and after its publication in the statute book.” The statute book having been published on June 30, 1939, the entire act thus took effect on July 1,1939.
It is conceded that prior to July 1, 1939, there was no statutory provision which would bar the plaintiff, a foreign corporation, from serving as a fiduciary in this state. The question is whether it is now barred by the provisions of section 131, swpra. We do not find the question troublesome. Section 131, along with other provisions of the act, went into effect on July 1,1939. As heretofore noted, Mrs. Watkins died on June 1, a month prior thereto. By her will she named or appointed the plaintiff as trustee of certain trusts. The will was duly probated on June 5, 1939. Written acceptance of the trust was filed on June 28, 1939. Under such a state of facts certainly the plaintiff was “appointed” as trustee prior to July 1, 1939, when there existed no statutory bar to its serving as trustee. In order to hold that section 131 bars the plaintiff from now serving we would have to say that it is barred by the provision which reads: “or authorized ... to act as a fiduciary in this state.” Does the word “authorized” refer to a definite act of authorization, equivalent to an “appointment,” or does it signify a continuing authority? Clearly, it seems to us, it must mean the former. Otherwise, no foreign corporation, no matter when appointed, would be “authorized to act” as a fiduciary in this state after July 1, 1939. The result of such a construction would be that foreign corporations which had long been serving as trustees in this state, in pending probate proceedings, would become automatically disqualified from so acting on July 1,1939. We find nothing to indicate a legislative intent so to disrupt trust estates in the process of administration. Moreover, if any ambiguity on this point existed in the statute — and we discern none — the interpretation above stated would be fortified by the general and well-established rule of construction that statutes will not be given retroactive effect in the absence of clear indication of legislative intent to the contrary. (17 R. C. L. Limitations of Actions, 682-684, §§ 28, 29; 59 C. J. 1159-1169; also see International Mortgage Trust Co. v. Henry, 139 Kan. 154, 30 P. 2d 311, and other cases therein cited on p. 165.)
As additional support of its contention that it is not barred by the provisions of section 131, the plaintiff stresses the fact that on June 28, 1939, it voluntarily transferred to its trust department a deposit which Mrs. Watkins had in its commercial department and on the same day made what it considered proportionate distribution thereof to the various trusts created by the will. It argues that this transfer of the deposit prior to July 1, 1939, has significance in determining that the bar of the section is here inapplicable. We give no weight to that contention. In fact, while no issue is here presented on the question, we find nothing in the record to indicate by what authority such a transfer was made by the plaintiff. It was not made upon any order of the probate court where the will was filed, nor at the direction or suggestion of the executors of the will which created the trust. Assuming for present, purposes only that a Missouri court might have authority to assume administration of the deposit, it still does not appear that any such administration has been had in Missouri or that the transfer was made in pursuance of any judicial order in that state. Nor is the mere fact that no one’s rights may have been prejudiced by such undirected transfer of the deposit material to the present issue. The most that could be claimed for the book transfer of the deposit as bearing on the question here is that it was a gesture indicating the plaintiff’s willingness to accept the trust. But it can have no particular significance even for that purpose, since no one disputes the plaintiff’s willingness to accept. Certainly it can add nothing to the written acceptance filed on June 28 by the plaintiff.
We return to a brief consideration of section 281. In addition to its declaration that the act shall take effect on July 1, 1939, the section contains a provision with reference to the applicability of rules of procedure. We find no difficulty in determining the purpose of the provision. It was clearly the intention that the new rules of procedure should apply not only to the administration of estates to which the substantive provisions became applicable after July 1, but should also apply to further procedure in proceedings pending on July 1, except to the extent that their application in a particular proceeding would not — in the opinion of the court — be feasible or would work injustice. In other words, although some substantive provisions of the new code — such as that contained in section 131- — -would not apply to proceedings pending on July 1, the new rules of procedure would apply to them unless the court determined, for the reasons stated, that the old rules should continue to apply in a •particular pending proceeding. (Siefkin v. Seifkin, 150 Kan. 396, 92 P. 2d 1005.) It follows accordingly that probate proceedings in the instant case having been begun prior to July 1, 1939, the rules of procedure prescribed by the new code are to be followed except to the extent that the court may determine that their application would not be feasible or would work injustice, in which event the former procedure would apply.
We consider now the question of whether administration of the trust by plaintiff had actually begun prior to July 1,1939, within the meaning of section 130, supra. If such administration had not'so begun then the provisions of article 16 of the new code must be followed. Section 130, which is the last section of article 16, provides that the article- shall apply only to trusts the administration of which shall begin after the effective date of the act. It is not neces- . sary to recite in detail the provisions of article 16. It will suffice to say that it deals with “accounting of trustees,” provides for filing of an inventory 'by the first testamentary trustee within thirty days after it becomes his duty to take possession of .the trust property, provides for “intermediate accountings” to the probate court, for a “final accounting,” for a “distribution accounting” within thirty days after distribution of the trust property, for inventories and accountings by nontestamentary trustees, and sets forth certain rights and duties devolving upon testators, settlors and beneficiaries. Its obvious purpose is to provide for thorough accounting and proper supervision of trusts being administered in probate courts. The intent of section 130 is equally obvious. It is that the new provisions should be observed in the case of all trusts the actual administration of which had not begun prior to July 1, 1939, but not to impose them upon trusts that were at that time being administered under the former law. Some, at least, of the provisions of article 16 might be regarded as “procedural.” Insofar as they are procedural the provisions of section 281, supra, would have controlled, in the absence of the limitation provided in section 130, and article 16 would have applied to administrations of trusts begun before as well as after July 1 unless the court ordered otherwise in particular proceedings, as heretofore outlined.
With the clear intent of section 130 in mind, let us see whether the administration of the instant trust was begun before July 1. What had been done? The will which created the trusts and designated the trustee had been filed for probate, letters testamentary had been issued to the executors and the plaintiff had filed an acceptance of the trust. Nothing more. For reasons heretofore stated the voluntaiy and undirected transfer of the commercial deposit of the decedent by the plaintiff constitutes no act of administration. No funds had been distributed to the plaintiff by the executors nor had there been any order of the court relating in any way to the trusts or the trust funds. Indeed, neither under the old nor the new probate code (G. S. 1935, 22-921; sec. 114, Laws of 1939, ch. 180) could the executors be compelled to make distribution within one year from the date of their qualification except under the specific terms' set out in the statutes. Moreover, the will did not bequeath any specific personal property to the plaintiff, but only a specific amount “in cash and/or securities of equal value” for each of a number of the several trusts created. The plaintiff’s appointment under the will not having been recognized by any order of the court, no funds having been distributed to it, no action of the court or of the executors relating to such distribution having been taken, and other facts- in the case being as heretofore stated, we have no hesitancy in saying that within the meaning of section 130 administration of the trusts had not begun prior to July 1, 1939, and that the provisions of article 16 will therefore be applicable to the instant trust. In addition to all this, counsel for the plaintiff stated in the oral argument to this court that it is only seeking to act as trustee, is in no way seeking to avoid the jurisdiction of the probate court of Douglas county, but on the contrary intends to appoint a resident agent, in conformity with section 136 of the new probate code, and fully and freely to submit to the statutory jurisdiction of that court. It is the judgment of the court that this should be done.
In view of the conclusions already stated, it is not necessary to determine whether the plaintiff acquired, under the statutes existing when the will was filed for probate, any “vested” right to qualify and serve as trustee which could not be taken from it. Able and learned briefs have been presented on the question, and it is with a near regret that we forego consideration of it.
A concluding word. A brief of amici curiae has been submitted on the question of whether section 131 of the new probate code prohibits a resident of this state from making a bequest of personal property to a nonresident corporate trustee to be administered in trust by such trustee at its domicile in another state. That question is not within the issues presented. The sole contention of the plaintiff is that section 131 is not applicable to the instant case because the facts do not bring it within the bar of the act and that any attempt to make it applicable would be invalid as a retroactive application subversive of vested rights. Moreover, as already stated, plaintiff has indicated its intention to administer the trust in this state and not at its domicile in Missouri. We cannot now give consideration to questions relating to the construction and effect of the new probate code which are not a part of the issues before us.
It follows from the conclusions heretofore stated that a peremptory writ of mandamus should issue. It is so ordered.
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|
The opinion of the court was delivered by
Smith, J.:
This was an action by the state in the name of the county attorney of Sedgwick county and the Riverside Drainage District against the chief engineer of the division of water resources and a sand company to cancel a permit issued by the chief engineer to the sand company, allowing it to return to the bed of the Arkansas river refuse sand it had pumped from the river in operating its sand plant, and to enjoin the company from further maintaining a sand dump in the bed of the river. Judgment was for plaintiffs. Defendant appeals.
After setting out the official character of the parties, the petition alleged that the drainage district was organized under chapter 215 of the Laws of 1905, as amended by chapter 174 of the Laws of 1929; the limits of the district were then set out — that it comprised about 6,000 acres and was not adjacent to a drainage district on its north boundary.. The petition then alleged Dolese Brothers Sand Company operated a sand plant along the north bank of the Arkansas river at a site about 500 feet upstream from the west side of the John Mack bridge; that opposite the sand plant along the south bank of the river plaintiff had constructed a levee for the purpose of elevating the south bank and preventing a flood within its district and that the natural bank on the north side of the river was higher than the natural bank on the south side. The petition then alleged that the defendants illegally combining together engaged in a scheme to thwart the powers of plaintiff, because on or about October 14, 1937, Dolese Brothers obtained from the chief engineer a purported permit to maintain a sand dump in the bed of the river within the territorial jurisdiction of the district; that the sand company, acting in pursuance of the schemes, created and was maintaining a sand dump about 500 feet west of the John Mack bridge; that the maintenance of this sand dump caused the normal current of the river against the south bank to be augmented and was causing the water to cut behind the established south bank line, and if permitted to be so maintained would force a channel, whereby the levee would be rendered useless as a protection to the property, and there was no adequate remedy at law; that these things were done for the purpose of interfei'ing with plaintiff’s duty in the matter of protecting its property and was collusively granted and was void because—
(a) The chief engineer had no jurisdiction over watercourses within the plaintiffs’ district.
(b) That the chief engineer erred in his conception of his duties because the purported permit showed on its face that it was not to promote the public welfare, but to promote the private needs of Dolese Brothers, and that it was a collusive attempt to exercise the police power of the state for the protection of Dolese Brothers and not within the letter or spirit of Laws of 1929, chapter 203.
(c) That defendant engineer made no investigation of the past flood conditions at the point in question, but in disregard of his official duties and conniving with his co-defendant, granted the purported permit.
(d) That the application for the permit was not accompanied by maps, profiles and specifications of said water obstruction or of any changes or additions proposed to be made and such other data and information as would enable the chief engineer to act with knowledge in the premises.
(e) That chapter 203 of the Laws of 1929, under which the purported permit was granted, was unconstitutional and void because no standard or rule was provided in the statute upon which the chief engineer could base a discretionary power thereby leaving the granting of a license to maintain a public or private nuisance to the arbitrary and unregulated discretion of the chief engineer of the division of water resources regardless of what might be right and proper or within the contemplation of the legislature.
(/) That chapter 203, Laws of 1929, was void because it was an unwarranted delegation of power to license a nuisance.
(g) That the discretion vested in a public officer by chapter 203, Laws of 1929, was in violation of the 14th amendment of the constitution of the United States.
(h) That the purported permit, if otherwise valid, was void because it was unwarranted, in fact, unreasonable and collusively issued.
To this petition certain motions to strike were filed by Dolese Brothers. These motions were overruled.
The chief engineer admitted in his answer the organization of the drainage district and of the sand company, denied that he was' at that time chief engineer of the water resources and asked that the case be dismissed as to him.
The Dolese Brothers Company filed a, general denial.
It will be noted that the petition contained many allegations of fraud and collusion against defendants. When the case was tried the trial court did not find any of these allegations to be true, but, on the other hand, when defendants offered to introduce evidence to meet the charges of fraud and collusion, refused to allow such evidence to be introduced, stating there had been no evidence offered by plaintiffs to sustain it. We are unable to find any evidence of fraud or collusion on the part of defendants. On that account, and for the present at least, we shall consider the case as though the petition contained allegations that the sand company was operating a sand plant and obtained from the chief engineer a permit to maintain a sand dump in the river within the territory of the district and was maintaining the sand dump; that the sand dump caused the normal current of the river to cut behind the south established bank line and if permitted to be so maintained would force a channel and the levee would be destroyed.
At the conclusion of the evidence of plaintiffs, defendants demurred to it. This demurrer was overruled.
With the petition thus shorn of the allegations of fraud and collusion, attention should next be directed to finding of fact No. 18, as follows:
"At a point to the south of the sand pile, the river has cut to the south of the south established bank line about thirty feet, as shown by defendant’s exhibit 1, which was caused in part by the island of mud and clay approximately 175 to 200 feet in length and about thirty to forty feet in width, and also by the deflection of the flow of the water which is directed into the sand pile and deflected to the south and flows against the south bank of the river, causing the river to cut into the south of the south established bank line. The island has been pumped out by the defendant, Dolese Brothers, and the only thing now causing the water to be deflected to the south, is that caused by the deflection caused by the sand pile.”
Other findings were made. Many of the facts found were not disputed by the parties and will be referred to later on in this opinion.
The trial court made the conclusions of law as follows:
“No. 1. The sand pile composed of fine sand and silt maintained by Dolese Brothers, creates a nuisance and an obstruction to the flow of the Arkansas river and changes the cross current of said river.
“No. 2. The State of Kansas, ex rel. Eli Eubanks, county attorney, and the Riverside Drainage District of Sedgwick County, Kansas, are entitled to an injunction enjoining the defendant, Dolese Brothers, from maintaining said sand dump pursuant to the terms of the permit granted by the chief engineer of the Division of Water Resources, of the state of Kansas; unless the said defendant shall, at its own cost and expense, construct or install jetties on the south bank of the Arkansas river at the point in question, or construct or install other engineering devices, to protect said bank from being cut away by the deflection of the water from the sand pile to the south bank, all within thirty days from the filing of these findings and conclusions and pay the costs of the action.
“In the event that the defendant, Dolese Brothers, fail, neglect or refuse to comply with the conclusions herein reached, within the time herein specified', said injunction shall be in full force and effect and that the said permit granted by the chief engineer of the Division of Water Resources shall be canceled.”
Before the introduction of any evidence plaintiff asked and secured permission to amend the prayer of the petition by adding the following:
“And ordering said obstruction removed and the available stream bed restored to the condition in which it existed prior to the obstruction complained of.”
After the findings of fact and conclusions of law were made the defendants filed motions to modify and set aside and make additional findings of fact and conclusions of law and for a new trial. These motions were denied, except that conclusion of law'No. 2 was modified by striking out all after the word “unless” and substituting therefor the following:
“Defendant Dolese Brothers Company be enjoined from deflecting the channel in any manner to cause the cutting of the natural banks back of the established bank lines, and to pay the costs of this action.”
The final journal entry recited that the journal entry formerly entered should be amended in like manner. Thus, the final judgment, if the language used by the court be taken literally, was: ■
“It is considered, ordered and adjudged by the court that the defendants, Dolese Brothers Company, a corporation, be and is hereby enjoined from maintaining a sand dump pursuant to the terms of the permit granted on the 14th day of October, 1937, by the chief engineer of the Division of Water Resources of the state of Kansas and . . .
“Defendant Dolese Brothers Company be enjoined from deflecting the channel in any manner to cause the cutting of the natural banks back of the established bank lines, and to pay the costs of this action.”
Defendants appealed from the judgment rendered on March 6, 1939, when the findings of fact and conclusions of law were made, and from the judgment of March 24, when the order passing on.the motions to modify, set aside and make, additional findings of fact and conclusions of law was passed on, and the motion of defendants for a new trial was overruled.
: The defendants assign fifteen specifications of error. It will not be necessary to notice all these in detail.
Thé''first argument made by defendants is.‘that the state division of water resources had superior jurisdictiqp .to ,t^e,drainage district. The consideration of this argument will require, an examination of the statutes providing for the organization of drainage districts and the later statutes whereby the state’ undertook to exercise a general supervisory jurisdiction ovéí'drainage and flood control.
The act under which this distr^t .ivas organized was passed in 1905 as a result of the disastrous floods of a year or two before. It was chapter 215 of the Laws of 1905, and its main features appear as G. S. 1935, 24-401, and the following sections. By these sections broad powers were conferred on drainage districts, among them being the following from G. S. 1935, 24-407:
“That each drainage district incorporated under the provisions of this act shall be a body politic and corporate, and (subject to the superior jurisdiction of the United States over navigable waters) is hereby granted exclusive control of the beds, channels, banks and of all lands the title to which is vested in the state of Kansas lying between the banks at high-water mark of all natural watercourses . . . within its territorial limits, and to so widen, deepen, establish, regulate and maintain the channels thereof and to construct and maintain such levees along the banks thereof as may be deemed necessary or proper to prevent or restrain overflow or lessen the volume thereof or the injury deemed likely to result therefrom; also to make and maintain such ditches, drains, sewers and canals through lands subject to overflow. . . .”
A fine discussion of the historical background for this act and of the general powers conferred on drainage districts by its terms is found in Drainage District v. Railway Co., 99 Kan. 188, 161 Pac. 937. This was an action whereby the drainage district sought a writ of mandamus to compel a railway company to remove one of its bridges across the Kansas river because its general structure was such as to constitute a flood hazard. This court reviewed the history that led to the passage of the drainage district act and pointed out that this was the means by which the state sought to take action that would prevent a recurrence of the disastrous floods of former years. The drainage district contended that the statute gave it exclusive jurisdiction over the river so as to preclude judicial investigation into the reasonableness of its orders. The court said:
“That goes too far. The plaintiff board is an administrative agency. Within its powers it is supreme. But its orders must be reasonable. And it cannot be the final judge of the reasonableness of its own orders. That would be tying administrative and judicial powers in one hand, and this our own constitution will not allow. - That was the constitutional rock which wrecked the court of visitation act nearly twenty years ago. (The State v. Johnson, 61 Kan. ,803, 60 Pac. 1068.) Other public boards with duties almost as onerous,as,those of this plaintiff, like the public utilities commission, for example, exercise their powers in harmony with,this principle. So do the city governments.” (p. 204.)
This court then cited decisions with reference to the powers of the public utilities commission, and of cities, and then said:
“It may therefore be said generally that when the .state creates an agency to serve its public needs and confers "administrative powers upon it, whatever be the language of the statutes conferring such powers, a jüst and reasonable exercise of such powers is intended, and the power to make or exercise unreasonable, arbitrary and confiscatory orders is not intended. Such is the spirit of our own bill of rights and of the fourteenth amendment, which have been expounded times without number by this court and by the federal supreme court.” (p. 205.)
This case is of interest to us here because it is about the first opinion of this court considering the powers of drainage districts, also because it lays down the test of reasonableness for the validity of the orders of the district. It should be remembered, too, that this act marked the first effort on the part of the state to take some action to prevent floods. Since 1905, and the decision in the above case, many districts have been organized along the other streams in the state and a great deal of litigation has been carried on. As far as can be ascertained no change has been made in the rule that reasonableness is the test of the validity of an order of a district.
We must now examine some later statutes bearing on this general subject.
In 1929 the legislature enacted chapter 174 of the Laws of 1929, which amended chapter 215 of the Laws of 1905, not, however, in any respect in which we are interested.
In 1913, however, an act was passed which had some bearing on chapter 215. That year chapter 259 of the Laws of 1913 was enacted. The first section of that chapter provided as follows:
“That from and after the taking effect of this act it shall be unlawful for any person, partnership or corporation to take from within or beneath the bed of any navigable river or any other river which is the property of the state of Kansas any sand, oil, gas, gravel or mineral, or any natural product whatsoever from any lands lying in the bed of any such river or any hay, timber or other products belonging to the state, except in accordance with this act.”
The act then provided for the executive council of the state making rules and regulations and laying down terms upon which sand could be taken. The executive council did make many rules and set a price to be paid for sand. For many years sand companies operated under this statute and the rules and terms determined by the council. This statute was upheld in several decisions. (See Wear v. Kansas, 245 U. S. 154, 62 L. Ed. 214, 38 S. Ct. R. 55.) The statute is of interest to us here on account of some arguments made by defendants which will be noted later on in this opinion and also because it evinces a determination on the, part of the legislature that the sweeping grant of power to drainage districts was subject to curtailment by thessubsequent enactment of legislation.
• The above construction is borne out by the enactment of chapter 173 of the Laws of 1917. That chapter provided, among other things, that—
“All drainage districts incorporated under the provisions of chapter 215 of the Session Laws of 1905, shall have power: First, to take from any navigable river within their corporate limits, sand, gravel, rock, or other minerals, with•out the payment to the state of any compensation therefor. . . .”
Clearly chapter 259 of the Laws of 1913 had been interpreted to mean that a drainage district had to pay for sand taken from a navigable stream even though it was taken from that part of the stream that was within the borders of the district. This statute was construed by this court in State, ex rel., v. Kaw Valley Drainage District, 126 Kan. 43, 267 Pac. 31. In that case it was held that the act did not confer on drainage districts the authority to engage in the business of operating a sand plant for profit even though the sand was taken from a stream from within the borders of the district. In the opinion this court also said, with reference to a drainage district:
“A drainage district so created is a quasi municipal corporation, an arm of the state, created by the legislature to perform a function of government, namely, to provide a drainage system for the district.”
The matter of flood control and irrigation as co-related subjects began to engage the attention of the legislature in a constructive way in 1917. That year the Kansas water commission was created by chapter 172 of the Laws of 1917. The first section of that chapter provided as follows:
“A commission which shall be known as the Kansas Water Commission is hereby created for the purpose of investigating and controlling the problems of flood prevention, drainage, domestic water supply, water power, navigation and irrigation in the state of Kansas. But said commission shall not interfere with any drainage system now established in drainage districts created under existing laws.”
The act further provided for the commission making a general plan for each watershed in the state and provided further that the commission should study the laws of the state relating to drainage and kindred subjects and make recommendations to the legislature from time to time. As this act was written it did not make much change in existing laws.
■ In 1919 chapter 218 of the Laws for that year created the division, of irrigation within the state board of agriculture. It was made the duty of the commissioner appointed pursuant to the act to gather data concerning irrigation in the state. There had been a provision for a board of irrigation, but these provisions were repealed by chapter 218 of the Laws of 1919. Some state funds were made available for the carrying on of this work. So far these laws do not appear to have had much to do with our problem, but the study of the problem of flood control on one hand and of irrigation on the other was going on all the time.
In 1927 chapter 293 of the Laws for that year was enacted. The first section provided for the consolidation of the Kansas water commission with the division of irrigation and created the division of water resources within the state board of agriculture. The second section conferred all the powers of both the above boards upon the division of water resources. The water commission and the division of irrigation were abolished. The acts providing for the creation of both these bodies were repealed. This is of interest to us here because it will be remembered that section 74-2601 of R. S. 1923, being section 1, chapter 172 of the Laws of 1917, had created the water commission and had provided that it should not interfere with any drainage system then established in drainage districts created under existing laws. Chapter 293 of the Laws of 1927 repealed this section. The chapter did not, however, confer any new power on the division of water resources.
The session of 1929 seems to have been a fruitful one as far as drainage and flood control are concerned. The first act we shall notice is chapter 176 of the Laws of 1929. That was a comprehensive and ambitious plan for the organization of drainage districts in more than one county. On account of the fact that the sections providing for the organization of districts provided for district judges acting outside their districts and beyond their judicial powers, the act was declared unconstitutional in Verdigris Conservancy District v. Objectors, 131 Kan. 214, 289 Pac. 966. The act, however, had a provision that if any section or sections were declared unconstitutional the remainder of the act should not be invalidated but should remain in full force and effect. The act then contained the following section:
“From and after the taking effect of this act it shall be unlawful for any person, corporation, drainage or levee district, operating under any of the drainage or levee laws of the state of Kansas, without first obtaining the approval of plans for the same by the chief engineer of the division of water resources, to construct, cause to be constructed, maintain or cause to be maintained, any levee or other such improvement on, along or near any stream of this state which is subject to floods, freshets or overflows, so as to control, regulate or otherwise change the floodwaters of such stream; and any person, corporation or district violating this section of this act shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not less than one hundred dollars nor more than one thousand' dollars, or by imprisonment in the county jail for a period of not more than one year, or by both such fine and imprisonment, and each day any structure is maintained or caused to be maintained shall constitute a separate offense. And in the event any such structure is about to be constructed, is constructed, or maintained by any person or corporation without approval of plans by the chief engineer, it shall be the duty of the attorney general, on the request of the chief engineer, to file suit in a court of competent jurisdiction, to enjoin the construction or maintenance of such structure: Provided, That prior to the adoption of a general plan of drainage and flood protection, as provided in section 12 of this act, or in section 24-901, Revised Statutes of Kansas, 1923, and the commencement of construction in carrying such plan into effect, the chief engineer of the division of water resources may give temporary approval for the repair and maintenance of any levee or other drainage work in existence on the passage of this act; but such approval for such temporary repair and maintenance shall be without prejudice to a withdrawal of such approval when a general plan shall be adopted: Provided, That nothing contained in this section shall apply to any drainage district heretofore organized under chapter 215 of the Session Laws of 1905 and having therein property of an assessed valuation of fifty million dollars or more.” (§71.)
It should be noted that this section required any drainage district before constructing or maintaining any levee to have its plans approved by the chief engineer of the division of water resources. Attention has already been called to the repeal of section 1 of chapter 172 of the Laws of 1917, which section had provided that the Kansas water commission should not interfere with drainage districts already organized. Attention is now called to the last provision of section 71 of chapter 176 of the Laws of 1929. It was provided there that the provisions of section 71 should not apply to any drainage districts organized under the act of 1905 having propr erty therein of an assessed valuation of fifty million dollars or more. Since the Kaw Valley district was the only one with such a valuation, this proviso is another indication of the determination of.the legislature to bring drainage districts in general under the supervision of the division of water resources and its chief engineer.
But chapter 176 was not the only, act with reference to drainage that was passed in 1929. .
The next act we shall consider-is chapter 208 of the Laws of 1929. The first section of that chapter provided as follows: '
“From and after the passage of this act, it shall be unlawful for any person or persons, partnership, association, corporation, county, city, town, or township to construct any dam or other water obstruction; or to make, or construct, or permit to be made or constructed, any change therein or addition thereto; or to make, or permit to be made, any change in or addition to any existing water obstruction; or in any manner to change or diminish the course, current, or cross section of any stream within this state without the consent or permit of the chief engineer of the division of water resources, in writing, previously obtained, upon written application to said chief engineer therefor: Provided, That jetties or revetments placed for the purpose of stabilizing a caving bank shall not be construed as obstructions to this act providing such jetties and revetments are properly placed.”
The succeeding sections provided for plans and maps being furnished and approved by the chief engineer and provided a penalty for the violation of the act. These sections are G. S. 1935, 82a-301 to 82a-305, inclusive. The permit to the sand company, with which we are concerned here, was issued pursuant to these chapters. It should be noted that the first section provided for a hearing before the permit was granted; The plaintiffs in this case argue that this section referred only to such structures as dams in a river and not to sand dumps such as we are considering here. This is too narrow a construction. We shall read the section, as follows:
“It shall be unlawful for any person ... to construct any . . . water obstruction; or in any manner to change . . . the course, current or cross section of any stream . . . without the permit of the chief engineer of the division of water resources.”
So considered, the section clearly applies to sand dumps. The dump might be an obstruction and it certainly might change the cross section of the stream.
The legislature of 1929 alsp passed chapter 143, Laws-1929. The first section of that chapter provided, in part, as follows:
“The division of water resources in the state board of agriculture, under the supervision of the chief engineer, is hereby authorized and directed to make a survey of the streams of the state of Kansas, for the purpose of establishing bank lines on said streams. . . .”
The term “established bank line” is used a great deal in the pleadings, evidence and findings in this case. It should be noted that the provision quoted above from chapter 143 is the first use of the term in our statutes and then it is used in connection with conferring authority on the division of water resources and its chief engineer. The second section authorized the board of county commissioners to clean and maintain the banks and channels of streams within the bank lines established by the division of water resources for the purpose of reducing floods and overflows. The third section provided for the expenses being paid out of the general fund of the county. Section 4 provided that one-half the net proceeds of the sale of products taken from the bed of any river, which was the property of the state, should be returned to the counties through which the river flowed, and the fund should be used for cleaning or maintaining the stream. The section also contained the following proviso:
“That where such river extends into or through any drainage district in this state, organized under any of the drainage district laws thereof, the board of directors of such district shall be entitled to receive the same portion of the proceeds of such products as is provided in section 71-102, Revised Statutes of Kansas, 1923.”
R. S. 1923, 71-102, provided that drainage districts should receive one-third of the net proceeds of sand taken from that part of a stream that lay within the limits of any drainage district. It was clearly the intent of this act that bank lines should be established along streams regardless of whether drainage districts had been organized. This chapter also repealed the provisions of the statutes which had conferred on county commissioners jurisdiction over the work of cleaning streams.
A flaw in chapter 143, Laws 1929, soon developed. While the first section directed the division of water resources to make a survey of the streams of the state and to establish bank lines, no funds had been made available for that purpose.
Accordingly the legislature of 1931 enacted chapter 318, Laws 1931. Section 1 of that act amended section 2 of chapter 143 of the Laws of 1929 by providing that upon petition of fifty taxpayers of any county owning land in the flood plain of any river in the county, the county commissioners were authorized to clean and maintain the banks of streams within definitely established lines.
The act then provided that before doing the work provided for in section 1 the county commissioners should cause a survey to be made showing the bank lines to which the streams were to be cleaned and maintained and—
“Shall submit to the division of water resources, state board of agriculture, a map showing the bank lines so established to which it is proposed to clean and maintain the stream and showing obstructions which it is proposed to remove. Such plan shall have had the approval of the chief engineer of the division of water resources before the board is authorized to proceed with the work.”
Section 3 provided that expenses incurred be paid from the general revenue fund of the counties. Section 4 provided that one-half of the net proceeds of the sale of sand taken from the river should be returned to such counties as had adopted the act, the money to be used for the cleaning and maintenance of the stream. There was also the same provision that was in chapter 143 relative to drainage districts being paid one-third of the proceeds of sand or other minerals taken from any river where it extended into or through any drainage district. Section 5 of the chapter provided as follows:
“This act shall not apply to the portions of any stream lying wholly within the boundaries of any organized drainage or levee district: Provided, That that portion of such stream is actually improved and maintained by and as a part of the work of such district.”
It will be seen that the results of the enactment of this act was that the work of doing the surveying attendant on establishing the bank lines should be done under the supervision of the county commissioners, but that before it was done the plan in each county should be approved by the chief engineer of the division of water resources. The two statutes are of interest to us here because they show that established bank lines were provided for therein and were the result of the work and plans of county commissioners and the division of water resources. They show too clearly to admit of argument the legislature intended the matter of flood control should be considered to apply to as much of the river as flows through the state. Search of the records of the division of water resources discloses the operative interpretation of the act has been that the bank lines should be established along the whole length of the river in each county that comes under the act regardless of whether there were drainage districts along the river. The act has been followed through Sedgwick, Cowley and Sumner counties, which cover all the river from where the drainage district in this case is located to the point where it leaves the state.
The operative interpretation which has been put upon section 71 of chapter 176 of the Laws of 1929 has been that all plans for the building and maintenance of levees by drainage districts should be submitted to the chief engineer of the division of water resources.
We have examined the legislation on these matters at some length on account of the argument of the defendant sand company that the action of the chief engineer.of the division of water resources was final in a case of this kind, on the one hand, and the argument of plaintiffs, on the other hand, that the act of the drainage board in ordering the sand dump taken out was final.' The latter argument is to the effect that the taking of sand from the river bed is still carried on subject only to the orders and regulations of the executive council and that the order of the drainage district was a legislative act subject to no review whatever. Neither of the arguments is entirely correct.
The enactment of the laws we have just reviewed had the effect of depriving the drainage district of many of its powers. It no longer enjoys the supremacy in the conduct of affairs within its boundaries that it once had. The legislature has taken effective steps to bring the general subject of-flood control under a common head so that a comprehensive plan may be evolved for the entire length of a stream within the state. The plans of any drainage district must yield to the general plan when the two conflict. On the other hand, the division of water resources is an administrative body. Its orders must be reasonable.
If the allegations of the petition that this sand dump caused the normal current of the river against the south bank to be augmented and caused the water to cut behind the established bank line, and if permitted to be maintained would force a channel whereby the levee would be rendered useless as a protection to property were proven in this action, or if there was substantial evidence to support such an allegation, then the order of the chief engineer permitting the maintenance of the sand dump was unreasonable. Obviously there is no benefit to the drainage of the entire river to have the sand dump maintained; so, if it was causing the river to cut into the south bank so as to endanger the levee it should not be maintained. The chief engineer of the division of water resources evidently had this same idea because in his order permitting the maintenance of the sand dump he inserted the following:
“The normal current of the stream shall be directed against the sand dump at all times and shall not be permitted to cut the natural banks on either side of the river back of 'the established bank lines. No permanent obstructions shall be placed in the stream which project above normal low water within the established bank lines.”
There can be no question but that the current of the river has been directed against the south bank and has cut behind the established bank lines. The question that confronts us is — Was there substantial evidence that the maintenance of the sand dump caused this?
The first witness for the plaintiffs, a member of the board of directors of the district, testified as to the size of the sand pile about which there does not seem to be much dispute, but offered no testimony on the precise question we are considering.
The next witness was an engineer for the district. He testified about having seen the south bank cave into the water. He was asked whether the normal current of the river was directed against the sand dump, and answered in the negative. He was then asked the following question: Does the sand dump as allowed by this permit change the course, current and cross section of the stream at the point in question? After some objection by counsel he was permitted to answer that question in the affirmative. The defendants objected to the admission of this evidence on the ground that the witness had not shown himself to be qualified professionally. His qualifications were not as good as those of some of the engineers who testified later for defendants, but we have concluded that he was well enough qualified so that his testimony was competent and his lack of technical qualifications goes rather to the weight of his testimony than its competency. Later on this witness was permitted to testify that at the point in question the river was flowing about fifty feet south of the established bank line. That this was the case is admitted by all parties.
The next witness was the president of the board of directors of the drainage district. He testified as follows:
“I have noticed a change in the river bank at the levee opposite the Dolese plant within the past year. The stream did flow against the north bank and now it is flowing against the south bank right along where they pump the sand out and it is caving. Since the sand dump has been put in, the south bank has been washed away and pumped away until it is right close to the dyke now. . . . The bank is within 30 to 50 feet of the dyke all along there now. Years ago or a year or so ago it was a couple of hundred feet from the dyke. . . . Prior to the time that Dolese Brothers put their sand pump in there the water flowed toward the north bank, but they have been forcing it south ever since they have been there. I do not know when they put the pump in the river.”
The next witness was another member of the board of directors. He testified:
“Before the sand was placed in the river by Dolese Brothers the channel was to the north. Now it is to the south side. I have observed the bank of the river opposite the sand plant cave in.”
The next witness was another member of the board. He testified:
“Before the sand was placed in the river the course of the stream was to the north side. After the sand was placed in the river the course was to the south side.”
The next witness, who had observed the river, was a resident of Wichita. He testified as follows:
“Before placing the sand the channel was immediately against the north bank. After placing the sand there it is at the south bank.”
This concluded the testimony offered by the plaintiffs.
After the plaintiffs had rested, the defendants demurred to the evidence on the ground that it did not prove any cause of action against them. This demurrer was overruled.
It will be noted that the question of fact, as heretofore set out in this opinion, was not whether the current was against the south bank of the rivet, but whether this sand dump caused it to be against the south bank of the river. About the only testimony offered by the plaintiffs on that question was that of the engineer heretofore quoted. The other witnesses, whose testimony has been quoted, did not touch on the precise question of fact with which we are now concerned. After the demurrer of the defendants to the evidence was overruled the defendants went ahead and introduced their evidence. This consisted of the testimony of the chief engineer and the assistant chief engineer of the division of water resources and some employees of the sand company. They testified from various maps and the studies of the river that have been made from time to time. Their testimony was fair and unbiased and gave the court a comprehensive picture of about everything that has been learned about the river since the state began to take an interest in the question of flood prevention and drainage. Their evidence was so fair that it supplied some of the elements that were needed to prove the plaintiff’s cause of action. In a case of that kind where we are considering the question of whether or mot there was substantial evidence to sustain the findings made by the trial court, which is really the question to be determined when we are considering the correctness of an order overruling the demuz’rer to the evidence, we will consider evidence introduced by defendant as well as that introduced by plaintiff.
(See Gould v. Hutchinson Oil & Gas Co., 150 Kan. 516, 95 P. 2d 301.)
Accordingly we shall now examine the evidence offered by the defendants bearing on our question.
The first witness to testify for defendants was an engineer who came to Wichita to assist in designing a flood-control system for Wichita on the big and little Arkansas rivers. He had been an engineer for the plaintiff in 1928 and 1929: He had worked with the river in one capacity or another for many years. He had prepared one of the maps that plaintiffs had used in presenting their case.
The position of defendants was that the deflection of the current that caused the cutting behind the established bank line was caused not by the sand pile, but by an island that had been in the river just south of the sand pile. On this point he testified as follows:
“At'the south end of contour 83 of the sand pile, as shown oh plaintiffs’ exhibit 1, there was an island or sort of a clay point. The extent of that island at the time I made the survey was approximately 175 feet or 200 feet in length and about 30 or 40 feet in width. The island consisted of natural soil deposit similar to the natural banks of the stream. In other words, it was not sand, it was clay or loamy formation. At the time I made plaintiff’s exhibit 11 the south bank of the river had encroached upon or gone south of the south established bank line. It had so gone south of the established bank line immediately opposite this island referred to. I have an opinion as to what caused the actual bank to extend south of the established bank line. It was caused by the position of the island, that is, its longitudinal axis lies from the northwest to a southeast direction, oblique to the center line of the flow of the river. The water flowing in the river coming from the curve lying immediately west of the Dolese plant would have its greatest velocity upon the north bank opposite of the curve or the cutting edge of the curve and then would go down and would be deflected by the island to the south and cut in that point, cutting the bank.”
It will be noted that none of the witnesses for plaintiff had testified as to an island. This was the first witness who testified as to the fact that an island was there. It should be noted, too, that the witness testified that the island was covered with grass and had a top soil of clay or loam. This is important because of the argument of defendants that the sand in the dump was loose, fine sand, that if kept free from weeds and grass would wash away easily, while the clay and loam of the banks or the island would not scour so readily. It should be noted that this witness testified as a fact that the island was there and there is no dispute about that. He testified that it was his opinion that the current striking this island caused it to be deflected to the south bank. This was the question the trial court had to decide. It was the duty of the trial court to take this statement and weigh it along with other statements and all the surrounding facts and circumstances. This witness also made the following statement:
“At the present time the flow of the current of the river is directed against the sand pile at the upper end and then flows parallel to it for the balance of its length.”
This statement is in direct conflict with the statement of the engineer who testified for the plaintiffs. It was the duty of the trial court to decide which of these statements was the correct one. This witness then testified that the island had been removed. After making the statement in various ways that the pumping out of this island by the sand company caused the current of the river to flow parallel to the south bank rather than cutting into it, this witness then testified, as follows:
“The Court: Did the water flow north of that island? A. Some flowed north at that time, yes.
“The Court: And that part where the water flowed north at that time is now filled up with sand? A. Not now, it was as of this date. At the present time this island is entirely removed and there is an open flowing channel 250 to 300 feet.”
This bit of evidence is persuasive to this court. Of course, the water did not flow to the north of this island after the island was pumped out. It is a reasonable inference, however, that the channel between the north side of this island and the north bank of the river was filled up with sand from the dump. Should this have been the case, there would have been a good reason why the current was shifted to the south. As long as there was a channel to the north of this island it is reasonable to infer that the river would flow, part of it at least, along that channel. Considerable weight is given this argument by the fact that on some of the maps there is some open water shown between the north side of this island and the north bank or edge of the sand dump. It is true that this witness testified that the open water between the south established bank line and the south edge of the sand pile had increased from 100 to 125 feet to about 250 to 300 feet between the time when he had made the map and when he had observed the river just before testifying, and that part of this was due to the island being pumped out, and part to the dump being washed away. There was testimony in the case, however, that differs from this and it was the duty of the trial court to reach a conclusion as to the question of fact from all the evidence. All inferences favorable to the trial court’s findings must be drawn.
The next witness was the manager of the sand cofiipany. He testified as to the manner in which the sand company operated, about which there was no dispute; that between eight and ten percent of the sand was put back and it was fine blow sand. He also testified as follows:
“We started pumping out the island immediately after October 7, 1937, and sometime during that month we had it completely pumped out. I noticed a change in the flow of the river after pumping out the island in that the stream straightened up. The island wasn’t really an island to start with, it was simply the south bank of the river or a portion of the south bank, and then when the WPA force went down there to make some excavating to build the dyke or increase the dyke on the south bank of the river they cut a channel through there and the water immediately went around to the south side of the island. Before the island was pumped out the flow of the stream was against the south bank of the river; that is, all of the water went around south of the island. When the island was removed the flow of the stream was straightened.”
He testified further: “Immediately after the rise in water there was between 285 and 315 feet of open bed of the river.”
He also testified: “There is about 200 to 250 feet of open flow of water south of the sand plant.”
The assistant engineer for the division of water resources was the next witness. His testimony was largely to the effect that all parties were given a complete hearing at the time the permit was granted.
The next witness was an employee of the sand company. He testified that a seven-foot rise of water in June, 1938, washed away 100 to 120 feet of the sand dump.
The next witness was the chief engineer of the division of water resources. He testified, in part, as follows:
“We have a definite plan with respect to flood control of the Arkansas river through the city of Wichita past and as far as the John Mack bridge in connection with carrying out our duties under the water commission act of 1917 . . . The plan involved the widening and deepening of the channel through the city and .the raising of the banks or the establishment of levee grades through the city and down to the John Mack bridge and beyond. . . . The effect of the lowering of the bed of the river is to increase the-carrying capacity of the stream and permit floods to flow through the city at lower elevations than they otherwise would.”
He further testified: ’
“Q. Now, what happens to that sand when it is placed in the river? A. It remains there until there is a sufficient flow of water to begin to reduce it, after which a portion of it usually drops into the holes pumped out by the sand company and a portion floods along in suspension in the water or travels along on the bed of the river in what is known as the bed load.
“Q. Have you had experience, Mr. Knapp, with the placing of these what you would call waste sand, sand dumps from sand plants in rivers? A. Yes, these have been referred to as waste sand or, I think, in the trade commonly referred to as reject sand.
“Q. Have you had experience with that over a period of years with sand companies? • A. Yes, sir; ever since the act of 1929 was passed.
“Q. Does that extend over in the Arkansas river? To sand piles in the Arkansas river? A. Throughout the Arkansas river and in other streams.
“Q. What has been your experience with reference to them and their clogging or obstructing a stream insofar as the natural flow or the flow of the stream is concerned? A. Well, they may be measured as what appears to be a physical obstruction or as occupying a portion of the river channel during dry times, they are not an obstruction to the flow of water in the stream.
“Q‘. How do you arrive at that conclusion, Mr. Knapp? A. I arrive at that conclusion by studying such things throughout the state of Kansas.
“Q. Give us some of your experiences in connection with it. A. Well, there are various experiences. Perhaps as definite as any is the situation in the city of Topeka. At the time that act was passed in 1929 there were several very large, sand piles in the Kansas river between the Kansas avenue bridge and the Rock Island bridge and soon after the act was passed I was petitioned to prohibit the return of any reject sand into the river. I made an investigation which convinced me that it could safely be returned subject to certain restrictions and put these restrictions into effect. Since that time the sand moved out every time a rise occurred on the river and the sand boats have since moved out of that section and there is not a single vestige of any of that reject sand in the river channel at this time.”
This witness then described the sand pile, and further testified as follows:
“Q. Mr. Knapp, how does the river flow immediately to the west of the Dolese Brothers Sand Company plant? In what direction does it flow? A. From a point somewhat westward of the Dolese Brothers Sand Plant the water is accustomed to flow against the south side of the bank.
“Q. Why is that? A. Because of the curvature of the stream at that point.
“Q. Now, what is the direction of the stream with respect to the sand pile or sand waste? A. As the stream leaves the south part, the end of that curve, it tends to cross over and strike against the edge of the sand pile.
“Q. That is caused by the natural curvature of the river? A. Yes, sir.
“Q. Is the flow of the stream directed against the south bank of the river opposite the sand plant? . . . A. Not to any extent until a point approximately below the sand pile or approximately in the location of-the sand boat is reached.
“Q. Mr. Knapp, in your opinion, does the sand bar as it now exists obstruct the flow of the water in the Arkansas river? A. No, it doesn’t.
“Q. Does it deflect the flow of the water in the river toward or into the' south bank of the river immediately opposite the sand pile? A. It deflects the current of water downstream, after which it flows approximately parallel to the south bank.
“Q. Approximately parallel to the south bank. How much open flow or bed of the river is normally necessary to carry or is necessary to carry the normal flow of the Arkansas river, could you estimate that? A. . . . let’s say from fifty cubic feet per second up to about twenty thousand, and we have all the conditions of flow below that. I think if you were to ask me that question with regard to low-water flow I could answer it.”
This witness also testified at length about how pumping the sand out of the bed of the river made it deeper and this drew the water to the deep part. On this subject he testified as follows:
"By Mr. Spradling: Q. Suppose that the sand had been pumped out of the river and all of the reject sand placed completely over on the bank and not in the river — ■
“The Court: Up at Valley Center, for instance.
"Q. Yes, taken to Valley Center and not put in the river, would the river flow the same now with the sand in the river as it would if that reject sand had not been placed in the river? A. I would be unable to say definitely. Of course, it would depend on where the river is pumped out the deepest, probably not, for the reason the curvature, as you will note, is on the outside, on the north side, and if the bed of the stream was smooth there is a probability that the low-water flow would continue to flow to the north, whereas with the sand there the low-water flow has followed the location of the sand boat.
“Q. Has the sand dump in any way caused or is it causing cutting of the south river bank as it now exists? A. I could not reach that conclusion from my examination yesterday or day before yesterday.”
On this evidence the trial court made findings of fact, among them being the one already noted — that the stream had cut behind the south established bank line and that this was caused in part by the current being deflected by the sand pile. We are not confronted with the duty of making a finding as to this fact. ' We have' only the duty of deciding whether there was substantial evidence upon which the trial court could make the finding. All reasonable inferences must be drawn from the proven facts and circumstances in favor of this finding. When that is done we reach the conclusion that it is sustained by the evidence.
Ordinarily this conclusion would dispose of this appeal, because if the sand dump is causing the current to cut into the south bank and endangering the levee, it should not be permitted in the river.
The first conclusion of law made by the trial court was that the sand pile created a nuisance and an obstruction to the flow of the river and changed the cross current of the river. This conclusion evidently is based on the provisions of subparagraph 9 of section 7 of chapter 215 of the Laws of 1905. This section is the one that gives the drainage district authority to declare certain obstructions to be nuisances. We have seen that many of the powers conferred on drainage districts by this chapter were taken away by subsequent enactments when general supervision over the flow of drainage districts was conferred on the division of water resources. Neither the evidence nor the findings of the court sustain a conclusion that this sand dump is a nuisance in itself. It is only the manner in which it is maintained that makes it unlawful. There is no evidence whatever in this record that the levee is endangered.
The next question has to do with the second conclusion of law. We have seen that if this should be taken literally it would read as follows:
“The State of Kansas, ex rel. Eli Eubanks, Couny Attorney, and the Riverside Drainage District of Sedgwick County, Kansas, are entitled to an injunction enjoining the defendant, Dolese Brothers, from maintaining said sand dump pursuant to the terms of the permit granted by the chief engineer of the Division of Water Resources of the state of Kansas;”
And,
“Defendant Dolese Brothers Company be enjoined from deflecting the channel in any manner to cause the cutting of the natural banks back of the established bank lines, and to pay the costs of this action.”
The confusion is caused by the fact that on a motion to modify the findings and conclusions the trial court struck out part of conclusion No. 2 and substituted the latter part of the above. No final journal entry was ever made, so it leaves us all a little uncertain as to whether the trial court intended to enjoin the sand company from maintaining the sand dump pursuant to the terms of the permit or only to enjoin it from deflecting the channel so as to cut behind the established banks, or both. It would seem that if the trial court intended the latter it would be a’contradiction in terms because if the dump had been maintained pursuant to the terms of the permit, then there would have been no need for the latter part of the order. On the other hand, had the court intended to enjoin the sand company from maintaining the sand dump under any circumstances it would not have ordered the sand company to be enjoined from deflecting the current. We are aided somewhat in deciding this question by our conclusion that all the relief the plaintiffs are entitled to is that the sand company be enjoined from deflecting the current of the channel in any manner to cause the cutting of the natural banks back of the established bank lines. The permit issued by the division of the water resources placed that limitation on the sand company and it does not appear but what the sand dump could be maintained within such limitations. This controversy started in the fall of 1937 and the sand dump has been there all this time. Unlike some of our litigants, the Arkansas river has kept serenely on its way to the sea regardless of the lawsuits constantly being waged over the title to its bed, or the amount of water brought down from the mountains, sometimes too much, sometimes too little, or in this case the direction of its current. It is not recorded that Coronado started a lawsuit when he discovered the river 400 years ago, but the supposition is that had there been a court available he would have. Mayhap the three years that have elapsed since the events transpired that have been testified about in this case have demonstrated that the sand dump can be maintained without changing the current of the stream so as to cut behind its banks. In order to clarify this situation, therefore, we have concluded that the facts found do not justify a judgment that defendants should be enjoined from maintaining a sand dump pursuant to the permit, but they do justify a judgment that the sand company be enjoined from deflecting the channel in any manner to cause the cutting back of the established bank lines.
The questions raised by the drainage district in its cross-appeal have been heretofore dealt with in this opinion.
The judgment of the trial court as to the appeal is modified so that the defendant sand company will be enjoined from deflecting the channel in any manner to cause the cutting of the natural banks back of the established bank lines, and as so modified is affirmed. As to the cross-appeal, the judgment is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to foreclose a mortgage on real estate, and from a judgment against them the defendants appeal.
George Wenning, who had been a resident of Republic county, Kansas, for some years prior thereto, was stricken with an illness in August, 1937, as a result of which his mind was affected. His sister, Lulu Tarkowski, was appointed guardian of his estate and took possession of his property. Among other assets were the note and mortgage which were the subject matter of this action. On May 10, 1938, the guardian commenced an action in foreclosure, alleging that on October 14, 1929, the defendants Clarence I. Banks and Pearl L. Banks had made and delivered to George Wenning their note of that date for $6,000, due five years after date with interest payable annually; that the defendants had failed to make any payments on the note and that there was due and owing the principal sum of $6,000 and interest thereon from October 14, 1934; $300 and interest thereon from October 14, 1930, and like amounts with interest from like dates in 1931, 1932, 1933 and 1934. It was also alleged that to secure the note the defendants executed a real-estate mortgage on certain described real estate. This mortgage, among other things, provided:
“But if said sum or sums of money or any part thereof, or any interest thereon, is not paid when the same is due, and if the taxes and assessments of every nature which are or may be assessed and levied against said premises, or any part thereof, are not paid when the same are by law made due and payable, then the whole of said sum or sums and interest thereon, shall, and by these presents, become due and payable, and said party of the second part shall be entitled to the possession of said premises.”
She prayed for money judgment and foreclosure. On January 24, 1939, the plaintiff filed her second amended petition, in which she alleged the note was long past due and of the indebtedness represented thereby “there is claimed by plaintiff from each of the defendants” $6,300 and interest from October 14, 1934, $300 and interest from October 14, 1933, and $300 and interest from October 14,1932.
On February 6, 1939, defendants filed a motion to compel the plaintiff to state whether or not interest for the period from October 14, 1929, to October 14, 1931, had been paid and, if so, to whom, when, in what manner, etc. This motion was overruled and the defendants then filed a verified answer in which they denied all of the allegations of the second amended petition except nonpayment of principal and interest, and alleged that the taxes assessed for the year 1930 were not paid when by law they became due, and because thereof and because of nonpayment of interest the debt was barred before the suit was commenced. Shortly thereafter George Wenning died, his sister was appointed as administratrix of his estate, and was substituted as plaintiff, and she then filed a reply claiming an estoppel because of subsequent payment of taxes on June 17,' 1931. The defendants then moved for judgment on the pleadings, but before the motion was heard and on June 20, 1939, the plaintiff filed her application for leave to amend her second amended petition and to file an amended reply. The application stated that plaintiff sought permission to amend her pleadings in order that she might more definitely set forth her contentions in advance of the court’s ruling and to incorporate certain oral contentions and representations made in her behalf in arguments before the court, and to obviate any misconceptions or doubts as to her reasons, attitude and intentions in regard to matters in issue, and to that end she sought to amend her second amended petition by striking therefrom the words “there is claimed by the plaintiff” hereinbefore referred to and substitute in lieu “plaintiff only seeks recovery for principal and interest”; that she intended and still intends to waive and forego any portion of the interest which the defendants may not have paid on the indebtedness accruing on and prior to October 31, 1931, by reason of her lack of definite information as to payment or nonpayment of the same, and as to whether the time for payment had been extended by agreement, and further because of her opinion that the defendants were insolvent and the mortgaged real estate was of lesser value than the amount of the debt which she sought to recover. For the same reason she sought permission to file an amended reply. This motion was allowed and her second amended petition was amended to show that she sought recovery only for principal and interest from October 14,1932.
Defendants filed a motion to make definite and certain or for a bill of particulars. This was denied, and on July 18, 1939, they filed a verified answer admitting appointment of plaintiff as administratrix, execution and delivery of the note and mortgage, and “these defendants further state and admit that no part of the principal or accruing interest . . . had been paid,” etc.; and alleging the taxes for the year 1930 were not paid when due; that they had not paid any part of the principal or interest on the note and because of the nonpayment of taxes when the same became due and payable the debt became due, and action on the debt was barred by the statute of limitations. They further alleged plaintiff had no lien upon the described real estate and that the mortgage was barred by the statute of limitations.
On July 31, 1939, plaintiff filed a verified reply denying new matter in the answer and stating further that when she filed her second amended petition she then and still was unable to allege definitely whether interest due on October 14, 1930, on the debt sued on was or was not paid, or whether the time for payment was extended beyond June 17, 1931, by agreement between her brother and defendants, although she was informed and believed the interest was paid or such agreement made, the exact date and details being unknown to her; that because thereof no default in payment of the interest due October 14, 1930, existed on December 21, 1930, or on any date thereafter up to and including June 17, 1931; that by reason of the facts and premises she denied the allegation of the answer that no part of the interest had been paid, and that defendants should be required to make proof of the allegation of such nonpayment and that a default of payment occurred and existed concurrently with legal default in taxes, as claimed by defendants. There was also specific allegation there was no such concurrence of nonpayment of interest and taxes. By further allegation plaintiff admitted defendants failed to pay the first half of the 1930 taxes on or before December 20, 1930, but alleged that said taxes were fully paid June 17, 1931, by the defendants and any legal default was made good and that defendants were estopped from asserting or claiming any benefit or advantage therefrom. Defendants’ demurrer to the amended reply and their motion for judgment on the pleadings were denied and ultimately the case came on for trial.
At the trial, plaintiff suggested that under the pleadings the only issue related to the statute of limitations, and that being an affirmative defense, the burden was on the defendants. After some colloquy between court and counsel, the court indicated it would adopt plaintiff’s theory and hold the burden was on the defendants. The parties then made statements reviewing the situation, and the defendants then offered in evidence the original petition which contained the allegation that no part of the principal and interest had been paid, the note which contained no endorsements, and the mortgage which contained the acceleration clause heretofore referred to, and rested. On behalf of plaintiff, the plaintiff testified that her brother was a bachelor farmer; that he was injured in August, 1937, and died in March, 1939; that she found in her brother’s safety-deposit box a number of notes and mortgages, including those here involved, and that they were in like condition as when introduced in evidence; that prior to bringing suit she asked for payment and defendant told her he would try to get some money; later he returned and said he couldn’t get a loan; they examined the notes and papers in the safety-deposit box and he seemed more interested in another note of $1,064 which he had made. After some further conversations, which did not bear results, she commenced the action. She found no records of her brother’s except a small memorandum book which contained reference to. his parents’ estate, transactions with J. E. Chick, Perry Smith and Joe Yytlacil, whose notes he held, and on one page the name of “C. I. Banks,” under which are noted three amounts of 130, 100 and 100. Opposite the first amount appears “5/11.” Assuming that means May 11, no year is shown, nor is any other date noted. Another witness, Dumback, testified to a conversation with Banks late in November or early in December, 1930, in which Banks said:
“Tom, I have just got a notion to turn that farm over to George [Wenning], I just paid $300 interest and taxes coming due and I have a notion to turn it all over and start in over new.”
Another witness testified to a conversation with Banks in June, 1931, in which Banks said George (Wenning) had wanted some money, he (Banks) couldn’t raise it “but had raised George some money and had given him a note for the balance of it.” Joe Vytlacil testified that Wenning kept a book record which was not found or produced at the trial; that he owed him on a note and had paid interest. He identified his note which bore no endorsements. J. E. Chick testified he had paid Wenning $250, but couldn’t fix the date. In the memorandum book mentioned under the name J. E. Chick appears a series of dates and amounts and under the name Joe Vytlacil is a series of three amounts, but no dates.
To rebut the plaintiff’s evidence, the defendant Clarence I. Banks testified that he had executed the $6,000 note and the $1,064 note and that he had paid no interest on the $6,000 note nor any of the principal. He stated he had heard the testimony of Dumback, but that he had never talked with Dumback about his business with Wenning, nor had he told Dumback he had paid Wenning some money and got no credit for it. He also stated he didn’t recall talking to Davis, but that in 1936 he did offer to turn the farm back to George (Wenning). Mrs. Banks admitted her signature on the $1,064 note and said she never paid anything on the $6,000 note.
After hearing the testimony and the argument of counsel, the trial court concluded the defendants had failed to establish there was no payment of interest when it became due on October 14,1930. Under this conclusion, the debt was not barred by the statute of limitations, and the trial court rendered a judgment in favor of plaintiffs and against defendants for the amount due on the note as prayed for in the second amended petition and for foreclosure of the real-estate mortgage. The defendants appeal, and the claimed errors as presented in their brief will be considered.
As a preliminary to that discussion, it is to be observed that the $6,000 note which is the subject matter of the action was dated October 14, 1929, and due five years after date, with interest at five percent per annum, payable annually; that the note bears no endorsements of any payments, either principal or interest, but that when the action was brought on May 10, 1938, the cause of action was not barred by anything appéaring on the face of the note. The mortgage securing the note contained the clause heretofore quoted which provided that concurrence of failure to pay interest on the note and taxes on the mortgaged real estate accelerated the due date of the debt. It is also to be observed that the mental incapacity and subsequent death of the payee of the note presented some handicap to the guardian and subsequent administratrix of his estate, and also that by reason of his death the lips of the defendants were closed with respect to certain of their transactions and communications with the decedent. The fact taxes were not paid in November of 1930 was disclosed when defendants answered the second amended petition, and at least from that time on the avowed effort of the plaintiff was to so plead that the burden was on the defendants to prove concurrence of default of payment of interest and taxes, and the effort of the defendants was to so plead the burden was on the plaintiff to prove the contrary, and as a result issues were finally made up as hereinbefore outlined.
Defendants first contend their motion for judgment on the pleadings should have been sustained. In order for that to have been the case, the pleadings must have disclosed affirmatively that there was concurrence of default in payment of interest and taxes on December 20, 1930. Defendants insist that as originally filed the petition alleged a failure to pay interest due on October 14, 1930, and that at a later stage plaintiff admitted defendants had not paid the taxes due on December 20, 1930. But that last admission was made after the original petition had been amended and was made by the plaintiff in her reply which alleged'the interest had been paid or that there had been an agreement for extension of its payment. If it be assumed the claim for interest made in the original petition was an admission, then that pleading could be offered in evidence against the plaintiff, but it was subject to explanation by her. (See Arkansas City v. Payne, 80 Kan. 353, 102 Pac. 781; Watt v. Railway Co., 82 Kan. 458, 108 Pac. 811; Meek v. Deal, Adm’x, 87 Kan. 319, 124 Pac. 160; Betts v. Gilbert, 149 Kan. 431, 87 P. 2d 637.) At least a partial explanation was made in subsequent pleadings of the allegations of the petition concerning payment of interest. Bearing in mind the state of the pleadings when the court ruled on the motion for judgment, it appears the defendants were not entitled to judgment on the pleadings.
The next contention is that the trial court erred in holding the burden of proof was on the defendants to establish their claim that the cause of action was barred by the statute of limitations. Insofar as the note here is concerned, there is and can be no argument that the action was brought in time. The note contained no provision for acceleration, it was dated October 14,1929, and was not due until five years after date, or October 14, 1934. The action was commenced in May, 1938. The mortgage did contain a clause that if there was concurrent failure to pay interest on the note, and taxes on the real estate when they became due, the principal of the note became due and payable. Whether there was such a concurrence could never be ascertained from the face of the note and mortgage. The pleadings in the foreclosure case, as originally filed, did not disclose that any cause of action was barred. The face of the note and mortgage disclosed no situation where it was incumbent on the pleader to allege facts showing the cause of action was not barred. If there was any bar, it was by reason of a fact not appearing on the face of the petition, and in such case it must be raised by answer. (See Chandler v. Runnels, 138 Kan. 673, 27 P. 2d 232.) We need not discuss many authorities cited by defendants dealing with the burden of the plaintiff to plead and prove facts to show that a cause of action barred on its face has, by reason of those facts, not been barred. As to the petition originally filed, the burden of proof was on the defendants to plead and prove that taxes had not been paid at a time when interest was in default, so as to prove acceleration of the debt, with the consequence that action on it was barred because not timely begun. Ultimately the defendants answered alleging complete default on their part in paying any part of the note and concurrent nonpayment of taxes in 1930, and setting up the statute of limitations. That was affirmative pleading, and the allegation about taxes was new matter. The amended reply taking issue has been previously referred to. Without pursuing the matter further, we are of the opinion the trial court properly ruled the burden of proof was on the defendants to show there was concurrence of default in 1930 of payment of interest and taxes, and that the debt then became wholly due, and that the action was barred when begun in May, 1938.
Defendants also make some contention they made a prima facie case by offering the original note showing no endorsements of payments, the failure to pay taxes in 1930 being admitted by the pleadings, and that the burden of proof then shifted to the plaintiff. It is true that when defendants made a prima facie case, the burden of going forward shifted to the plaintiff, but that did not change the burden of proof. It stayed with defendants throughout the trial. (See Piper v. Matkins, 8 Kan. App. 215, 217, 55 Pac. 487. And see Cable v. Brotherhood of Railroad Trainmen, 150 Kan. 242, 246, 92 P. 2d 81, where it was said:
“Appellant complains that the burden of proof was placed upon her at the beginning of the trial. We think under the pleadings that ruling was proper. Aside from that, in these cases, the question of the burden of proof is largely, which one should first go forward with evidence. Each party introduced all the evidence he or she desired to introduce, the court heard and considered it all, and the question of which had the burden of proof was not of much importance. (Loveless v. Ott, 121 Kan. 728, 250 Pac. 324.)”
Defendants also complain that the evidence does not show payment of the interest in 1930. This argument is predicated largely on the contention the burden of proof was on the plaintiff to prove it had been paid. That phase of the matter has been discussed. There was evidence that Clarence Banks had told others he had paid his interest. The book account did not agree with this statement, but what it showed was somewhat inconclusive. Banks said he had not paid, either as stated by the witnesses or as shown by the book account. The whole matter, however, was before the trial court, and the question of who and what to believe was its function, not ours.
It is further contended that plaintiff is bound by the entries in George Wenning’s memorandum book; that when he entered the first amount of 130 as of “5/11” and two subsequent amounts of 100 and 100 without dates, it was an admission against interest, which plaintiff could not dispute by the testimony of others as to what Banks said about paying interest to Wenning. When the memorandum book was offered in evidence, defendants objected because it was not properly identified, and because there was no showing it was kept in regular course of business. The court stated it was not very-well identified, but in view of the situation it would admit it for what, it was worth. Whatever the rule may be as to the binding force of an admission deliberately made by the party to an action, in the situation here presented it should not be applied.
Some complaint is also made that the trial court erred in refusing to permit Banks to testify as to the consideration of the note for $1,064. Banks had testified he signed the note for $6,000 and the note for $1,604. He was asked what was the consideration for the last note and objection was made that it of necessity related to a transaction with a person since deceased. The court sustained the objection. Thereafter the witness stated he had not paid any interest on the $6,000 note. He was then asked if the $1,064 note included any interest on the $6,000 note and objection was sustained. The affidavit offered in connection with the motion for a new trial need not be detailed. It states that had Banks been permitted, he would have testified to a series of transactions with Wenning which ended in his giving the $1,064 note. Under G. S. 1935, 60-2804, the witness was incompetent to testify in his own behalf, and the trial court ruled properly in excluding the proffered testimony.
The briefs contain citation of many authorities in support of the above contentions, and of others collateral thereto, which have been examined, but cannot all be mentioned and discussed. An examination of the whole record discloses that the trial court considered all of the competent evidence and thereafter rendered judgment in favor of the plaintiff. That judgment includes within it a finding that the cause of action was not barred by the statute of limitations by reason of concurrence in default of payment of interest and taxes in 1930. There is no claim the judgment is not correct if the cause of action out of which it grew was not barred.
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